#### Saylor v. Rockcastle County Board of Education et al.

March 28, 1941.

B. J. Bethuz’um and Edwin R. Denney for appellant.

Fi’itz Krueger for appellees.

Opinion of the Court by

Judge Tilford

Tilford Affirming.

Alleging tbat be bad been wrongfully removed as a member of tbe Rockcastle Board of Education, appellant instituted this suit in equity to bave the action of tbe Board adjudged illegal, tbe Board’s appointee to fill tbe vacancy declared a usurper, and for an injunction enjoining tbe Board from recognizing its appointee as a member and tbe latter from molesting appellant in tbe performance of bis duties as a Board member. Tbe ground on which appellant was removed as a member was bis failure to attend three consecutive meetings without having been excused by tbe Board “for reason satisfactory to it.” Kentucky Statutes, Section 4399-29. "While tbe testimony clearly establishes that appellant was suffering from serious heart trouble and bad been *64directed by his physician to refrain from, all activities, and that the Board members knew of his illness, it is conclusively established that appellant stated to the Board that he could have attended all except one of the three meetings from which he was absent, but thought it unnecessary because during a previous term of service on the Board, some of the members attended only a few times each year and nothing was ever done about it. It is true that he had sent his wife to attend the three meetings from which he was absent and that the Board had paid him his attendance fee, but it is also undisputed that at the first of the three meetings he had tendered his resignation because of ill health on condition that his son be appointed to fill his place. The Board deferred action on the resignation, and it is claimed by appellant that under the circumstances enumerated, the Board recognized his continued membership, notwithstanding his absence. While seemingly harsh, we are not prepared to say that the action of the Board was arbitrary. Meade County Board of Education v. Powell, 254 Ky. 352, 71 S. W. (2d) 638.

However, it is not necessary for us to decide this question in view of the failure of the appellant to comply with the long-established rule in this State, namely, that an individual seeking to recover an office must allege and prove his eligibility. Wilson v. Tye, 126 Ky. 34, 102 S. W. 856, 31 Ky. Law Rep. 491; Dorain v. Walters, 132 Ky. 54, 116 S. W. 313; Hermann v. Lampe, 175 Ky. 109, 194 S. W. 122; Barton et al. v. Brafford, 264 Ky. 480, 95 S. W. (2d) 6; McClendon et al. v. Hamilton, 277 Ky. 734, 127 S. W. (2d) 605; Callis v. Brown, 283 Ky. 759, 761, 142 S. W. (2d) 675. Conceding the existence of the rule, appellant’s counsel argues that it is inapplicable to an action in equity such as the present one. Since title to an office cannot be tried in equity, aided by an injunction (Jenkins v. Congleton, 242 Ky. 46, 45 S. W. (2d) 456), the effect of this argument, if carried to its logical conclusion, would necessarily be a denial of relief on the ground that appellant had pursued an improper remedy.

It is true that appellant alleged that the action of the Board in removing him was arbitrary, and hence, illegal, but he also alleged that the Board, had removed him as a member after due notice and trial and had entered an order in its minute book appointing the appel*65lee, Hunt, defendant below, a member of tbe Board to fill the vacancy, and that Hunt “has now usurped and unlawfully bolds and exercises said office and as sucb pretended member of tbe Board is and will perform tbe duties ‘pertaining’ to said office and receive tbe office and emoluments thereof to tbe exclusion and against the rights” of appellant. Moreover, tbe prayer of tbe petition was that Hunt “be declared a usurper in office and enjoined from molesting this plaintiff in tbe performance of this office as a Board member,” and that appellant’s removal as a member of tbe Board be adjudged to have been illegal and tbe appointment of Hunt illegal, and that tbe Board be enjoined from recognizing Hunt as a member. It is true that appellant did not in specific language pray to be adjudged a member of tbe Board in lieu of Hunt, but from whatever aspect viewed, it is apparent that tbe object of tbe action was to try title to tbe office and recover possession thereof, and that appellant could not, by adopting a form of action in which tbe relief sought was not obtainable, escape tbe necessity of alleging facts essential to tbe obtention of sucb relief in a proper action. Tbe eligibility requirements of a member of a County Board of Education are specific and numerous (Kentucky Statutes, Section *4399-22);*and appellant wholly failed to allege bis possession of any of tbe required qualifications. True, be bad been duly elected to tbe office, but this essential requisite could avail him nothing unless be was eligible. Dorain v. Walters, supra. Tbe Board bad tbe power to remove him, and bad removed him. Kentucky Statutes, Section 4399-29. Tbe Board bad tbe power to fill tbe vacancy caused by his removal, and bad filled it by tbe appointment of Hunt. Kentucky Statutes, Section 4399-30. Tbe sole charge of illegality in tbe Board’s proceeding was that it bad acted arbitrarily in refusing to accept bis excuse for bis non-attendance. Were this true, it would not follow that appellant was entitled to maintain an action to have it so adjudged in tbe absence of a showing that be possessed tbe necessary qualifications to bold tbe office. The inevitable effect of a judgment in appellant’s favor would have been to oust Hunt and reinstate appellant, and tbe applicable rule is similar to that prevailing in actions in ejectment where tbe plaintiff must recover, if at all, on tbe strength of bis own title and not upon tbe weakness of tbe title of tbe defendant in possession.

*66It is unnecessary to set forth the reasons for the prevailing rule as they are fully discussed in the authorities cited. Appellant insists, however, that in the case of Baisden v. Floyd County Board of Education, 270 Ky. 839, 110 S. W. (2d) 671, by directing the overruling’ of a demurrer to a petition in equity seeking relief similar to that sought in the case at bar, we approved the practice of resorting to a court of equity to obtain such relief. The sole question discussed in the Baisden case was the arbitrariness of the action of the Board in removing him, and no other question was passed upon. Moreover, it appears from the opinion that Baisden alleged his qualifications for, as well as his election to, the office of Board member, and hence, the decision in the Baisden case furnishes no authority in support of appellant’s contention that it was unnecessary for him to allege his qualifications in the present case. Neither does it support appellant’s claim that the action of the Board in removing him was arbitrary, since the decision was predicated upon an entirely different state of facts.

Judgment affirmed.