164 Ky. 769 | Ky. Ct. App. | 1915
Opinion of the Court by
Reversing.
This action was instituted in equity by the city of Williamsburg, seeking to have an adjudication that each of the appellees, Weesner, Mount and Bradley, bad, by. tbeir conduct and declarations, abandoned and forfeited bis office as a member of tbe city council. Tbe lower court sustained special and general demurrers to tbe petition, and tbe city appeals. Tbe petition alleges that by act of tbe General Assembly it is a municipal corporation of tbe fifth class, and as such has power to sue and be sued. It is then alleged that at tbe municipal election in November, 1913, a mayor, and a city council, consisting of six members, were duly elected for tbe term of two years from tbe first Monday in January, 1914, and that defendants were three of tbe councilmen so elected; that thereupon it became tbe duty of tbe defendants, and each of them, as members-elect to meet on tbe first Monday in January, 1914, and take tbe oath of office, and as such members to attend tbe regular meetings of tbe city council once in each month thereafter (Section 3633, Kentucky Statutes); that, by ordinance theretofore adopted, tbe second Monday in each month and Nelson Háll were tbe time and place for such meetings; that each of tbe defendants bad failed to meet at the place named, with the other members, on tbe first Monday in
Under these circumstances the city has no means for levying or collecting taxes, there are no police officials to enforce order, and no one to look after the streets, sidewalks and other public property or sanitary conditions. If the streets need repair, the city is without officials to attend to it. There is danger of injury to persons and property by reason of the failure of the municipality to keep in proper condition the streets and
It must be said, however, that there is reason to believe that the city is suffering from the lesser of two evils. This belief is justified by the excuse which appellees in their brief offer for their refusal to attend meetings of the council. They say they “felt like they were entitled to some consideration in the appointment of city officers, ’ ’ and that the other councilmen and mayor would not concede this. Confessedly, then, it was for lack of consideration or inadequate consideration that they refused to serve. That being the motive behind their office-seeking, it follows that, embarrassing as is the city’s predicament because of their failure to serve, the city would probably suffer more if they attempted to serve. But the fact that the city suffers less than it would otherwise does not palliate the wrong of these offending members. The city is entitled to relief from the present danger — in that way it makes sure that greater harm will not befall it.
Where the members of a city council have abandoned and forfeited their office, and that body is left without a quorum, and the machinery of the city government is brought to a 'standstill, and the city is without power to start it again so that it may perform the duties to the public which it has assumed, as well as those imposed by law, and it is apparent there is no adequate remedy at law, a court of equity will not withhold its aid.
“Equity will not suffer a wrong to be without a remedy. This maxim includes the whole theory of equity jurisdiction, that it affords relief wherever a right exists and no adequate remedy at law is available.” 16 Cyc., 133.
Taking the statements of the petition as true, it appears that appellees have forfeited and abandoned their offices. The facts set up are sufficient to constitute abandonment.
In 29 Cyc., 1404, it is said:
“Office may also be terminated by abandonment. Abandonment means failure to perform the duties of the office. * * * The determination of the question whether an officer has abandoned his office is dependent upon his overt acts rather than upon his declared intentions. * * * It need not be determined judicially*773 that an office bas been abandoned in order that m a collateral proceeding the office be deemed to have been abandoned; and in-subsequent proceedings, either to regain possession of the office or otherwise, one who has abandoned an office is estopped from asserting a claim to such office.”
In Mechera on Public Officers, Chapt. V., Secs. 432-435, the following rules are stated:
“An office may also become vacant by its abandonment by the officer. Such an abandonment may be evidenced by a variety of acts and events, and, while the classification may not be the best possible, there will, for convenience sake, be treated under this head the vacation or abandonment of the office:
“I. By refusing- or neglecting to qualify.
‘ ‘ II. By refusing or neglecting to perform the duties.
“III. By removing from the district.
“IV. By engaging in rebellion.
“V. By death.
“Sec. 434. But the continued and absolute refusal or neglect to qualify at all and to enter upon the discharge of his duties, must operate so far as the delinquent himself is concerned, in vacating his title to the office. * * *”
“Sec. 435. Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office, he will be held to have abandoned it, not only where his refusal to perform was wilful, but also where, while he did not intend to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.”
The law as stated by these text writers is recognized in Kentucky. In Page v. Hardin, 8 B. Mon., 666, this court conceded “that an office may be vacated by abandonment. ’ ’
In Beard v. Smith, 6 T. B. Mon., 444, in defining forfeiture the court said:
*774 “Bacon, in Ms abridgement, title Forfeiture, defines it, ‘tbe omission or neglect of a duty which the party binds himself to perform, or to the performance of which he is enjoined by the law, is upon the breach or neglect thereof, called a forfeiture; that is, the advantages accruing from the performance of the thing, are by his omission defeated and determined. ’
“This definition included forfeiture of conditions, obligations, offices and estates. ’ ’
■ In the following cases this court recognized the law to be that an office may be forfeited and vacated by abandonment, although it was held that a non-occupation for one day merely was not sufficient: Taylor v. Johnson, 148 Ky., 649; Lewin v. Ft. Mitchell, 148 Ky., 816; Jewett v. Matteson, 148 Ky., 820.
The principles announced in the case of City of Somerset v. Somerset BanHng Company, 109 Ky., 549, are not in conflict with the authorities above cited. In the Somerset case the question was over the validity of a tax levy made at a meeting of the city council without a quorum. All of the elected councilmen had qualified and entered upon the discharge of their duties as required by law, but only three of them attended the subsequent meetings. In June following the mayor and the three members of the council, who had continued to meet in regular session, adopted a resolution declaring vacant the seat of one of the appellees because of his failure to attend the meetings during the four months preceding, Crawford was elected in his place. At the next meeting, with Crawford present, the seats of the other two absentees were declared vacant and filled in like manner. By the council, as thus composed, on August 22, the tax levy in question was made. The court held that the mayor and three councilmen did not constitute a quorum, and, therefore, they had no power to declare a seat vacant or elect a new member, and that the tax levy subsequently made was invalid because there was no quorum. Remarks in the opinion to the effect that the expelled members were entitled to their seats, and that the newly elected member had no right to the office because there was no vacancy to fill, were used in connection with' the lack of power of the council to declare or fill a vacancy or transact other business in the absence of a quorum. In other words, it was held that the places of the absentees were not made vacant by lawful action
Under the circumstances of this case, and with the facts established, as plead, a court of equity should so declare, so that the vacancies may be filled and the city government proceed in an orderly manner.
This is not a proceeding to remove the appellees from office. According to the facts set up in the petition, they, by their own conduct, have removed themselves from office, and their place is already vacant; this action is merely to have a judicial determination of that fact. We are of opinion that the petition states a cause of action and that the court érred in sustaining the general .demurrer.
But it is insisted that the city is without legal capacity to bring this action. By this it is meant, no doubt, that the mayor cannot sue unless authorized by the city council, and the petition shows that the city council was without power to give the authority for want of a quo
“A stranger could not without authority prosecute a suit in the name of a municipality; but the corporate name may generally be used by any officer or board authorized to represent the corporate interest involved in the action.” 28 Cyc., 176.
We are of opinion that the city has the right to bring this suit and that the mayor, by virtue of his office, is authorized to prosecute it in its name and behalf. For these reasons the judgment of the lower court is reversed and the case remanded. The demurrers will be overruled and further proceedings had in conformity with this opinion.