149 Ky. 62 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
Appellant, ' Charles Wooton, brought this action against P. T. Wheeler, Frank Horn and Albert Williams, election commissioners of Perry county, and C. W. Napier, county attorney to compel the election commissioners to canvass the votes cast for county attorney at the regular November election in 1911, and to issue him a certificate of election, and also asked that he be declared duly elected to the office of county attorney at
It appears from the petition that appellee, C. W. Napier, was elected county attorney for Perry county at the regular November election, in 1909. On the first Monday in January, 1910, he qualified as such officer, and continued to dischárge the duties of the office until August 27, 1910. On that day he was appointed deputy county court clerk of Perry county. He accepted the appointment, and thereupon took the oath of office and entered upon the discharge of the duties of that position. He continued to discharge the duties of deputy county court clerk until September 2, 1910, when he resigned that position and was, by order of court, discharged from further duties as such officer. It further appears that the Republican party failed to nominate a candidate for the office of county attorney of Perry county to be voted for at the November election, 1911, and that appellant, on the 9th day of September, 1911, filed a petition before the county court clerk of Perry county, signed by one hundred legal electors of Perry county, who were citizens and residents thereof, petitioning and requesting the county court clerk of Perry county to cause to be printed the name of appellant on the official ballot to be used at the regular November election, 1911, as a candidate of the Republican party for the office of county attorney. The petition stated that the petitioners were Republicans and gave their residences and postoffice addresses. It further stated that they desired to vote for appellant as county attorney to fill the vacancy in the office for the remainder of the term. This petition was filed with the county clerk not less than fifteen days and not more that sixty days next preceding the November election, 1911. It was further charged that the offices of county attorney and deputy county court clerk are incompatible, and that appellee, Napier, by his acceptance of the office of deputy county court clerk, vacated the office of county
As the petition alleged two separate causes of action, one against the members of the Board of Election Commissioners for a mandamus, and the other against appellee, Napier, to recover the office, and these causes of action do not affect all the parties alike, and are not of the kind which may be united under the Code, it follows that the trial court properly sustained the motion to elect.
We deem it unnecessary to pass on the questions whether or not the offices of county attorney and deputy county court clerk are incompatible, and whether appellee, Napier, by his acceptance of the office of deputy county court clerk, vacated the office of county attorney. Nor is it necessary to discuss the propriety of the county clerk’s action in refusing to place appellant’s name upon the ballot, or to consider many other questions discussed by counsel. In an action by one to recover an office, his legal right to the office must affirmatively appear; that is, he must make out his own case, and establish title to the office in himself. He has no right to appear for the State, by an action in his own name, show that the incumbent is holding an office to which he is not entitled, when he (the plaintiff) has no claim to it himself. Tillman v. Otter, 93 Ky., 600. That being true, the only question we need to consider is appellant’s right to the office. It is admitted in the petition that the ballot did not desig
Judgment affirmed.