Gilbert v. City of Paducah

72 S.W. 816, 115 Ky. 160, 1903 Ky. LEXIS 87

• Court: Court of Appeals of Kentucky
• Decided: March 18, 1903
• Status: Published

Opinion

Opinion op the court by

JUDGE HOBSON

Reversing.

By the act of September 30, 1892 (see Ky. St., section 2740), Paducah was assigned to cities of the third class. At the regular election in November, 1901, it elected various city officers, as provided by the laws governing third class cities. At this election appellant Gilbert was elected prosecuting attorney of the police court, and appellant Crow was elected marshal, each for a term of four years. Kentucky Státutes, sections 3369, 3338. Each of them qualified and entered upon the discharge of his duties. By section 3373, Kentucky Statutes, the prosecuting attorney of the police court receives as his compensation 30 per cent, of all fines and forfeitures recovered in the court. By section 3349, the marshal receives such compensation in the way of salary, commissions, and fees as are prescribed in the statute or by ordinance, which shall not be changed during his term of office. While they were discharging their duties, the General Assembly, by an act approved March 21, 1902, struck out Paducah from the list of cities of the third class, and added it to the list of cities of the ■second class; but the act is silent as to how the transfer is to take effect, or what shall become of the officers of the city elected and holding under the charter as a third-class city, nothing further being provided than that the city shall be transferred from the third class to the second class. Acts 1902, p. 115. By the charter of the second-class cities, the office of city attorney is created, corresponding to the office of prosecuting attorney of the police court, and he is paid such a salary .as the general council shall deem proper. Kentucky Statutes, sections 3165', 3167. 'Aftter the transfer of the city to the second class, the general council passed an ordinance fixing appellant Gilbert’s salary at $100 a month. This he declined to receive. There is no such office as marshal in second-class cities. The duties of marshal in the third-class cities are imposed upon the chief of police in second-class cities. Kentucky Statutes, section 3168. A chief of police was appointed, and appellant Crow was dropped. Kentucky Statutes, section 3138. Appellants, Gilbert and Crow, filed these suits to restrain the city from interfering with them in the discharge of their official duties, or depriving them of the compensation attached thereto, during the term for which they were elected. Their petitions were dismissed, and they have appealed.

Section 156 of the Constitution, among other things, provides: “The General Assembly shall assign the cities and towns of the Commonwealth to the classes to which they respectively belong and change assignments made as the population of said cities and towns may increase or decrease, and in the .absence of other satisfactory information as to their population, shall be governed by the last preceding federal census in so doing; but no city or town shall be transferred from one class to another, except in pursuance of a law previously ’enacted .and providing -therefor.” It is insisted that the act of March 21, 1902, is invalid, under this provision, for the reason that no law had been previously enacted providing for the transfer of cities from one class to another. The, General, Assembly in the act of June 14, 1893, made a general law providing for the transfer of cities- of the third class. Kentucky Statutes, section 3264. It is in these-words: “When the population of any city> of this class, as ascertained by the last federal ■ census, or by a census taken pursuant to an ordinance of said city, authorizing it to be placed in a class other than that in which it is, the council of such city may enact an ordinance, setting 'forth the population of the city, and how ascertained, the class it is then in, and the class which it is entitled to be in, and may file a: petition in the circuit clerk’s office of the county, declaring the facts with reference to its population and the class it desires to become a member of and such othér facts1 as may be thought proper, and shall file with such petition a copy of the ordinance, and shall cause notice of the filing.of such petition,1 and the object thereof, to be published in at least six issues of a daily or two issues of a weekly paper, of general circulation, published in the city, or in the county, if none be published in the city; or jf no paper be published in the city or county, by.notices posted up for at least ten days, at four public places in said city. On the second day of the next regular term of the court, the court shall, if the proper notice has been given, or publication made, and no defense is interposed, enter a judgment assigning such city to the class to which it belongs1, as appears from the petition and exhibits, and thereafter such city shall be governed by and under the general laws relating to the class to which it has been assigned, but the transfer from one class to another shall not in any wise impair or affect any ordinance or by-law theretofore enacted by such city, unless the same is1 in conflict with the general laws relating to cities of the class to which it has been assigned, and to such extent only shall any ordinance or by-law be repealed by the transfer, nor-shall the powers, rights, duties' or obligations of the city be in any wise affected by the transfer or any officer or employe thereof, or any debtor or creditor of the city. Defense may be made to the petition by any inhabitant of the city; and if defense is made the court shall hear and determine the same, and render a judgment transferring or refusing to transfer the city to another class, as may seem proper. The pleadings iand practice shall be the same as in equity cases, except as herein provided; but if the court shall be satisfied that the population of the city entitles it to be transferred to another cldss, it shall so adjudge- if the proper notice or publication has been made; and no appeal shall lie from the judgment.”

Similar provisions were attempted to be made as to other cities and towns by sections 3661, 366,2; but so much of these -sections as authorizes the court to assign or transfer a town or city from one class to another was held unconstitutional in Jernigan v. City of Madisonville, 102 Ky., 313, 19 R., 1412, 43 S. W., 448. Yet in that case the court said: “So much of said sections, however, as provide means for taking the census or determining the population of any such city or town are constitutional and valid, and when the population of a town is ascertained, pursuant to the provisions of said sections, the Legislature will be authorized to make the proper transfer of such town or.city.” The. same rule must necessarily be applied to section 3264. A census was taken by the city of Paducali, showing that it had the required population, and an ordinance of the city was .then passed, setting forth the population of the city, and how ascertained, the class it was in, and the class in which it was entitled to be; and, these facts being laid before the Legislature, the act in question was passed. We . are of opinion therefore, that under the rule heretofore laid down by this court, from which we are unwilling to depart, the act of March 21, 1902, was not invalid, because no previous law had been passed providing for such transfer. For if we reject all that part of the section relating to the judicial proceedings for the transfer, as unconstitutional, we have left not only that relating to the census, but the following: “And thereafter such city shall be governed by and under the general laws relating to the class to which it has been assigned, but the transfer from one class to another shall not in any wise impair or affect any ordinance or by-law theretofore enacted by such city, unless the same is in conflict with the general laws relating to cities of the class to which it has been assigued and to such extent only shall any ordinance or by-law be repealed by the transfer, nor shall the powers, rights, duties, or obligations of the city be in any wise affected by the transfer of any officer or employe thereof or any debtor or creditor of the city.” Under the principles laid down in the case referred to, this part of the section must be held in force, mo less than that part of it relating to the taking of the census. ' It is, no doubt, true that if a city is transferred from one class to another, without any provision saving the rights of the officers, they would have only such rights as are conferred by the law governing the city in the class to which it is assigned, as they take their offices subject to the right of the Legislature to transfer the city from one class to another as provided in the Constitution. If the Legislature abolishes a municipal corporation, the rights of its officers cease with its existence, for they take their offices subject to the power vested in the Legislature to abolish them, when such power exists. Although it is provided ■in section 161 of the Constitution that the compensation of no municipal officer shall be changed after his election or during his term of office, this section must be read in connection with section 156, and does not impair the power of the Legislature to abolish the municipality or abolish' the office by assigning the city to a different class, which is, in effect, to create a new municipal entity. A city of the second class is governed by different officers and with different powers from a city of the third class. Appellants, therefore, by the transfer of the city from one class to' the other were legislated out of office, except so far as their rights were saved by the provision quoted from section 3264, Kentucky Statutes. But that section must be read in connection with the other provisions of the act for the government of cities of the second class. By the first section of that act (Ky. Stat., section 3038) the cities of Covington, Newport and Lexington are declared to be cities of the second class, “and the inhabitants thereof and of such other cities as may hereafter be declared cities of the second class respectively are created and continued bodies corporate and politic within their respective limits.” By section 3172 it is provided as follows: “All offices created by laws in force prior to this act taking effect, not herein expressly provided for, shall be,, and they are hereby abolished upon the expiration of the terms for which present incumbents may have been respectively elected; but the general council shall have the power, by ordinance, to recreate such of said offices, and to prescribe the terms and duties thereof, as may be needed to effect the corporate purposes. At the regular election in one thousand eight hundred and ninety-five, and every four years thereafter, there shall be elected by the qualified voters of the city a mayor, city clerk, city treasurer, city attorney, city solicitor, if there be such officer, and civil engineer and assessor and city jailer, who shall'hold office tor a period of four years, and until their successors are elected and qualified; also members of the board of aldermen and members of the board of councilman, who shall hold office as hereinafter provided, and until their successors are elected and qualified. At the general election in one thousand eight' hundred and ninety-seven, and every four years thereafter, there shall be elected a judge of the police court. All officers elected under this act shall assume the duties of their several offices on the first Monday in January succeeding their election.” In the cities of the second class, officers were elected in November, 1893, for four years. Subsequently the act for the government of cities of the second class was passed, on March 19, 1894; and it was held that the. officers elected in 1893 for four years must give way to those elected under the act at'the November election, 1895. In other words, the holding over of the old officers was confined to such a period as was necessary to set in motion the machinery' of the municipal government under that act, and it was held that after the regular election of officers under the new act, and they entered upon the discharge of their duties pursuant thereto, the old officers must give way. This ruling was made, upon the idea that neither the Constitution nor the act contemplated that the city should be left without officers for any time, or that it should have two sets of officers at the same time. Lexington v. Wilson, 97 Ky., 707, 17 R., 435, 31 S. W., 471; Rhinock v. Evans (17 R., 439), 31 S. W., 473; Newport v. Brown (17 R., 439), 31 S. W., 473; Duncan v. Simrall (19 R., 1672), 44 S. W., 116.

We are therefore of opinion that, construing the acts together, as must be done, the same rule must be followed now in the case of a city coming into the second class as was applied to the cities originally in that class when the act took effect, and that appellants are entitled to discharge the duties of their offices until the induction into office of the city officers elected in November, 1903, and that in the meantime their powers, rights, and duties are in no wise affected by the transfer of the city from the third to the second class. They are therefore entitled to discharge their duties until then, and to receive the same compensation as before the transfer was made. In the meantime the city shall .be governed by and under the general laws relating to the class' to which it has been assigned — not to affect the powers, rights, duties or obligations of the city, or any officer or employe or debtor or creditor thereof. Second-class cities have provided for them offices unknown to cities of the third class. These may be filled. For example, a board of aldermen, police and fire commissioners are provided for for second-class cities, but not for those of the third class. The offices of marshal of third-class cities and chief of police of second-class cities include the same duties. The marshal in this case will be treated, as chief of police until the appointment of a chief of police, is made by the new regime after the election in November, 1903, unless a vacancy sooner occurs.

Judgment reversed, and cause remanded for further proceedings consistent herewith.