109 Ky. 295 | Ky. Ct. App. | 1900
OPrxiox OR the court by
Arrirmihg.
At the November election, 1899, the appellee, Coulter, and the appellant, Sweeney, were opposing candidates for the office of auditor of this Commonwealth. The State board of election commissioners issued to the appellant, Swreeney, the certificate of election, and therefore the ap-pellee, Coulter, contested his right to the office before that board, the law conferring upon it the authority to try the contest. This board heard the contest, and adjudged that the appellant had not, but that the appellee had, been elected to that office, and duly entered its judgment in accordance with its finding. The appellant continuing to occupy the rooms in the executive building where the du ties of the office of auditor are performed, and refusing to surrender it, this action was instituted to enforce the judgment of the board of election commissioners, and have
The first question presented is as to the right of the appellant to dismiss his appeal without prejudice. Our Code of Practice provides that a plaintiff in an action may dismiss it without prejudice, but this court has repeatedly held that this can not be done where it results to the prejudice of some one interested in its prosecution. Numerous cases might be cited on this question. The only two reported cases cited by counsel for appellant are Cobb v. Waggoner, 17 B. Mon., 562, and City of Bowling Green v. Elrod, 14 Bush, 216, which substantially hold that, where an appeal is granted in the court below, and is dismissed because the appellant fails to file the transcript within the time prescribed by law, he is not thereby barred from having the appeal granted by the clerk of this court. The rule announced is correct. Where the court has permitted
We are not aware that the precise question h.ere involved has ever been adjudged by this court. In State v. Moriarty, 20 Iowa. 595, it appeared that the appeal had been prosecuted by the State, and the attorney general asked that the appeal be dismissed. It did not appear that the appellee would be prejudiced by the dismissal of the appeal, and in referring to the right of the appellant' to dismiss his appeal, the court said: ‘’This is the right of the State as well as of any other appellant, unless it appears that the appellee will be injured or prejudiced thereby. Such prejudice or injury is not shown in this case, and the appeal is therefore dismissed, at appellant’s cost.” In Merrill v. Dearing, 24 Minn., 179, it appeared that the appellee moved to affirm the judgment under some rule of the court. In Opposition to the motion the appellant presented a notice which had been executed upon the appellee that the appeal was or would be dismissed, and in passing upon these motions the court said: “There is no statute or rule of court controlling the practice in relation to the dismissal or withdrawal of appeals to this court. Where there is no such statute or rule of court, we think that, if an appellate court has once got jurisdiction of a cause, it can not be deprived of that jurisdiction, and the respondent of a decision, at the mere will of the appellant.” In Whitney v. Cook, 99 U. S., 607, (25 L. Ed., 446), there was a motion under the rule of the court to affirm the judgment, and which rule also author-ised to he united with a motion to affirm a motion to
It is urged that the election law enacted in 1S98 is un
It is also urged' that the vacancies in the State board •of election commissioners could only be filled by appointees of the Governor. The vacancies resulted from the resignation of Pryor and Ellis, leaving Poyntz alone as a member of the board. The.act expressly provides that the remaining member or members are authorized to fill vacancies. Poyntz proceeded to do so by the appointment of Fulton, and he and Fulton selected Yonts as the third member of the board. The Governor appointed Cochran and Mackoy. The question was directly presented to this court in a suit between the appointees of the Governor and those of Poyntz as to who had the anthority to fill the vacancies, and this court, in Poyntz v. Shackelford, 54 S. W., 855, decided that Poyntz had the right under the law to appoint Fulton, and he and Fulton to appoint Yonts.
It is averred in the answer that Poyntz had accepted, a pass on the Chesapeake & Ohio Railroad, and had, by reason thereof, forfeited his office as a member of the State board of election commissioners, by virtue of section 197 of the Constitution, which reads as follows: “No railroad, steamboat or other common carrier, under heavy penalty to be fixed by the General Assembly, shall give a free pass or passes, or shall, at reduced rates not common to the public, sell tickets for transportation to any State, district, city, town or county officer, or member of the General Assembly, or judge; and any State, district, city, town or county officer, or member of the1 General Assembly,
The appellant sought to impeach the judgment of the State board of election commissioners by averring that Poyntz, before the appointment of Fulton, and while he was a member of the board, on cx parte affidavits, refused to sign the certificate issued to the appellant, and rendered a dissenting opinion, in which he held ‘that the appellant had not been elected, and that the appellee was entitled1 to the certificate'; that he thereafter and notoriously stated on numerous occasions that the appellant was not entitled to the office of auditor; that Fulton, prior to his appointment, published in the newspapers an article signed by himself, in which he stated that the vote of Louisville should be excluded on account of the alleged military interference; that they had expressed their opinions, and were prejudiced against the appellant, and were partial to the appellee; and that an affidavit setting forth the foregoing facts was filed before the board before it proceeded to hear the contest, which was then pending before it. Under the law as it existed before 1898, the Gov
It is urged that the hearing which was given the appellant did not afford him due process of law, as required by the Federal Constitution. The-tribunal which tried the contest was created by a law not in conflict with the Constitution of the State. Due notice was given to the appellant by the lappellee that he would contest' Ms right to hold the office of auditor before that tribunal. From