| Ky. Ct. App. | Mar 20, 1896
delivered the opinion oe the court.
In November, 1895, at a regular election, as provided by the Constitution, the appellee, Charles McAdams, was elected to fill the unexpired term of the office of circuit court clerk of Hancock county, made vacant by the death of R. L. Chambers, who had been elected in November, 1892.
Chambers died on the 19th of November, 1894, leaving three years or more of the term of office to be filled. A part of the term was filled by an appointment by the circuit judge until the regular election, which'took place in November, 1895. There were three candidates for the vacancy— Sterrett, tlie appellant, who had been appointed,-Charles C. McAdams and John Owens — all of whom were voted for at the polls, McAdams receiving 767 votes; Will L. Sterrett, 632 votes; and John Owens 229 votes. The regularly constituted board canvassed the returns, and gave to the appellee, McAdams, a certificate of his election. He executed bond, took the oath of office, and demanded of the appellant, Sterrett, the custody of the books, records and papers of the office, and his demand was refused on the ground that no proclamation had been issued, or an election called by the circuit judge of that county to fill the vacancy. This is the only question involved on the appeal.
It appears that fully ninety per cent, of the voters cast their votes at the election, and that it was conducted in
Section 1528 of the Kentucky Statutes provides that “a vacancy in the office of Commonwealth’s attorney or circuit court clerk -shall, in like manner, be temporarily filled for the same time by the circuit judge of the district, who shall also issue Ms writ of proclamation for an election to fill the remaining vacancies.”
The circuit judge had the power to make the appointment, as is conceded, until the regular election in November, 1895, and his power of appointment then ceased, or the appointee’s right to continue in office then ended; so if a failure to issue the writ of election rendersthe election void, there was no clerk for the county after November, 1895, or if the failure to call an election authorized the appointee to continue the discharge of his duties, it would result that the action of the judge would deprive the voters of their right to fill the vacancy and vest in the judge the power to fill the vacancy for the whole of the unexpired term.
It is insisted by counsel there is a difference between a regular election to fill the whole- term and a special election to fill the vacancy. In the first instance the voters must take notice of the time for holding the election as fixed by the Constitution, but in the second a notice is required, that the voters may know there is a vacancy to be filled and an election to be held. Where there is a vacancy in a case like this the Constitution in express terms fixes the time for holding the election; and, as to the notice of the vacancy, it appears that there was an appointee until this regular election, and it-must be presumed the voters knew of the death -of Chambers, and that an election must follow; but whether they were informed as to the time for holding the election or .not, it is admitted the appellant was elected to fill a va
The failure of the circuit judge to issue his proclamation, when the law fixed the time for holding it, does not make the election void. It is merely directory in this class of •cases and not essential to the validity of the election, and such should be the construction, for if otherwise the county would be without a clerk, as the power to appoint had already been exhausted, and the lime for holding under the appointment expired.
In cases where the time and place for holding an election must be designated by the one authorized to call it, the rule would be different; but here there was a free and full vote at a time fixed by law, and no other time could have been designated by the circuit judge, and to- say that his failure to issue the writ is to defeat the right of the appellee to his office would be sacrificing substance to form, and work an injustice to the appellee and those who sought bytheir votes to give him the office.
This question was 'in effect decided by this court in the case of Berry v. McCullough, 94 Ky., 247" court="Ky. Ct. App." date_filed="1893-04-08" href="https://app.midpage.ai/document/berry-v-mccollough-7132804?utm_source=webapp" opinion_id="7132804">94 Ky., 247, and Shelley v. McCulloch, 17 Ky. Law Rep., 53, holding the election valid.
Judgment affirmed.