Request By:
Mr. Larry D. Owens
419 North Main Street
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of recent date in which it appears from the related facts that the duly elected constable of Magisterial District 1 did not reside within the district for one (1) year next preceding his election as required by Constitution § 100. The question is raised as to whether or not the candidate receiving the second highest number of votes who was the runner-up to the duly elected constable would be entitled to the office if the constable in question is disqualified, thereby creating a vacancy.
The answer to your question would be in the negative. Even if a vacancy is created in the office of constable, the law is quite clear that the person who receives the second highest vote cannot assume the office even though the election is declared void or where, in fact, the officer is removed as a usurper for lack of sufficient qualifications. See
Bogie v. Hill, 286 Ky. 732, 151 S.W.2d 765 (1941). See also
Morgan v. Adams, 250 Ky. 441, 63 S.W.2d 479 (1933), from which we quote as follows:
"It is a well-settled rule that one receiving less than a plurality of legal votes cannot be declared elected, and the only exception to this rule is where a successful candidate has violated the Corrupt Practice Act (Ky. Stats. sec. 1565b-1 et seq.) in a primary election. This exception cannot be applied in a general election. The candidate for an office who has not received a plurality of the legal votes cast is not entitled to the office, although the candidate who received a plurality of the legal votes is, for any reason, ineligible."