105 Ky. 294 | Ky. Ct. App. | 1899
delivered the opinion or the coubt.
This action was brought in the Wolfe circuit court, by the appellants, W. T. Swango and Morton Pieratt, against John M. Rose and Eliza James, appellees; and it is alleged that appellee J. M. Rose is claiming to be one of the trustees of the common school district No. 26, Wolfe county, and it is alleged that Rose is not a trustee, but that Pieratt is, and that Rose is usurping the office of trustee held by Pieratt. It is admitted that appellant Swango and appellee James are trustees. The controversy arose over the employment of a teacher. The appellants employed one person as teacher; the appellees, another. ‘
A temporary injunction was issued as against appellees, trustees, but it did not apply to the teacher. On final hearing, this temporary injunction was dissolved, and the court adjudged that the appellee Rose was the third trustee, and that appellant Pieratt was not, and dismissed the petition. From that judgment, this appeal is prosecuted. :
The facts in evidence show that Swango and James are
The county superintendent says, in his deposition, that the appointment was made because, as he understood the law, there was a vacancy, and that there was no charge of misconduct or of anything against Pieratt.
There is no question of the power of the county superintendent to fill a Aacancy by appointment, and there is no question as to the regularity of the proceedings had herein. The sole question presented is, was there a vacancy July 1,1898, by the expiration of the term of J. M. Pieratt? If there was, Rose was legally appointed, and is the trustee. If there was not a Amcancy, Pieratt is the trustee. Prior to the act of March 17, 1898 (being chaptér 44 of the Acts of 1898), the election of school trustee was held on the first Saturday in June of each year, and the trustee then elected took his office July 1st following, and held for a term of three years, and until his successor was elected and qualified. Appointments to fill the vacancies in the office of trustee of common schools are not like appointments to other offices. Appointments generally to fill vacancies are till the next regular election, and then a person is elected to fill the unexpired term; but, by the
By the act of March 17,1898, which, by reason of an emergency clause, went into effect, bn its approval, the election of trustees was changed from June till October of each year; but it was still provided that the trustee elected should go into office July 1st, after his election, and hold for a term of three years; as before.
.There could be no 'election in June, 1898,, to select a person to be trustee from July 1, 1898; when the term of Pieratt expired; but, by the law, he would be elected in October, 1898, and go into office July 1,1899. There is no express provision in the act of 1898 as to whether the person in office should hold over, or that authorized the county superintendent to appoint a trustee for a full term of three years from July 1, 1898. The Legslature, in passing the act of March 17, 1898, must have known that the term of one trustee in each district in the State would expire before the election provided for by the' law as amended could be held. It must have known that, by the very section amended, the trustee would hold till his successor was elected or appointed and qualified; and it must have known that, if the county superintendent appointed a trustee, it was to the end of that term. If the intention was to permit the county superintendent to appoint, he must appoint one trustee in each district for a full term of three years. If, on the other hand, it was intended that the trustee should hold over, it would result in extending for one year the terms of the three trustees in office. One
Judge Hazelrigg delivered response to petition for rehearing.
As the county superintendent, “in case of controverted right to the office of trustee,” is empowered “to recognize a trustee among the contestants until the dispute has been settled,” it would seem to follow that the acts of one so recognized, in the employment of teachers, etc., must be held valid; but, as this question is not presented in the record before us, we must decline the suggestion of counsel to settle it, and can and do make no authoritative decision on the subject. Petition overruled.
