97 Ky. 249 | Ky. Ct. App. | 1895
delivered the opinion of the court.
The questions involved in these appeals relate to the legality of the election of mayor and councilmen of the city of Hopkinsville, under the provisions of the constitution, and the act for the government of cities of the fourth class.
The action first named was brought by the appellants Brown and others to prevent the usurpation of the office of councilmen of the city named by the appellees Holland and others; the other was brought by the appel
The appellees, Holland and others, were voted for on the same day by the qualified voters of the wards of the city, of which there were seven, the voters of each ward voting for only one member of the council, and the election being held in each ward by officers appointed by the city council, and with ballots provided by the city clerk. The appellant Campbell was elected mayor by the qualified voters of the city at the same general election held at the four precincts; while the appellee Dabney was appointed mayor by the council on the first Tuesday in January, 1894, in pursuance of an ordinance of the council adopted on September 5, 1893, providing for such appointment.
It is contended by the appellants: First, that the only lawful method of choosing members of boards of council of cities of the fourth class — the city of Hopkinsville being one of that class — is that of election by the qualified voters of such cities as provided by section 160 of the constitution, which means, by force of the language used therein, election by the qualified voters at large; and that the provisions of section 4 of the act for the government of cities of
Second, That however this may be, the provisions of the old charters by which these cities were divided into wards were repealed or abrogated under the operation of section 166 of the constitution, when the act for the government of cities of the fourth class went into effect, that is, on the 28th of June, 1893, and no wards have since that time been established in the city of Hopkinsville, and none were in existence at the November election, 1893.
Third, That elective offices in all cities and towns were required by section 167 of the constitution to be filled at the general election in November, 1893, which was the “one election” for that year allowed by section 148 of the constitution, and which was provided for by the general election law approved June 30, 1892 (chap. 65, acts 1891-2-3) and conducted by officers appointed by county judges with the official ballots furnished by the county court clerks.
Fourth, That the only lawful method of choosing mayors of cities of the fourth class is prescribed by the first clause of section 160 of the constitution, which is that of election by the qualified voters of such cities, and the board in this instance had no constitutional power to fix the method by “ordinance” and require the mayor to be appointed by the board. That the attempt by the General Assembly to delegate such power to the boards of councils of- such cities is unauthorized by the constitution.
For the appellees it is contended, and was so held by the court below: First, that members of legislative boards of all cities, save those of the first and second classes, might be elected by the qualified voters thereof, voting by wards or at large, and in cities of the first and second classes such
Second, That under the provisions of section 160 of the constitution, mayors of cities of the fourth class might be appointed or elected, as provided by law; that by the act for the government of cities of that class, it was provided that the mayor might be elected by the people or appointed by the council, as provided by ordinance, and that such an ordinance was adopted, and the appellee Dabney appointed mayor in strict accordance- with the provisions of the constitution, the act governing fourth class cities and the ordinance of the board on that subject. That the appellant Campbell was not so appointed, and is therefore not entitled to the office.
We shall consider the case of the councilmen first. So
Section 4 of the act for the government of cities of the fourth class, approved June 28,1893, and in force from that date, is as follows: “The members of the board of council shall be elected the first Tuesday after the first Monday in November every two years; shall be residents of the wards they represent, and .shall be elected by a majority of the votes cast by the qualified voters of the wards for which they respectively stand: Provided, The city is divided into wards, otherwise they shall be elected by a majority of the votes cast by the qualified voters of the city, of which they must be residents,” etc.
In our search, therefore, to ascertain the meaning of the words “shall be elected by the qualified voters thereof” in section 160 supra, we are met with a legislative construe
In other words, when the constitution requires members of legislative boards of towns and cities to be elected by the qualified voters thereof, must they be elected by the voters at large before it can be said that they are elected by the qualified voters of the city? And when such members are elected by the qualified voters of the wards of a city can it be said that they are not elected by the qualified voters of the city?
In this connection, it is to be observed that the clause in question is followed by the proviso that the mayor and police judges of certain cities may be appointed or elected, and we are urged to draw the inference that the intent of the framers of the constitution was simply to declare that the offices of members of municipal boards should be elective and not appointive, the manner of The election, whether by wards or at large, not being particularly under consideration. It is also to be seen that another significant clause follows in which the words “at large” are used, and from which it is argued that the election provided for in the first clause, in which those words are omitted, might be held by the qualified voters of the city, voting either at large, or by wards.
The provision is: “When any city of the first or second class is divided info wards or districts, members of legislative boards shall be elected at large by the qualified voters of said city, but so selected that an equal proportion thereof
If the clause, “members of legislative boards or councils of towns and.cities shall be elected by the qualified voters thereof” casi fairly mean only that they are to. be so elected “at large,” sit is difficult to escape the conclusion that much useless repetition has been indulged in by the framers of the constitution. It can not be that solely for the purpose of providing that an equal proportion of the members should reside in each of the wards, it was found necessary to use the words “at large.” Without these words, the clause, “but so selected that an equal proportion thereof shall reside in each of said wards or districts,” conclusively negatives the idea of an election by wards, because an election by wards would necessarily require an equal proportion of members to reside therein, and the provision would be superfluous. The use of these words, “at large,” in providing for elections in cities of the first and second classes, seems strongly to authorize, by implication at least, a different mode of election as to other towns and cities. They are seemingly used to emphasize the method to be adopted in elections of members in cities of the first and second classes, and distinguish it from that to be used in all other classes. Not that in other classes the method must be different, but that it may be. The use of the significant words in the one case and the omission of them in the other present the two methods in' contradistinction, the one from the other.
Moreover, the language of the first clause does not in terms preclude an election by wards. The learned judge below aptly says in this connection: “Of this section (160) it
The section as first reported by the committee having the matter in charge read thus: “The mayor or chief executive, police judges, members of legislative boards or councils and of school boards of towns and cities shall be elected by the quálified voters thereof. * * * * When any city or town is divided into wards or districts, members of legislative and of school boards shall be elected at large by the qualified voters of said town or city, but so selected,” etc.
The distinguished chairman of the committee in deference to what he declared to be the demands of the smaller towns and cities, and for the reason that it secured to them the supremacy in governmental affairs of the more intelligent element in such cities and towns, amended the section in behalf of the committee, so that the second clause read as follows: “When any city of the first or second class is divided into wards or districts, members, etc., shall be elected at large,” etc.
Of this amendment, a prominent delegate said: “I hope this amendment will pass. It applies to my town (Hop-
After reading the section as amended a distinguished member of the committee said: “Now, it does not take away from the legislature the power, by general laws, to regulate the mode in which the legislative boards of towns, other than of the first and second class, shall be arranged. If hereafter the legislature should want fo provide a. mode of representation in these towns by electing from the town at large, it could do so. This does not provide for one way or the other, but leaves it with the legislature, and does not interfere with these little towns, such as the one represented by the gentleman from Christian county, but is simply applicable to cities of the first and second class.” And the committee amendment appears to have been agreed to without division. (Debates, Constitutional Convention, vol. II., pp. 2905-6.)
However, if, as contended, the provisions of the oíd charter dividing the city into wards were repealed by the new charter or act for the government of cities of the. fourth class, and the wards tiras abrogated under the operation of the constitution, the law providing for ward elections is not to be applied, in which event the appellants, as they were elected “by a majority of the votes cast by the qualified voters of the city,” are entitled to the offices.
The contention is that the “ward” law of January, 1890, dividing the city into seven wards, being an amendment of the old charter of the city, 'was abrogated and repealed
Other references to the division of such cities into wards in the present tense are made in sections 3 and 4 of the act, and while these references may possibly refer to some future division into wards, we do not think such is the meaning of the references. It seems absolutely inconsistent that the legislature would grant the council the power to change the boundary lines of wards in existence at the time of the passage of the act, if upon its passage and by reason thereof, those wards became obliterated.
By the ordinance of September 5, 1893, the boundaries
It is said, however, that the one election for each year, provided for in section 148 of the constitution, was that of the general election held by the officers required to be appointed in pursuance of the general election law. This is doubtless true. The appellants, however, are not concerned in the settlement of this question. If the-appellees were not elected in strict accordance with the requirements of the general election law, that fact does not give validity to the title of the appellants upon the strength of which alone they can recover the office. They are concerned in the determination of the questions whether the- election “by wards” was authorized by the constitution, and whether the ward system was continued by the act of June-28, 1893, because, if not so authorized and continued, the appellees were not only not elected, bixt the appellants were. But if constitutional authority exists for the ward elections, and such wards in fact existed, the appellants claiming the offices of councilmen have no further interest in the controversy.
So, also, we may say in this connection, the appellant Campbell claiming the office of mayor is not interested in the question whether or not the appellee Dabney was appointed by a board of councilmen, in all respects elected in pursuance of the general election law.
The only question he is concerned about is whether the appointive method for choosing a mayor, provided for in the act for the government of cities of the fourth class, and pursued in the selection of the appellee Dabney, was axxthorized by the constitution; for, if so, the appellant’s election,
The language of the act is: “The mayor may be elected by the people or appointed by the council, as may be provided by ordinance.” (Sec. 3, ch. 241, acts 91-2-3.)
The constitutional provision is that mayors of towns of the fourth, fifth and sixth classes “may be appointed or elected as provided by law.” (Sec. 160.)
The contention is that the legislature can not delegate to the various boards of council the right to provide the manner in which the mayors of these cities may be selected, but must itself provide the manner. And, moreover, that such a delegation of power is in violation of section 156 of the constitution, requiring the organization and power of each class of cities “to be defined and provided by general laws, so that all municipal corporations of the same class shall possess the same power and be subject to the same restrictions.”
The general rule that the legislature can not deputize others to perform its governing functions is well settled. (Cooley’s Const. Lim., 6th ed., 137.)
It, however, “may delegate to municipal and other public corporations some portion of its own powers for local purposes,- the general rule being that it may authorize others to do things which it might properly, yet can not understandingly or advantageously do itself.” (19 Am. & Eng. Ency., 464, and eases there cited.)
In Thompson v. Floyd, 2 Jones L. (N. C.) 313, cited by Mr. Sutherland in his work on Statutory Construction (sec. 70), it is said: “Neither is it necessary for us to consider the general question whether the .C-eneral Assembly can delegate any portion of its legislative functions to any man or set'of men, acting either in an individual or corporate capacity.
In Slack v. Maysville & Lexington Railroad Company, 13 B. M., 1, it is said that the legislative will is ordinarily enforced by the judiciary or the executive, or by both combined. “But the legislature is not restricted,” says the court, “to these agencies. It may select or appoint others, as is often done, when the object of the law is to accomplish local or individual purposes. The agency generally employed for applying the legislative will and the power of the government to purposes merely local, has been that of county courts for counties, and of trustees of towns or the municipal authorities of cities for towns and cities, which, to the extent of the powers permanently or temporarily vested in them, and whether allowed a discretion or not, do but carry into effect the legislative will and power.”
In considering a different branch of this case, we have seen a manifest purpose, on the part of the framers of the constitution, to provide a local government best suited to
Nor do we think that the provision for the election, or appointment of this officer is in conflict with sec. 156 of the constitution, requiring the organization and powers of each class of cities and towns to be defined and provided for by general laws, and all municipal corporations to possess the same powers and be subject to the same restrictions.
It seems to us the organic structure of a city government with an appointed mayor is not one on that account different from that of a city government in which the mayor is elected by the qualified voters. As said by the learned judge below: “A mayor is equally a mayor with the same powers and- subject to the same limitations whether chosen by a vote of the people of the city at large or, whether selected or chosen by the board of council,” and certainly, it seems to us, the powers and the restrictions therein of all municipal corporations may be defined and provided for by general laws whether the office of mayor be filled in the one way or the other.
From what we have said it follows that the judgments below dismissing the petition of the appellants Brown and others, and of the appellant Campbell, are correct, whether or not the appellees are respectively entitled to hold their offices.
IVe have seen that the constitution permitted, and the act for the government of cities of the fourth class required, the election of counoilmen by the voters of each ward, but by in
Wherefore the judgment in each of the cases is affirmed.