What principle could be more fair, more just, and more importantly, what would be more consistent with the purpose of Section 183 and the common school system it spawned? We further emphasized the mandate of Section 183 in Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930). Affirming the General Assembly's constitutional duty to provide for an efficient system, the Court idealistically observed the citizens' burden.
As was said of the office involved in City of Louisville v. Thomas, supra, "The position is created, defined, and controlled by law, and does not arise out of, nor is it dependent upon, contract. It possesses every essential element of a public office within the meaning of the quoted provisions of the Constitution as defined by this court and by other courts and text-writers." The status of a County School Superintendent in Kentucky as a public officer is definitely settled by Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 29. The court there held such an appointee to be a public officer with his appointment not subject to rules applicable to contracts. In appointing a Superintendent of Schools, the "board of education was exercising public authority," and, "We do not hesitate to hold that a county superintendent of schools is an officer, and not an employee."
The appointment by Governor Baldwin exhausted the power of his office to fill the position; it was not vacant on January 1, 1947, after the appointment of the plaintiff; and there was no authority in Governor Baldwin or in anyone else to revoke the appointment of the plaintiff or to appoint another. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 157, 5 L.Ed. 135; State ex rel. Coogan v. Barbour, 53 Conn. 76, 85, 22 A. 686; State ex rel. Scofield v. Starr, 78 Conn. 636, 639, 63 A. 512; Board of Education v. McChesney, 235 Ky. 692, 697, 32 S.W.2d 26; 42 Am.Jur. 960, 107; note, 89 A.L.R. 135. The conclusion of the trial court was correct.
He has general supervision of the schools of the district and is the "executive officer of the board of trustees." He is a public officer ( State ex rel. Hill v. Sinclair, 103 Kan. 480, 175 P. 41; Board of Education v. McChesney, 235 Ky. 692, 32 S.W. 26.) He is given permanency of tenure immediately upon his appointment, under his contract which, by the statute, is automatically renewed from year to year and which may be terminated only upon certain notice. While continuity of service is provided for as a policy, not only in fairness to the appointee but for the good of the schools, it is also necessary for the good of the schools that one holding the position who proves to be unfit should not be continued in the service.
Gulick, 398 S.W.2d at 485-486. In so doing, Gulick quoted from Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W. 2d 26, 28 (1930): When a power is given and has been exercised, and the repository of the power has no further control over the subject, except to remove the appointee for cause, the appointing power is exhausted and may not be reconsidered.
Without question, it has long been held that an appointment is revocable until the last act required of the appointing authority has been accomplished. See Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803), and Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (Ky.App. 1930). We believe that in this instance, the Council made it very clear that Whatley's appointment was conditional and unofficial, indeed stating specifically at the September 2nd meeting that Whatley's appointment "did not become official until he has withdrawn from the case with Oldham County."
This result comports with established case law. In Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 28-29 (1930), the court stated: An appointment to office may be revoked, of course, at any time before the act becomes final.
Prospective appointments to office are generally deemed to be valid. Only one exception exists to that rule. If the term of the appointing body or officer will expire prior to the time that the vacancy will occur, then no power of prospective appointment exists. Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765 (1939); Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930); Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043 (1911). Furthermore, there may be changes in the membership on the board.
The Board legally acted before the second list was submitted, therefore, we need not consider the import of its submission. In Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930), we said: "Its function is fully performed when it makes the choice. * * *. When a power is given and has been exercised, and the repository of the power has no further control over the subject, except to remove the appointee for cause, the appointing power is exhausted and may not be reconsidered. If the power belongs to a board, its act is complete when the meeting has adjourned.
But once the length of the term has been fixed, the board loses control over the term thus created. Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 28 (1930) wherein it is said: 'When a power is given and has been exercised, and the repository of the power has no further control over the subject, except to remove the appointee for cause, the appointing power is exhausted and may not be reconsidered. * * * Thus the appointment became complete, and the power of the board for the time being was exhausted.' "