McCloud v. City of Cadiz

548 S.W.2d 158, 1977 Ky. App. LEXIS 646
CourtCourt of Appeals of Kentucky
DecidedMarch 4, 1977
StatusPublished
Cited by7 cases

This text of 548 S.W.2d 158 (McCloud v. City of Cadiz) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCloud v. City of Cadiz, 548 S.W.2d 158, 1977 Ky. App. LEXIS 646 (Ky. Ct. App. 1977).

Opinion

HAYES, Judge.

This suit involves alleged irregularities under KRS 61.280 and KRS 424.260. Appellants filed a class action suit to contest certain actions taken by the mayor and council of Cadiz, which they contend violate these statutes. The following fact situations form the basis of the contest:

(1) The Mayor of Cadiz, W. J. Hopson, is a stockholder and employee of an insurance company which had handled all of the city’s insurance business. This business was awarded without advertising for bids.

(2) The City of Cadiz did business, in the form of service and parts with an automobile dealership whose owner was a city councilman, Wilbur Boggess. The city also sought to purchase a vehicle from this officer; however, this deal was rescinded.

(3) The city purchased service and supplies from another councilman, W. D. Burke.

(4) The city deposited all of its money in a bank, Trigg County Farmers Bank, in which city officials served as directors. This business was awarded without advertising for bids.

(5) The city leases a lot from an attorney, Mary G. White, who does certain legal work for the city.

With the exceptions of the bank deposits and parking lot lease, all of these activities have ceased. Appellants sought to enjoin all present and future contracts which violate KRS 61.280, to force the city to comply with KRS 424.260 in its banking and insurance, to recover all monies paid out as a result of these violations and to oust these officials who had participated.

As a result of certain family relationships with several of the defendants, the Trigg County Circuit Judge disqualified himself from the case. C. R. Walden was appointed Special Judge and proof was taken by depositions. After briefs had been submitted, Judge Walden made the following determinations:

(1) Appellants had the right to prosecute this suit as a class action.

(2) The parking lot lease did not violate KRS 61.280 since the attorney was not a city officer.

(3) Appellants were not entitled to an injunction because it was shown that the violations had ceased and there was no evidence that they would continue.

(4) The bank deposits did not violate 61.280.

(5) Insurance and banking does not require advertising for bids pursuant to KRS 424.260.

(6) Appellants had abandoned claim for damages.

It is from these conclusions that appellant prosecutes this appeal. This court, however, can find no error in the conclusions reached by the trial judge.

Basically there are three issues presented by the facts:

I. To what relief, if any, are appellants entitled as a result of past violations of KRS 61.280 — injunction, damages or removal from office?

II. Do deposits in a bank where city officers are directors constitute a violation of KRS 61.280?

III. Is advertising for bids required by KRS 424.260 before money can be deposited by the city or insurance purchased by the city.

KRS 661.280 is designed to prevent self-dealing by city officers. The conduct which it proscribes and the penalties it provides are set out as follows:

No officer of a city of the fifth or sixth class shall be interested, directly or indirectly, in any contract with the city of which he is an officer, or in doing any work or furnishing any supplies for the [161]*161use of the city or its officers in their official capacity. Any claim for compensation for work done, or supplies or materials furnished, in which any such officer is interested, shall be void, and, if audited and allowed, shall not be paid by the treasurer. Any wilful violation of the provisions of this section shall be grounds for a removal from office, and shall be a misdemeanor, and punished as such.

The only violations of this statute which this court can determine from the facts presented are the parts and services purchased from the councilmen and the insurance obtained from the company where the mayor is employed. The parking lot lease does not constitute a violation of KRS 61.280. Under KRS 87.160 and KRS 87.170, Mary White cannot be a city officer since she is not a resident of Cadiz. As to the banking activities, these do not violate KRS 61.280 for the reasons which will be discussed later in this opinion.

Appellants, however, must prove more than the existence of violations of KRS 61.280 before this court can award them relief. They must establish, additionally, that they are entitled to relief and what that relief should be. This burden has not been met by appellants in any of the three forms of relief they have sought — injunction, damages and ouster.

An injunction is inappropriate in this case since the established violations of KRS 61.280 consist of activities which have ceased. In order to establish their right to an injunction, there must be a clear showing of right to the relief and a showing of urgent necessity, Kentucky Utilities v. Carlisle, 279 Ky. 585, 131 S.W.2d 499. In the absence of an ongoing violation of this statute appellants cannot establish either of these two requirements. Furthermore, this court is not empowered to enjoin possible future violations, Waddle, et al. v. City of Somerset, 281 Ky. 30, 134 S.W.2d 956. In denying a request for an injunction of future unlawful expenditures of money by the City of Somerset, the Court of Appeals made the following statement in Waddle:

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Cite This Page — Counsel Stack

Bluebook (online)
548 S.W.2d 158, 1977 Ky. App. LEXIS 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccloud-v-city-of-cadiz-kyctapp-1977.