Hill v. Anderson

122 Ky. 87 | Ky. Ct. App. | 1906

OPINION by

Chief Justice Hobson

— Affirming.

Appellants are citizens of Weston, a town oi me sixth class in Crittenden county, Ky., incorporated on March 8, 1876. They filed this suit, alleging that for more than 17 years last past none of the rights and powers granted to the town had been exercised; that there had been no election or appointment of any officer for the town, and no town government; that the county judge had appointed five men as trustees of the town at a special term of the county court; that there were not 125 inhabitants in the town, and that they were opposed to continuing the town government; that for 17 years the streets of the town had been kept up as county highways; that three of the persons appointed trustees did not reside in the town; that the purpose of appointing the trustees was to grant liquor license, and that the majority of the people of the town were opposed to the granting of such license, and had for 17 years refused to hold an election for town officers or to exercise any powers as a town. They prayed an injunction restraining the trustees from acting. The circuit court sustained a demurrer to their petition and dismised it. From this judgment they appeal.

A municipal corporation is not dissolved by the failure to élect officers or to exercise the corporate powers. The rule on this subject is thus stated in Dillon on Municipal Corporations, section 110: ‘ ‘ The corporation is. mainly and primarily, if not .wholly, an instrument of government. The officers do not constitute the corporation, or an integral part of it. The existence of the corporation does not depend upon the existence of officers. The'qualified voters or electors have, indeed, the right to select officers; but such officers are the mere servants or agents of the corporation, and hence the doctrine of a dissolution by the loss of an intergral part has, in such cases, no place. If all the people of the defined locality should remove from or desert it, the corporation would, from necessity, be suspended or dormant, or perhaps entirely cease; but the mere neglect or failure to elect officers will not dissolvé the corporation, certainly not while the right or capacity to elect remains. In this respect municipal corporations resemble ordinary private corporations, which exist per se, and consist of the stockholders who compose the company. The officers are their agents or servants, but do not constitute an integral part of their corporation, the failure to elect-whom may suspend the functions, but will not dissolve the corporation. ” It is therefore immaterial that the town of Weston has not kept up its corporate organization, or that for 17 years it has been without corporate authorities.

The Statute authorizes the county judge to appoint trustees for a town of the sixth class when there shall be a vacancy in the entire board of trustees, as there was here. (Ky. St. 1903, section 3692.) Special terms of the county court may be held at any time for the transaction of any business except the probating of a will or the granting of certain licenses. (Ky. St. 1903, section 1058.) Although the population of "Weston is now not sufficient for it to be organized into a town (Ky. St. 1903, section 3713), still, the Legislature having created it a town and placed it in the sixth class (Ky. St. 1903, section 2740), it remains a town until changed by the Legislature. If the people do not wish a town government, the remedy is to be given by the Legislature.

If the trustees appointed do not live within the town, they cannot properly hold the bffice. (Ky. St. 1903, section 3671; Const, section 234.) It has beenheld that a person who holds an office to which he is ineligible under the Constitution is guilty of usurpation of office (Ky. St. 1903, section 1364; Commonwealth v. Adams, 3 Metc. 6), or he may be proceeded against by quo warranto; but, as there is an adequate remedy at law, an injunction will not be granted upon this ground. In High on Injunctions, section 1312, it is said: “No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office; such questions being of a purely legal nature, and cognizable only by courts of law.” See, also King v. Kahue, 87 S. W. 807, 27 Ky. Law Rep., 1080.

Judgment affirmed.