Oiux-rox or the ooitkt uy
Reversing.
Ry the fourth section of an act amending the act for the government of cities of the second class, approved March 15, 100 (Acts 1900, p. 15), it was provided: “The said fire department shall consist of one chief, whoso salary shall not be less than one hundred and fifty dollars per month; the engineer’s salary shall be eighty dollars per month; the electrician’s salary shall be seventy dollars per month, and the ordinary fireman’s salary shall be sixty-five dollars per month.” The appellee, Thompson, brought suit against, the appellant,- ilie city of Lexington, a city of the second class, alleging that he was a resident of that city, and employed by it as an ordinary fireman, having been appointed by the board of police and fire commissioners; that prior to the passage of the act his salary as fireman was $50 per month, and by that act was increased to $65 per month; that he continued to serve as ordinary fireman up to July-22, 1901, when he resigned; that from time to time he made demand upon the city for the increase of salary provided for by the act at the rate of $15 per month, which was refused. His prayer was for judgment for the difference between the salary paid him and that fixed by the act during Iho period from March 15, 1900, to Jul.v 22, 1901, aggregating $243.75. . A demurrer to the petition was filed and overruled. The city stood by its demurrer, ■ and judgment was-rendered against it. The ground of the demurrer is that
For appellee it is contended that,the act does not violate any provision of the Constitution of the State, and -there-, fore can not be declared void because it is, or is supposed, to be, in violation of the spirit which may be supposed to pervade that instrument. Mr. Cooley is quoted in support of this proposition: “It the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate, fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are not a set' of inflexible rules, vital and active in the constitution, though ■ unexpressed, . . . nor are courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.” Cooley, Const. Lim. (5th Ed.), pp. ,202-204. Numerous other authorities are cited in support of the doctrine thus laid down, and among them the opinion of Chief Justice Robertson in Griswold v. Hepburn, 2 Huv., 24, where, after discussing the difference between the federal Constitution as a grant of power and the State Constitution as a written limitation upon the powers of the legislative organ of the people, it, is said: “But the same reason being inapplicable -to state legislation of doubtful compatibility with a State Constitution, proper deference to the legislative department should preponderate in favor of the constitutionality of its acts, and requires the judicial department to ree
The distinction between the two capacities in which a municipality may act is nowhere better stated than in the two great opinions of Judge Cooley in People v. Hurlbut, 24 Mich., 44, 9 Am. Rep., 103, and People v. Common Council of Detroit, 28 Mich., 228, 15 Am. Rep., 202. In the former case the question was as to the1 power of the Legislature to appoint permanent officers for the full term, whose duties were purely municipal, and arose over an act which created and appointed a board of public works. In the opinion by Judge Cooley, it was said: “In the case before us, the officers in question involve the custody, care, management and control of the pavements, sewers, water
The doctrines stated in McDonald v. City of Louisville (recently decided) 113 Ky., 425) (24 R.,271) (68 S. W., 413) arc in full accord with the views here expressed.
For the reasons given, the judgment is reversed, and cause remanded, with directions to sustain the demurrer to the petition, and for further proceedings consistent herewith.