93 Ky. 600 | Ky. Ct. App. | 1893
delivered the opinion of the court.
The controversy in this case is over the office of a commissioner of the sinking fund of the City of Louisville. The plaintiff, John J. Otter, who is the appellee in this court, claims to have derived title to the office by an election held by the general council of the city on the 25th ■of October, 1889, and the defendant, Vm. Tillman, claims his title under an election by the commissioners of the linking fund on the 12th of November following.
The provision of the Act in relation to the sinking fund authorizing the election reads as follows: “ The general council shall, in the month of October in each year, elect a commissioner of the sinking fund to fill the place of the commissioner whose term of service ex
A question has been raised as to the burden of proof,, and, without discussing the sufficiency of the answer, it is sufficient to say that as the plaintiff, Otter, was asserting his title to the office, it was incumbent on him to make out his case, as it is well settled that such a proceeding is like the enforcement of any other private right, when prosecuted by or in the name of the party claiming to have been injured, but when in the name of the Commonwealth, alleging the usurpation of air office by one of its citizens, the burden is on the defendant to show by what authority he holds it. (State v. Harris, 3 Ark., 570; People v. Utica Ins. Co., 15 Johns, 358; Miller v. English, 21 N. J. Law, 317.) In this case Tillman had been in possession of the office and was again chosen by a board empowered upon a certain contingency to make' the selection, and the burden was clearly on the plaintiff",
Was the plaintiff, Otter, elected by the general council •on the 25th of October, 1889, is the sole question in this •case, and if he was, then the judgment below should be .affirmed. The board of councilmen held a meeting at their chamber in the city hall on the 24th of October, 1889, and a resolution was passed, all the members being present but one, for a joint session at nine o’clock that •evening for the purpose of electing a sinking fund commissioner. The board of aldermen, holding a session in the same hall but in a different room, refused to go into the election’and rejected.the resolution. A committee of conference was then appointed by the board of councilmen, with a resolution to the effect that an adjournment be had until the 28th of October (the same month), when a joint meeting would be held, and this was rejected by the board of aldermen. On that same evening the mayor, at the request of the president of the board of aldermen, each one being a commissioner of the sinking fund, adjourned the board of aldermen until the 7th of November, 1889, and if the power to adjourn this board so as to prevent this election was vested in the mayor, then no election could be held by the people or their representatives (the members of the general council) for
The board of councilmen met the next day, the 25th of October, and six of the aldermen with them, and eighteen councilmen and six aldermen voting for tlie plaintiff he was elected commissioner, there being more than two-thirds of the general council voting for him. This court is now asked to declare that election invalid because a majority of the members of the board of aider-men, with its president in the lead, had refused to discharge their duty, and' purposely, as their own exhibits, filed show, adjourned or attempted to adjourn to a period with a view of preventing an election by the general council and in utter disregard of both public and private-interests. They were, however, still in session, with six of the members ready to act with the other board. They did act, and if the absconding members had remained could not have prevented the election of the plaintiff, as-more than two-thirds of the members of the joint.session and of the entire general council voted for him. It is-insisted that this body, the general council acting as the mere agents of the State in the election of men to control as members of the sinking fund vast sums of money, should be regarded in the light of legislative branches of the government with the right of a minority to resort to-parliamentary rules in order to violate a statute and prevent an election of those who are to control a corporation entirely distinct from the municipal government which gives to the general council its existence. It is conceded that the councilmen and board of aldermen are distinct, the one from the other, and that in their legislation for
The judgment below is affirmed.