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Jones v. Williams.
COURT OF APPEALS OF KENTUCKY
153 Ky. 822; 156 S.W. 876; 1913 Ky. LEXIS 926
May 20, 1913, Decided
PRIOR HISTORY: [***1] Appeal from McCreary Circuit Court.
DISPOSITION: Motion of plaintiff to reinstate the injunction overruled.
COUNSEL: L. G. CAMPBELL, O'REAR & WILLIAMS and MCQUOWN & BECKHAM for appellant.
DENTON & FLIPPIN for appellee.
JUDGES: JUDGE SETTLE.
OPINION BY: SETTLE
OPINION
[**877] [*822] OPINION BY JUDGE SETTLE--On Motion of Plaintiff to Reinstate a Temporary Injunction Dissolved by the Circuit Judge.
The allegations of the plaintiff's petition fail to show him entitled to retain the office of County Judge of McCreary County, or that the defendant is wrongfully interfering with his performance of the duties thereof, as alleged. The validity of the election under which the defendant asserts title to the office of county judge in and for the County of McCreary, having been sustained in McCreary v. Williams, 153 Ky. 49, 154 S.W. 417, that question will not again be inquired into; and while it is true that he was postmaster at the time of his election and he could not have continued in that office and at the same time have held that of County Judge of McCreary County--the two offices being incompatible under the State Constitution, section 237--his resignation as postmaster having taken place [***2] before his commission as county judge was received, the commission when received perfected his title to the latter office and gave him immediate right to qualify and enter upon the performance of his duties.
[*823] The section of the Constitution, supra, does not in words or meaning require that the defendant should have been eligible to the office at the time of his election, but eligible when entitled to qualify and enter upon the performance of the duties of the office. Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137; DeTurk v. Com., 129 Pa. 151, 15 Am. St. Rep., 705.
The defendant having been elected to fill a vacancy, was not required to qualify on the first Monday in January following his election, but could do so after receiving his commission. When so entitled to qualify, and upon his doing so, it was and will be the duty of the plaintiff, who was a mere appointee, to surrender to him the office of County Judge and the records, furniture and property thereof. Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229. The defendant's commission, which was obtained only by mandamus proceedings, was not received by him until April 26, 1913. Before [***3] that date he had tendered to the clerk of the McCreary Circuit Court, a bond with sufficient surety and offered to take the oath of office as county judge. The clerk, however, refused to accept the bond or administer to him the oath. But, waiving consideration of the question whether this tender of a bond and offer to take the oath was or not premature, certain it is that on the 28th of April, two days after defendant received his commission, he again went before the Circuit Clerk, tendered his bond and offered to take the oath of office. The clerk refused to accept the bond or administer the oath, because the sureties in his official bond objected to his doing so. As it is admitted the sureties in the bond tendered April 28, are solvent and satisfactory, the clerk erred in refusing to accept it, and also in refusing to administer to the defendant the oath of office required of a county judge. It is his duty to yet accept the bond and administer the necessary oath and both these duties must be forthwith performed by him, that defendant may at once enter upon the discharge of his duties as County Judge.
It is also the duty of the plaintiff Jones to surrender to the defendant the office [***4] in question, its records, furniture and other property, so soon as his bond shall have been accepted and he has taken the oath of office. Plaintiff has no further right to the office of county judge, nor had he any such right when his injunction was issued. Wilson v. Tye, 126 Ky. 34, 102 S.W. 856; Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828.
[*824] The circuit judge was clearly within the law in dissolving the injunction.
For the reasons indicated the motion of plaintiff to reinstate the injunction is overruled. Judges Hobson, Carroll, Lassing and Turner, who sat with me in hearing and considering the motion, concur in the conclusion expressed in the opinion.
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