of Const. § 160, is one who is the custodian of A fiscal officer of a city, within the meaning the public treasure.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 292; Dec. Dig. § 124.*]

monwealth's demurrer to the defendant's | 3. MUNICIPAL CORPORATIONS (§ 124*)—“FISplea of former conviction. The plea con- CAL OFFICER." forms to subsection 4 of section 164 of the Criminal Code of Practice, and the demurrer should have been overruled. Cawein v. Commonwealth, 110 Ky. 273, 61 S. W. 275; Milburn Wagon Co. v. Commonwealth, 104 S. W. 323, 31 Ky. Law Rep. 937. The court also erred in instruction No. 1 in not limiting the conviction of the appellant for operating a poolroom at the place mentioned in the indictment. While we would not reverse the case for the error in the instruction pointed out, upon another trial the court will conform to the suggestion here made.

For the reasons given, the judgment is reversed for a new trial upon principles consistent with this opinion.

EHRLICH v. COMMONWEALTH. (Court of Appeals of Kentucky. Feb. 16, 1909.) Appeal from Circuit Court. Campbell County. "Not to be officially reported."

George Ehrlich was convicted of maintaining a public nuisance in operating a poolroom, and appeals. Reversed.

C. L. Raison, Jr., and John B. O'Neil, for appellant. Jas. Breathitt, Atty. Gen., and W. A. Burkamp, for the Commonwealth.

BARKER, J. This case contains the same errors complained of in Anthony Bernero v. Commonwealth (No. 2,769, this day decided) 116 S. W. 312, and the judgment herein is reversed for the reasons given in the opinion in

that case.

DORIAN v. WALTERS.

4. MUNICIPAL CORPORATIONS (8 124*)-OFFICERS "FISCAL OFFICER."

A city officer who collects or receives the public money, though he do not hold it, is a fiscal officer within Const. § 160, making fiscal officers of cities of the second class ineligible to succeed themselves in office, and providing that the term "fiscal officer" shall not include an officer whose chief duty is not the collection or holding of public moneys.

Corporations, Cent. Dig. § 292; Dec. Dig. § 124.*]

[Ed. Note. For other cases, see Municipal

5. MUNICIPAL CORPORATIONS (§ 124*)—OFFICERS-FISCAL OFFICERS-"OFFICER HOLDING PUBLIC MONEY."

That a statute requires the city treasurer to deposit daily the public money in a designated depository would not make him other than an officer holding the public money within the meaning of Const. § 160; the requirement being merely a direction as to how he shall hold it.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 292; Dec. Dig. § 124.*]

6. MUNICIPAL CORPORATIONS (§ 124*)—Offi-
CERS-ELIGIBILITY-CONSTRUCTION OF CON-
STITUTION "ELECTED UNDER THE CONSTI-
TUTION.

The phrase "elected under the Constitution" in Const. § 160, providing that no fiscal officer of a city of the first or second class, after the term of office to which he has been elected under the Constitution, shall be eligible for the succeeding term, means elected since the adoption of this Constitution, and does not limit the provision to offices created by the Constitution. [Ed. Note.-For other cases, see Municipal

(Court of Appeals of Kentucky. Feb. 11, 1909.) Corporations, Cent. Dig. § 292; Dec. Dig. § 1. MUNICIPAL CORPORATIONS (§ 124*)-OFFI-| CERS-ELECTION "FISCAL OFFICER.

The office of city treasurer of cities of the second class is created by statute, and Ky. St. § 3132, makes it the duty of the treasurer to receive and hold the city's money. Const. § 160, provides that no fiscal officer of a city of the second class, after the term of office to which he has been elected under the Constitution, shall be eligible for the succeeding term, and that "fiscal officer" shall not include an officer whose chief duty is not the collection or holding of public moneys. Held, that the city treasurer of a city of the second class is a "fiscal officer," within Const. § 160, and not eligible to succeed himself in that office.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 292; Dec. Dig. 8 124.

For other definitions, see Words and Phrases, vol. 3, p. 2825.]

2. OFFICERS (§ 32*) — ELIGIBILITY - HOLDING

OVER OF INELIGIBLE Officer.

If the incumbent of an office were ineligible to re-election, the fact that he received a majority of the votes for re-election and the certificate of election would confer no right upon him, but, as the certificate would be void, there would be no one elected to fill the office, and a vacancy would exist though the Constitution permits him to continue to exercise the duties of the office until his successor qualifies.

[Ed. Note. For other cases, see Officers, Cent. Dig. § 47; Dec. Dig. § 32.*]

124.*]

7. OFFICERS (§ 83*)-TITLE TO OFFICE-ACTION TO RECOVER OFFICE-Burden of Proof.

One who sues to recover a public office has the burden of proving every fact essential to show his title, his recovery depending upon the strength of his own title, and not upon the weakness of his adversary's.

[Ed. Note. For other cases, see Officers, Cent. Dig. § 121; Dec. Dig. § 83.*] 8. ELECTIONS (§ 267*)-CANVASS-CERTIFICATE OF ELECTION-CONCLUSIVENESS.

The possession of a certificate of election raises no presumption of the eligibility to the office of the person to whom it is issued, since the canvassing board merely tabulates and certifies the returns of the election, and has no power to pass upon the eligibility of the person voted for.

[Ed. Note. For other cases, see Elections, Cent. Dig. §§ 242, 243; Dec. Dig. § 267.*] 9. OFFICERS (§ 32*)-QUALIFICATION-ELIGIBILITY-POWER OF OFFICER ADMINISTERING OATH TO DETERMINE.

The officer whose duty it is to administer the oath of office to an elected officer and accept his official bond has no jurisdiction to inquire into the eligibility of the person presenting himself for qualification, but, if the person tenders himself with the bond within the time prescribed by law, he must accept the bond if good, and administer the oath if the person offering will take it, if the certificate of the canvassing

board shows he had received the requisite num-term of four years beginning January, 1908. ber of votes at an election legally held to fill that office.

the vacancy in the office at the November election, 1908, which was the proper time for filling the vacancy by election, if the vacancy existed. Appellee was elected to the office at that election. He was given the certificate by the canvassing board, executed bond, and took the oath of office. Appellant refusing to give up the office, but persisting in discharging his duties, appellee brought this suit against him to recover possession of the 11. OFFICERS (§ 83*)-ACTION TO RECOVER OF-fering with him in the discharge of its duoffice, and to restrain appellant from inter

Appeal from Circuit Court, McCracken towns and cities, the manner in, and causes County.

nicipal officers of first and second class cities, applied only to fiscal officers provided by the for re-election. One was the chief executive by whatever name he might be called, the other was the "fiscal officer," by whatever name he might be called. That no doubt might arise as to what that term included the section excludes from its meaning assessing and auditing officers, and specifically, by elimination of all others, confines it to such officers only as collect or hold the public money. The name of the officer was not given because the Legislature or the municipal board might confer upon some other office than treasurer by name the duty of collecting and holding the public money. It was intended to disqualify the person who discharges those functions, so he was described instead of named. A fiscal officer is one who officially is the custodian of the public treasure. Unless the words of the section apply to a city treasurer who collects and holds the public money collected for the city, then there is no one to whom they could apply. There is a suggestion in argument that, as a statute requires the treasurer to deposit daily the public money in a designated depository, he does not hold the public money; but we think he does. Requiring him to deposit it in a selected depository merely directs how he shall hold it. Besides, he undoubtedly collects or receives the public money, and that act brings him within the terms of section 160 of the Constitution.

Constitution instead of to all fiscal officers, whether provided expressly by the Constitution or allowed by it. With this view of the situation, we look again to the expression "elected under this Constitution" to determine what qualification of the preceding clause was intended by it. There were several cities in this commonwealth which would fall under the allotment of first and second classes of cities in the classification of cities and towns required by the Constitution of 1891 when it was adopted. Those cities then had mayors, as well as treasurers, or other fiscal officers. Theretofore such officers were not by the Constitution then in force ineligible for re-election. Each city and town had then its own special charter. The officers provided for each were selected in different ways, and for different terms, perhaps. A number of the provisions of the new Constitution were suspended by it as to the then official incumbents. The convention intended to make the inhibition against re-election of certain municipal officers apply to those officers who were elected after the adoption of the present Constitution, and not to all such officers. It was meant to except mayors and chief executives and fiscal officers then in office, some of whom might have been elected only a short while before. "Elected under this Constitution" means, we think, elected since the adoption of this Constitution. This gives all the words of the section some meaning, and a consistent one, and one, too, in harmony with the evident main purpose in the adoption of the provision. We conclude that appellant was ineligible for re-election.

But appellant's main contention is that the city treasurer is an officer created not by the Constitution, but by statute, and that it is only such fiscal officers as are "elected under this Constitution" that are ineligible for reelection; it being argued that, unless the ofGetting away from the main question, apfice is created by the Constitution, an election pellant contends that the case was not practo fill it is not an election to an office under ticed right. Appellee's petition to recover the Constitution. The section does not nor the office from appellant sets out the fordoes any other provision of the Constitution mer's election at the regular November eleccreate any municipal fiscal office. If appel- tion, 1908, and avers that he took the oath lant's argument is sound, it would follow that of office and executed the bond required by the provision of section 160, disqualifying law before the city clerk of Paducah, and fiscal officers of cities of the first and second that the bond was approved. He did not classes for re-election would fail of applica- | allege facts showing his eligibility to the oftion in any state of case. Such a construc- fice. A statute requires that one to be elition cannot be favored. The Constitution was intended to be applied to actual conditions. If the words "elected under this Constitution" be left out of view for the moment, it would be perfectly clear that the disqualification applied to all fiscal officers of the first and second class cities, whether such officers were created by the Constitution or by statute. Looking to the purpose of the convention in adopting that provision, we know it was to prevent those public servants who were custodians of the public money from continuing so long in office as to make it possible for them to steal large sums. It was to provide a check by fixing short terms and rotation in incumbents; it being known that such course did operate to minimize of ficial embezzlements. There appears no rea

gible to the office of city treasurer of a city of the second class must be at least 25 years of age. and a resident of the city for three years next preceding the election. Section 3131, Ky. St. One who sues to recover a public office must show title in himself, he having the burden of proving every fact essential to show that he has the title. Tillman v. Otter, 93 Ky. 604, 20 S. W. 1036, 29 L. R. A. 110; Elliott v. Burke, 113 Ky. 483, 68 S. W. 445; Toney v. Harris, 85 Ky. 464, 3 S. W. 614. He must recover upon the strength of his own title, not upon the weakness of his adversary's. Nor does the possession of a certificate of election raise any presumption of the eligibility of the person to whom issued. Hoglan v. Carpenter, 4 Bush, 91. The canvassing board merely

election. They neither can nor assume to| pass upon the question of the eligibility of the person voted for. The officer whose duty it is to administer the oath of office and to accept the official bond has not the jurisdiction to inquire into the eligibility of the person presenting himself for qualification. He must accept the bond if good, and administer the oath if the person offering will take it, if the certificate of the canvassing board shows he has received the requisite number of votes at an election legally held to fill that office, and if the person so elected tenders himself with the bond within the time prescribed by law. Patterson v. Miller, 2 Metc. 497; Wilson v. Tye, 122 Ky. 508, 92 S. W. 295; Id., 102 S. W. 856, 31 Ky. Law Rep. 491.

Appellee qualified by executing the bond required of the city treasurer, before the city clerk. The city clerk is a ministerial officer with the limited powers and duties conferred by statute. Sections 3133-3136, Ky. St. We do not find it in any statute when it is made his duty to approve the bond of the city treasurer. In section 3136, Ky. St., dealing with the duties of the clerk, this is stated: "He shall register and preserve in his office all contracts, bonds, oaths or af firmations taken or given by city officers or employés, and may administer such oaths and affirmations." The bond required of the city treasurer must be in the penal sum and with surety worth $20,000. The approval of such a bond is not a perfunctory matter, nor a clerical duty. It is executive, and of Appellee's petition did not allege that he great importance, as great as it is to have was eligible to the office, nor did it allege it executed at all. Among the duties of the facts showing that he was eligible. Eligibility mayor we find this: section 3112, Ky. St.: is a condition precedent to the right of any "He shall see that every officer who is reone to a public office. Before he can recover quired to give bond has duly given said bond it from even a usurper, he must show that he and qualified before he enters upon the duhimself is rightfully entitled to it. To show ties of his office. If the mayor permit any that fact, two things must concur: One, that officer to be without bond, he shall be rehe is eligible; second, that he has been elect- sponsible for the defaults of the officer as ed. One is as essential as the other. If he long as the same shall continue." The mayor is not eligible, he is not entitled to the office, is the chief executive officer of the city. It even though elected; or, if eligible, he is is argued from that fact and the duty denot entitled unless elected. Lacking either, veloped specifically by section 3112, supra, he would himself be a usurper if he were that it falls within the scope of his office inducted into the office. The law will not to approve such bonds, where there is not lend its aid to one usurper to oust another an express direction that some other officer Appellee suggests in argument that the bur- or body shall approve them. Section 3132, den is on the defendant to show the ineligi- Ky. St., provides that "the treasurer shall bility of the plaintiff; that one who is a give such bond and receive such salary as the lunatic or an alien, or who has been convict- council shall by ordinance provide." The ed of a felony, or disfranchised by the judg- ordinance of Paducah merely provides that ment of a court, cannot hold a public office; the treasurer shall execute bond in the sum and that all these are matters of defense. of $20,000. As it does not provide what ofThe law presumes all persons sane. Hence ficer shall approve it, the council has reservthe one who claims the contrary has the bur-ed to itself the power of such approval. den of showing it. If one shows he is a citizen of a town, of 25 years of age, he necessarily shows he is not an alien. The disqualification of conviction for felony, or disfran.chisement; or having done any act vacating the office, such as engaging in a duel, are matters of defense. Morgan v. Vance, 4 Bush, 323; Commonwealth v. Jones, 10 Bush, 725. They are in the nature of exceptions, which need not be anticipated in the petition of the plaintiff, but must be set up by the defense as reasons why the plaintiff should not recover in spite of his prima facie right. order for the plaintiff to recover the office from the defendant, it was necessary for HENSLEY v. BURT & BRABB LUMBER the plaintiff to allege, and, if issue made, to prove, his eligibility under the statute, as well as his election. / He failed to either allege or prove his eligibility, and, as there is no presumption of the fact of eligibility in a direct proceeding by one to recover an office, the plaintiff must have failed at that point in his case. /

In

As the record now stands, the bond was not properly approved. But, if the bond be good, it may yet be approved. Appellee had not the right to the office until he had executed bond, approved by the council, and has not the right to it then, unless he shows he was eligible to be elected to it in November. 1908.

For the reasons indicated, the judgment must be reversed, and the cause is remanded for proceedings not inconsistent herewith.

CO.

(Court of Appeals of Kentucky. Feb. 17, 1909.) 1. BOUNDARIES (§ 3*) CONFLICTING ELE

MENTS CONTROL OF MONUMENTS.

It is the entry and survey of land which appropriates it, the patent merely confirming the survey, and where the patent calls for incorrect courses and distances to an existing monument, or does not correspond with the ac

tual survey, the location of the monument, or | now in Leslie county, on Lick branch, waters the survey, operates to correct the patent. of Greasy creek, a fork of the Middle fork of [Ed. Note. For other cases, see Boundaries, Kentucky river. The patent was based upon Cent. Dig. §§ 6-13; Dec. Dig. § 3.*] a survey made on August 8, 1873, when the

MENTS.

2. PUBLIC LANDS (§ 151*) — PATENTS CONSTRUCTION REFERENCE TO OTHER INSTRU-land was a part of the territory of Harlan county. The calls of the patent were as follows: "Beginning at a spruce pine standing on the west bank of said branch; then north 46° west, 20 poles, to a white oak and two beeches; thence west, 50 poles, to a stake; thence north 40° west, 200 poles, to a stake; thence south 65° east, 215 poles, to a stake; thence south, 100 poles, to a stake; thence south 75° west, 100 poles, to the beginning."

Where the calls of a patent are incorrect, any document referred to therein may be look ed to to correct the patent, and, where a patent referred to the certificate of survey, such certificate could be examined to correct the calls of the patent, if the intention of the parties can be gathered with reasonable certainty from the patent and the instrument referred to therein.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 419-425, 431; Dec. Dig. § 151.*1 3. PUBLIC LANDS (8 151*) — PATENTS - CONSTRUCTION-INTENTION.

In construing a patent the intention of the grantor must be sought and effectuated, if pos

sible.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 431; Dec. Dig. § 151.*] 4. DEEDS (8 99*) - CONSTRUCTION-CONSTRUING INSTRUMENTS TOGETHER-PATENT AND SURVEY CERTIFICATE.

Where a patent, the calls of which were incorrect, referred to the surveyor's certificate and plat showing the correct courses and distances, which included a larger quantity of land, and the patentee conveyed the land by the calls in the patent, and the patent was referred to in the deed, the certificate of survey and plat became a part of the description in the deed and could be referred to to correct the erroneous calls therein.

Patents for vacant land are issued alone upon surveys thereof, made by the county surveyor of the county where the land lies, and upon warrants issued by the county court of that county. The county surveyor is required to actually survey the land, and to make and file with the register of the land office (now the Auditor of State) a certificate of the survey as made by him, and a plot showing the boundary of the land.

The certificate and plat of the county surveyor of Harlan county were filed in the land office, upon which this patent was issued. The certificate of the survey contained the identical description given in the patent, except that in the third line, where the patent calls for "north 40° west, 200 poles," the certificate calls for "north 10° west, 200 poles." 5. BOUNDARIES (§ 6*)-COURSES AND DISTAN-When the patent is run out by its calls it lies in this shape:

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 261; Dec. Dig. § 99.*]

CES-REVERSING COURSES.

Where one of the calls of a deed containing six calls was erroneous, but the first two calls were to existing monuments which were correctly located, the error could be corrected and the boundary established by running the first two calls, and then reversing the calls from the first known corner and running the other lines until the third from the beginning on reversal was reached, and then running a line, disregarding the course called for by the deed, to the established third corner.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. § 52; Dec. Dig. § 6.*]

6. DEEDS (§ 115*)-VALIDITY-MISTAKE AS TO QUANTITY-EFFECT.

Where the intention of the parties was to convey all of the land covered by a patent to the vendor, any mistake in the patent as to the land conveyed would not affect a conveyance of the patentee's title, especially after the land had passed to innocent purchasers, though the grantor might have a claim for the price of the additional land.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 325; Dec. Dig. § 115*]

Appeal from Circuit Court, Madison County. "To be officially reported."

Action between Henry M. Hensley and the Burt & Brabb Lumber Company. From a judgment for the latter, the former appeals. Affirmed.

Cleon K. Calvert, for appellant. Jas. H. the beginning corner, while the next to the Jeffries, for appellee.

O'REAR, J. April 3, 1876, there issued to Louis Harris a patent for 200 acres of land

last line passes through the beginning corner and some rods beyond it. The patent lines cannot be made to close if run by its calls. The calls of the surveyor's certificate do close.