95 Ky. 415 | Ky. Ct. App. | 1894
delivered the opinion of the court.
Tlie controversy between tlie appellant and tlie appellee is shown by the following “ agreed case,” submitted by the parties to the lower court for adjudication, to-witp.
“ That on the first Saturday of March, 1892, and at the regular city election that year, defendant, I). Y. Johnson, was duly elected treasurer of the City of Lexington, and
The judgment was for Wilson, and Johnson has appealed.
Section 167 of the Constitution of 1891 provides that “all city and town officers in this State shall be elected or appointed, as provided in the charter of each respective town and city, until the general election in November, 1893, and until their successors shall be elected and qualified, at which time the terms ,of all such officers shall expire; and at that election, and thereafter as their terms of office may expire, all officers required to be elected in cities and towns by this Constitution, or by general laws enacted in conformity to its provisions, shall he elected at the general elections in November, but only in the odd years, except members of municipal legislative boards, -who maybe elected either in even or odd years, or partin the even and part in the odd years,” etc.
The treasurer of the city, under the old charter, was
Therefore, although Johnson’s term under the old charter would not expire until in April, 1894, yet in view of the foregoing section he took the office “until the general election in November, 1893,” but he might hold over until his successor should be elected and qualified. But it is said that there is no provision in the law for the election in November of a treasurer for cities of the second class; that the section provides only that at that election officers required to be elected in cities and towns by the Constitution (and there is no such requirement as to the office of treasurer), or by general laws enacted in conformity to its provisions (and there were none for this city), shall be elected at the general elections in November.
In other words, that under section 160 the mayor or chief executive, police judges, members of legislative
If the term of the appellant did not expire in November, 1893, it would seem that he must hold his office until in 1897, or at any rate until ousted by legislative enactment. Under the provisions of section 166 of the Constitution, the law of the city, as embraced in its charter, was-continued in force, save in so far as" inconsistent with the Constitution, and therefore the election for treasurer provided for in the old instrument was properly held under the new in November, 1893, when that officer’s term
Moreover, it would seem, by reason of the continuation of the provisions of the charter, which required the election of the treasurer by the qualified voters, that his election was one required by the new instrument. The old law required his election, and this requirement was continued in the new by keeping the old law7 alive and in force, the time only of the election being changed and the expiration of the term. It was therefore an election under the new law of an officer required to be elected by the new law, because the new prolonged the old in this particular.
While some confusion has arisen by reason of the failure of the G-eneral Assembly to pass, prior to November, 1893, the general laws contemplated by the framers of the Constitution, thus giving rise to the somewhat plausible contention of the appellant, we are convinced that the construction adopted by the learned judge below is more nearly in accord with the intent and meaning of the new instrument.
Judgment affirmed.