Glazier v. City of Newport

132 Ky. 181 | Ky. Ct. App. | 1909

Opinion op the Court by

Judge Hobson

Reversing.

The city of Newport is a city of the second class. By section 3043, Ky. Stats., 1903, which is a part of the act governing cities of the second class, it is provided that the board of aldermen shall be composed of four members, but that the general council may by ordinance provide that the number of aldermen may be increased to any number not exceeding eight, Previous to the November election, 1908, the number of aldermen had been increased to five. After that election an ordinance was passed by the board of councilmen increasing the number of aldermen to eight; but the ordinance1, after passing the board of eouncilmen, was not presented to the board of aldermen at that meeting before it adjourned. Section 3110, Ky. Stats., 1903, defining the power of the mayor, is as follows: “He shall, from time to time, give to the general council information in regard to the affairs of the city, and recommend to their consideration such measures as he may deem expedient. He may for special reasons, convene the general council at any time.” The mayor, learning that the ordinance re^ferred to had not been acted on by the board of aider-men, issued a call for a special meeting of the board of aldermen, and notice of the call was given each of the five members of the board. The board met pursuant to the call, and the ordinance was then given its first reading. They then adjourned. Thereupon the mayor, by another proclamation, called the board in special session ten minutes later, and of this- meeting no notice was given, except to those members of the board who were there. The board met pursuant to the call, and gave the ordinance its other readings, and1 thereupon passed it. The next day they were advised by the city solicitor that the second meeting held that night was void, and thereupon, at the next regular meeting of the general council, the board of aldermen gave the ordinance its second and third readings, and then passed it again.

The question before us is whether the ordinance thus passed is valid. It is conceded that the second meeting, held under the second proclamation of the mayor, and without notice to all the board, was void. It is also conceded that the ordinance could not be passed by the board of aldermen at the same meeting at which it was introduced, and that therefore the passage of the ordinance at the regular meeting referred to was not valid unless the prior special meeting, at which the ordinance was introduced and read for the first time, was a valid meeting of the board of aldermen. Section 3046, Ky. Stats., 1903, regulating the meeting's of the boards, is as follows: “Both of said boards shall .meet at least once in each month, and shall not adjourn for a longer time, but may adjourn from day to day, and sit as long as business requires. When both boards are in called session, one shall not adjourn without the concurrence of the other for a longer time than twenty-four hours. If they shall fail to agree on adjournment, the mayor may adjourn them to a day not beyond the next regular time of meeting. ’ ’ It will be observed that by the statute the mayor may for special reasons convene the general council at any time; but the general council is composed of both the board of aldermen and the board of councilmen. The power to convene the municipal legislature at any time is not authority to convene one of the boards •without the other. The power of the mayor is derived wholly from the statute. He has no power except that which the statute confers. The power to convene a general council in session is one thing,' and the power to convene one of its hoards in session to legislate alone is a very different thing. The purpose of having two boards is that one may act ás a check upon the other, and that the ordinance’, when passed, shall represent the common judgment of both bodies. It was not contemplated that an ordinance might be passed by one of the boards at a regular meeting, and that the other board might be called in special session by the mayor for the passage of the ordinance, when the members of the board first acting had no notice of the proceeding and no opportunity to take any action. If the mayor had followed the statute and called a special meeting of the general council, the board of eouncilmen, when they met, might have passed a resolution withdrawing the proposed ordinance from the board of aldermen before it was acted upon by that body; and this is not infrequently done. If the board of eouncilmen had been in session, and the ordinance had been amended by the board of aider-men in some particular, and the eouncilmen had been in session, it might have gone back to that body for their concurrence in the amendment; but the fact that this body Was not in session, and that the adoption of the amendment would defeat the entire purpose of the meeting, might deter the board of aider-men from making an amendment which their judgment approved. One board may not adjourn without the concurrence of the other for a longer time than 24 hours, when they are' called' in special session, and we are satisfied that a calling together of one of the legislative boards of a city to enact general legislation which has been begun in the other board is not warranted by the statute or contemplated by it. We are, therefore, of opinion that the called meeting of the board of aldermen referred to was not valid, and that, as the ordinance was passed by the board of aldermen at the first session- after it was introduced into that body, it was not a legal ordinance.

Judgment reversed, and cause remanded, for a judgment as above indicated.