Trustees of Owensboro vs. Webb.

marshal, and to be allowed to execute the duties of that office, and that Brittain be enjoined from the further execution of the duties of the office, and from receiving the fees and emoluments thereof.

The trustees answered, admitting the material facts charged, but they insist that the election of Webb was without legal authority, and is therefore void; that Brittain was duly elected marshal of Owensboro in April, 1857, and that, by operation of law, he holds the office until his successor shall have been duly elected and qualified. They deny that the act under which Brittain was elected is unconstitutional.

The circuit court having awarded the writ of mandamus according to the prayer of the petition, the trustees and Brittain have prosecuted this appeal.

It is apparent from the facts stated that this controversy must turn exclusively upon the constitutional validity of the act of 1854, supra, under the provisions of which Brittain was elected to the office in contest.

The clause of the constitution with which the act referred to is supposed to be in conflict is as follows:

"The city court of Louisville, the Lexington city court, and all other police courts established in any city or town, shall remain until otherwise directed by law, with their present powers and jurisdictions; and the judges, clerks, and marshals of such courts shall have the same qualifications, and shall be elected by the qualified voters of such cities or towns, at the same time, and in the same manner, and hold their offices for the same term, as county judges, clerks, and sheriffs, respectively, and shall be liable to removal in the same manner. The general assembly may vest judicial powers, for police purposes, in mayors of cities, police judges, and trustees of towns." (Sec. 41, art. 4.)

It is manifest that this provision was intended to relate exclusively to such police courts as had been established in any city or town, prior to the adoption of the present constitution. And it is no less clear, we think, that it was intended to, and does fix, definitely and certainly, the time and manner of electing the judges, clerks, and marshals of such courts, beyond the

Trustees of Owensboro vs. Webb.

power and control of the legislative authority. The words "shall remain until otherwise directed by law," evidently mean nothing more than that the several tribunals enumerated, with the legal organizations, functions, powers, and jurisdictions which they then had, should remain until otherwise directed by law. There is nothing in the language itself, or in the grammatical structure of the sentence in which it is found, to authorize the assumption that the time and manner of electing the several officers of such courts, were intended to be subjected to the future direction of the legislature.

It cannot be doubted that the local tribunal created and established by the 12th section of the act of 1850, supra, which authorizes the governor to appoint "a judicial officer, to be styled the police judge of Owensboro," with the powers and jurisdiction conferred by that section, is a "police court," within the meaning of the clause of the constitution which has been quoted. Nor can it be doubted that the marshal, whose duties and powers are defined by the 11th section of the act, is a "marshal of such court," and must, therefore, be regarded as embraced by the same constitutional provision, the act in question having been passed prior to the adoption of the present constitution. This point cannot be made clearer by argu

ment.

From what has been said, it results that the legislature had no power to change or alter, in any respect, either the time or manner of electing this officer, both the time and the manner having been definitely prescribed by the constitution itself.

But it is insisted that the validity of the act of 1854 is maintainable under the 6th section of article VI of the constitution, which provides that "officers for towns and cities shall be elected for such terms, and in such manner, and with such qualifications as may be prescribed by law."

Although the terms of this provision might be regarded as comprehensive enough to embrace all officers for towns and cities, yet it is obvious that those officers whose qualifications, terms of office, and the time and manner of whose election had been prescribed by section 41, must be excepted out of the operation of the sixth section. And moreover, it is clear that

Trustees of Owensboro vs. Webb.

the latter section was also intended to refer to all officers of towns and cities whose offices might be created or established by law, after the adoption of the constitution.

This construction harmonizes the two sections, which otherwise would directly conflict with each other.

But it is manifest that the appellee, although legally elected to the office in question, was not entitled to the relief which was awarded him by the judgment complained of.

As already stated, he was elected in August, 1858; and by the clause of the constitution before quoted, the officers therein enumerated are required to have the same qualifications, " and shall be elected by the qualified voters of such cities or towns, at the same time, and in the same manner, and hold their offices for the same term, as county judges, clerks, and sheriffs, respectively."

Section 4, of article VI, of the constitution, provides that the sheriff's term of office shall be two years; that elections for sheriff shall be held on the first Monday in August, 1852, and on the first Monday of August in every second year thereafter; and that "the sheriffs first elected shall enter upon the duties of their respective offices on the first Monday in June, 1851; and after the first election, on the first Monday in January next succeeding their election."

These constitutional provisions are so explicit and plain as to remove all doubt with respect to the terms for which sheriffs and marshals are to be elected, and with respect to the time at which those terms begin and end, by fixing the day on which such officers are to enter upon the duties of their respective offices. As was said in the case of Hall vs. Hostetter, (17 B. Mon., 786,) "it was evidently contemplated by the constitution that sheriffs and marshals shall be eligible under the same circumstances, and hold their offices for the same term;" and that in these respects they are placed on a footing of perfect equality.

The construction contended for on the part of the appellee, and which would allow him to enter upon the duties of the office of marshal in the month of September next succeeding his election, is clearly unwarranted; and the judgment which

Vance et ux. vs. Vance.

required the appellants to permit him to qualify and to enter upon the duties of the office before the first Monday in January next succeeding his election, was erroneous.

And inasmuch as the appellants were in no default, and the appellee was entitled to no relief at the time his petition was filed, or at the time the judgment was rendered, the petition should have been dismissed.

The judgment is therefore reversed, and the cause remanded, with directions to dismiss the petition.

CASE 57-PETITION ORDINARY-FEBRUARY 22.

Vance et ux. vs. Vance.

APPEAL FROM MERCER CIRCUIT COURT.

1. Plaintiffs alleged in their petition that they were in possession of the slave in contest, of which they were the owners, and that she had been unlawfully taken from their possession by the defendant. The latter admitted in his answer that the plaintiffs had the possession of the slave, and that he had taken her from their possession; but denied that they were the owners of her, and alleged that she belonged to his wife. Held-That the burden of proof was upon the defendant, and he had a right to the conclusion of the argument to the jury.

2. Evidence of the good character of a witness is not admissible where he is only impeached by proof of his having made a different statement on another occasion, or by proof of facts which contradict those stated by him in his testimony. (Civil Code, secs. 661, 663.)

JAMES D. HARDIN, for appellants, cited 2 Bibb, 428; Hardin, 184; 12 B. Mon., 329, 330.

JAMES B. BECK, on same side, cited Hardin, 184; 3 Bibb, 346; 6 J. J. Mar., 49; 3 Dana, 304; 8 B. Mon., 192; Civil Code, sec. 347, sub-div. 6; Ib., secs. 587, 369, sub-div. 6; 2 Bibb, 427; 4 J. J. Mar., 275; 5 Dana, 494; 1 Greenleaf, secs. 74, 75, 76; 1 Bibb, 129; lb., 570; 3 lb., 35; lb., 224; 4 Litt., 259; 4 Mon., 482; 7 lb., 223; 3 J. J. Mar., 421; lb., 442; 1 Mar., 548; 1 J. J. Mar., 97; Ryman, &c., vs. Livingston, &c., Winter Term, 1859; 1 B. Mon., 224; 7 Dana, 90; 8 Dana, 319; 4 John., 230; 5 lb., 144. BELL & POSTON on same side.

Vance et ux. vs. Vance.

JAMES HARLAN, for appellee, cited Civil Code, sec. 347, sub-divs. 3,6; 3 Bibb, 346; 1 Dana, 325; 1 B. Mon., 241; Beckly vs. Brown, MS. opin. Winter Term, 1855; 16 Peters, 539; Civil Code, secs. 587, 663, 855; 1 Greenleaf, sec. 469; 1 J. J. Marsh., 449; 3 Bibb, 313; 3 Mar., 397; 1 J. J. Mar., 6; 2 lb., 310; 2 Bibb, 64, 211; 1 Ib., 241; 3 Litt., 14, 169, 189; 1 Mon., 111, 272; 8 Dana, 321; 1 Bibb, 303; 9 Litt., 169; 2 Mar., 520, 546; 3 J. J. Mar., 61; 4 lb., 399; 6 Mon., 61; 3 J. J. Mar., 717; 6 Dana, 214; 1 B. Mon., 46; 12 lb., 54.

WM. A. HOOE, on same side, cited Hardin, 183; 2 Bibb, 428; 4 J. J. Marsh., 275; 3 Bibb, 346; 1 Dana, 325; 1 B. Mon., 241; Civil Code, sec. 347, sub-divs. 3 and 6; lb., 653; 1 J. J. Marsh., 449; 3 Marsh., 397; 3 Bibb, 318; 3 J. J. Marsh., 61; 1 B. Mon., 46; 3 J. J. Marsh., 717; 12 B. Mon., 54.

CHIEF JUSTICE SIMPSON DELIVERED THE OPINION OF THE COURT:

The first question that arises on this record is that which relates to the right to conclude the argument of the case to the jury. On this point the Code of Practice is explicit. The party having the burden of proof has a right to conclude the argument. (Sec. 347.) The burden of proof is generally on the party against whom a judgment would be rendered on the pleadings, if no proof were introduced.

In this case the plaintiffs alleged in their petition that they were in the possession of the slave in contest, of which they were the owners, and that she had been unlawfully taken from their possession by the defendant. The latter admitted in his answer that the plaintiffs had the possession of the slave, and that he had taken her from their possession; but denied that they were the owners of her, and alleged that she belonged to his wife. Now, it is evident that on this state of pleading, if no evidence had been adduced by either party, the plaintiffs would have been entitled to a judgment for the slave. Their possession was prima facie evidence of title; and that being admitted by the defendant, it then devolved upon him to introduce evidence to repel that presumption; and if he failed to do it, a judgment should have been rendered against him. Consequently the burden of proof was upon him, and he had a right to the conclusion of the argument to the jury.