Meffert v. Brown

116 S.W. 779, 132 Ky. 201, 1909 Ky. LEXIS 133

• Court: Court of Appeals of Kentucky
• Decided: February 23, 1909
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Settle.

The plaintiffs, nine of whom are. assistant license inspectors, and three clerks of the board of commissioners of the sinking fund of the city of Louisville, all having been appointed to the offices or positions in question by the board of commissioners, obtained in this action, of the Jefferson circuit court, chancery branch, second division, a temporary injunction restraining the defendants, James B. Brown, David. Baird, George T. Wood, James F. Grinstead' and William Heybum, present commissioners of the sinking fund, from removing them from their several of-, fices or positions. The ease is now before me upon a motion made by the commissioners to dissolve the injunction. The commissioners are made a body corporate by section 3010, Ky. Stats. (Russell’s Stats., section 873), with certain powers and duties therein prescribed. It is alleged in the petition that two of. the five members composing the board oppose and. will vote against the removal of plaintiffs from the offices or positions held by them, respectively, two favor and will vote for their removal, and that the fifth and remaining member of the board likewise favors, and, if permitted to do so, will vote for their removal from office, but that he is not legally a member of the board of commissioners, and was not eligible to membership therein, at the time of his election.

The injunction was sought upon two grounds: First, because George T. Wood, one of the commissioners,, being, as alleged, ineligible, and not having been legally elected or qualified as commissioner, has no authority to act as a member of the board; second,, because, as further alleged, plaintiffs were elected by the commissioners for a term of one year, and can not be removed before the expiration of that year. The alleged ineligibility of Wood is based upon the grounds that he was not, at the time of' his election, a qualified voter of the city of Louisville, and that the territory including his residence had not legally been annexed to, and made a part of, the city, notwithstanding the ordinance enacted by the general council to that effect, and, as alleged, for the sole purpose of getting Wood within the corporate limits of the city that he. might be elected a commissioner of the sinking fund. We think it wholly immaterial what the motive of the general council was in annexing to the city the territory including Wood’s residence, if he was thereby rendered eligible to the office of commissioner to which he was later elected. The right to determine what territory shall or shall not be embraced in annexation ordinances is conferred by statute upon the general council of the city. It is true that persons whose homes or property lie within the territory sought to be annexed may, by proper proceedings instituted in the courts, resist such annexation upon the grounds prescribed by statute, in which case the questioh of whether they or their property shall be taken within the corporate boundary of the municipality becomes one for the adjudication of the courts. But where the necessity for the annexation has been determined by the general council of the city in conformity to the statute, and the annexation consummated without objection or resistance from the residents and property owners of the annexed territory, the validity thereof can not subsequently be collaterally attacked. Chambers v. Baldwin, 91 Ky. 122, 15 & W. 57, 12 Ky. Law Rep. 699, 11 L. R. A. 545, 34 Am. St. Rep. 165.

It is true, as claimed by plaintiffs, that Wood had not, at the time of his election as commissioner, resided in the city of Louisville three years, and that section 2746, Ky. Stats. (Russell’s Stats., section 536), applicable to cities of the first class, provides: “No person shall be eligible to any office who is not at the time of his election a qualified voter of the city and who has not resided therein three years preceding his election.” The fact, however, that Wood did reside for three years next before his election within the territory that was annexed to the city shortly before his election as commissioner was, it would seem, sufficient to meet the requirements of the statute, supra. I quite agree with the court below that the opinion in the case of Gibson v. Wood, 105 Ky. 740, 49 S. W. 768, 43 L. R. A. 699, 20 Ky. Law Rep. 1547, is conclusive of the question under consideration, as the following excerpt therefrom will show: ‘ ‘ The city of Louisville has seen fit to incorporate the town of Enterprise, and make it a part of the city of Louisville. In my opinion when the city of Louisville annexed the town of Enterprise, it .adopted the conditions then existing in the town of Enterprise, as to residence and citizenship, as a part of the city government, and former citizens of the town, of Enterprise, who thus became citizens of the city of Louisville, were entitled to all their rights, as former citizens of Enterprise, in determining their eligibility to office in the city of Louisville. When the defendant and his territory became parts of the city of Louisville, they were entitled to all the benefits that belong to all other property and citizens of the city of Louisville. To hold otherwise would be to bring persons into the city of Louisville, and to burden.them wiith city taxation and all the burdens of city government, without granting them all the privileges which it had granted to- its other residents. ’ ’

The fact that Wood did not register can not affect the question of Ms eligibility to the office of commissioner of the sinking fund. The act of registering is only one step towards voting, and it is not one of the elements that makes- the citizen- a qualified voter. If at the time of Ms election as- a commissioner of the sinking fund' Wood had been a resident of the city three -years and by registering before any election during that time would have been entitled to vote at such- election, would his failure to register have destroyed his legal status as a qualified voter? Obviously not.; the only legal effect of the failure to register would be to deprive him of a vote in the election for which the registration was required. The term, “qualified-voter” is defined by section 145 of the Constitution in declaring who shall be entitled to vote'. One may be a qualified voter without exercising the right to- vote. Registering does not confer the right; it is but a condition precedent to the exercise' of the right. When the defendant, Wood, was brought into the city of Louisville, he became as fully eligible to the office he now holds as if he had resided in Louisville three years-, and in the precinct 60 days preceding his. election, and had during the whole of that time registered previous to each city, county, or State election, as required by law.

The second contention urged by plaintiffs is not so easily disposed of. The powers of the oommisisoners of the sinking fund of the city of Louisville with res-p-ect to the offices, o-r positions under their control are. defined in subsection 2, section 3010, Ky. Stats. (Russell’s Stats., section 874), which provides: ‘ ‘ Said commissioners shall elect and appoint all officers and employes of. said sinking fund, and shall prescribe their duties and fix their compensation. And all officers and employes of said sinking fund, except the president treasurer and secretary, shall hold their offices at the pleasure of the board as prescribed by the by-laws.” Section 5 of the by-laws adopted by the board of commissioners provides: “The commissioners shall, in the month of June, of each year, elect an attorney, a chief assistant license inspector, assistant license inspectors, together with such other employes as they may deem necessary. They shall, before entering upon the duties of their respective offices, qualify and execute bond in the same manner and under the same conditions as are required of the treasurer and secretary. .Said officers and employes, after the approval of their respective bonds, and being duly qualified, shall enter upon the discharge of their duties upon the first day of the succeeding August, and continue to serve until their successors are in like manner qualified. ”

The election of plaintiffs to the offices or positions, respectively, they now hold, occurred June 8, 1908. They each, executed bond, took the necessary oath, and began the performance of their official duties August 1, 1908, and it is insisted by them that under and by virtue of the above by-laws they are entitled to' continue, each in the office held by him, for one year from June 8,1908, and until his successor in like manner qualifies. Whether they can do so or not depends -upon the construction given the ijy-law in question. It will be observed that the statute, supra, authorizes the commissioners of the sinking fund to elect the officers or employes in question for an indefinite time or fixed term, as they by their by-laws may determine. The officers thus elected ‘ ‘ shall hold their offices at the pleasure.of the board as prescribed by the by-laws.” If, therefore, the by-laws expressly fix the term, or declare when the election shall be held, and that the officers elected shall ‘ ‘ continue to serve until their successors are in like manner qualified,” and, in addition, declare when their successors shall be elected, it necessarily follows that the. former hold their offices until the time fixed by the by-laws for the election and qualification of their successors. As the by-law under which the plaintiffs were elected provides that the commissioners shall elect in the month of June of each year, and they were elected in June, 1908, it is patent that they are entitled to continue in office until June, 1909, or until their successors, then elected, shall have qualified. This construction of the by-law must necessarily prevail if any meaning or effect is given the words of the statute ‘ ‘ as prescribed by the by-laws, ’ ’ ■and that they were used with a special meaning is manifest, as they apply alone to subordinate officers, like plaintiffs, of a city of the first class; the statute •with respect to cities of the second, third, fourth, fifth, and sixth classes containing different provisions as to the election and removal of such subordinate officers. I would not be understood as holding that the commisisoners of the sinking fund of the city of Louisville may not, for cause and after a fair hearing, remove from office those whom they elect or appoint thereto, or that they can not fill vacancies, for they clearly possess such power.

This question arose in the case of Combs, Mayor, v. Bonnell, 109 S. W. 898, 33 Ky. Law Rep. 219, in which there was an attempt, on the part of the board of police and fire commissioners of Lexington, a city of the second class, without cause to remove Bonnell, a member of the fire department, and appoint another in Ms place. Section 3138, Ky. Stats. (Russell’s Stats., section 1145), provides: “The said commissioners shall have full control over the police and fire .departments of the city, together with all the property and paraphernalia thereof, or belonging thereto, and may make or ordain and put into execution such bylaws, rules and regulations for the government of said departments as may be deemed expedient, and may prescribe the qualifications of the firemen and officers and members of the police and fire departments respectively. They shall appoint a chief of police and all policemen and a chief of the fire department and all subordinates, and' shall fix the salaries of the chiefs of all departments and prescribe their duties, and they may grade the officers of said departments and prescribe their several duties, and may remove them with or without cause.” Pursuant to the powers conferred by the foregoing section the board of police and fire commissioners adopted a rule, in substance, providing that in order to suspend or remove a member of The police or fire department, written charges must be filed with the board of police and fire commissioners, and a copy thereof served upon the offending officer, notifying him of the meeting of the commisisoners to hear the charges, and' further providing that the officer should have the right to be represented by counsel and have witnesses in his behalf, and also “that the proceeding of the commission in investigating all charges against members of the departments, and in all cases of suspension and removal, shall be governed by the customary rules of evidence and the Kentucky statutes regulating the control and management of the police and fire department.” The court of appeals affirmed the judgment of the circuit court wMch, by injunction, res strained the board of police and' fire commissioners from removing Bonnell, and in doing so held that, although the regulation of internal local affairs, such as the election or employment of firemen, etc., adheres in a municipal corporation as an incident of its character as a corporation, and can not be directly regulated and controlled by the Legislature, it is competent for the State in crefiting such corporation to provide by what body of the local magistracy such function shall be exercised, and that as the board' of police and fire commissioners of the city of Lexington upon whom the Legislature had conferred the power to control the police and fire departments of the city had enacted rules relating to the removal of members of the departments, they could! not effect their removal in violation of such rules. In respect to the reasonableness of the rules adopted by the board of commissioners, and their want of power to disregard them, the court said: “This regulation was a clear and proper exercise of the powers conferred upon the police and firei commissioners, and, until repealed or changed by them in an official meeting and by proceedings of record duly adopted, it was .alike binding upon the commissioners and a protection to the members of the two' departments. It inaugurated a kind of civil service in these departments, and is a wise regulation, that should be sustained and encouraged, rather than ignored or violated. Its observance will stimulate the police and firemen to a better discharge of their duties by removing from over their head's the constant danger of capricious discharge by their1 superiors. Policemen and firemen are servants'of the city, not of the commissioners. The latter should not have it in their power to punish the police and firemen if they refused to serve the personal ends of the commdssioners, or to reward' them if they did. They ought to be discouraged from political activity, rather than rewarded for zealous, partisanship. All these desirable end's, insuring the greatest conscientious service to- the public, while detracting from the power of the political boss, are brought about by an observance of a civil service regulation. Appellant was not cited to appear for trial by the board', nor was- he accused of dereliction, or removed for eausei. The above regulation alone was a complete protection to him against such 'arbitrary discharge. The whole force of the fire department was discharged in the same order. Immediately all were reappointed, save appellee, and such others as were intended to be dropped, whose places were filled by substitutes. We think this was hut an indirect way of doing that which the commissioners could not do directly, which will not be allowed to prevail.”

The power of the Legislature, to confer upon the commissioners of the sinking fund of Louisville the right to' elect and appoint necessary officer's and employes, prescribe their duties and fix their tenure of office as they may provide by by-laws, can not be questioned; and when the commissioners have acted in pursuance of the powers thus .conferred, and by 'a bydaw fixed the time of the election of such officers in-the month of June of each year, they are, without a change in the by-law, powerless to hold the election at any other time. They may, however, by amending th!e present by-law, or adopting a new one, change the time of election as desired. It is concluded, therefore, that under the terms of the statute and by-law, the plaintiffs are entitled to hold their offices, respectively, until August 1, 1909, the date, on which their successors, to be elected in June, will qualify, unless sooner removed for canse, or the commissioners amend the by-laws and thereby change the time of holding the election. This conclusion requires that defendant’s motion to dissolve the injunction granted by the circuit court be overruled, which is accordingly done. All the members of the court were consulted before a decision of the motion was had, and all concur in the views herein expressed.

Extended Opinion, March 25,1909.

In the matter- of the defendants’ petition for an extension of the opinion herein-, it is difficult to see how there can be any misunderstanding of the meaning of the opinion as to' the power of the commissioners of the sinking fund of the city of Louisville to regulate by a change of its by-laws the time for electing its various subordinate officers and employes. The opinion closes its conclusion as to this question with the following language: “They may, however, by amending the present by-law, or adopting a new one, change the time of election as desired. It is concluded, therefore, that under the terms of the statute and by-law the plaintiffs are entitled to hold their offices, respectively, until August 1, 1909, the date on which their successors, to be elected in June, will qualify, unless sooner removed for cause, or the commissioners amend the by-laws and thereby change the time of holding the election. * * * ”

This language necessarily implies, and in fact declares, that the commissioners are not required to wait until plaintiffs’ terms of office expire to change or repeal the present by-law as to the time of electing its subordinate officers and employes, but may make such change in the by-law sooner, or at any time, and thereby terminate plaintiffs’ terms of office and’ elect their successors before August 1, 1909. Section 24 of the by-laws provides, however, that: “The board shall'not alter or amend any by-law in any way except by repealing it, and this- can only be done at a regular, meeting after having been presented at a previous meeting.” So, whatever action may be taken by the commissioners with respect to the by-law in question, they should be controlled by the provisions of the section, supra.

The opinion delivered on the motion to dissolve the injunction is extended as herein indicated. As in the matter of passing on the motion to dissolve the injunction, all the members of the court were consulted as to this extension of the opinion, and all concur therein.