Hobbs v. Upington

121 Ky. 170 | Ky. Ct. App. | 1905

Opinion by

Chief Justice Hobson

Affirming.

The board of aldermen of the city of Lexington consists of eight members, four of whom are elected annually for a term of two years. On March 19, 1902, E. W. Shanldin, whose term expired on December 31, 1903, resigned, and E. J. Allen was appointed to fill the vacancy, his appointment expiring at the November election, 1902. At that election W. D. Wilson, E. J. Allen, R. A. Downing, John Y. Upington and W. C. G. Hobbs were nominated and elected as aldermen, but by an oversight it was not indicated which of them was to fill the unexpired term of Shanklin, and this mistake was not discovered until after the election, when all of them claimed the full term, and no one was willing to take the short term. There was considerable discussion as to what should be done, and finally a.meeting was held at which the five men and John L. Barclay, Plobbs then proposed as a settlement of the difficulty that, if they would elect him president of the board, he would take the short term, as he did not who was also one of the aldermen, were present, care to be a member of the board for longer than a year and had other aspirations in view which the presidency of the board might tend to promote. The clay was made chairman and Wilson secretary. The meeting was called to settle the difficulty. Bar-proposition was unanimously agreed to, and was carried into effect by the election of Hobbs as president when the board was organized in January, 1903. Allen was advised that, if he acted" as aider-man after the November election, it might be regarded that he had elected to take the short term, so he did not act with the board between the November election and the 1st of January, and to fill the vacancy thus created until the 1st of January one Morgan was appointed, who acted as a member 1903, four new aldermen were elected, and when the new board came to organize in January, 1901, Hobbs denied having agreed to take the short term, and the new board thereupon adopted a resolution, reciting in effect that as Upington had received the lowest number of votes, he was elected for the short new board organized in January. In November, term; and thereupon Upington was no longer recognized as a member of the board. The mayor also sent the board of aldermen a communication in which he recognized the other four members as the holding over aldermen. Upington then filed this action against Hobbs, Wilson, Allen and Downing, praying that Hobbs be required to abide the election which he had made to take the short term and that Upington be adjudged entitled to the seat for the long term. An answer was filed controverting the allegations of the petition. The case was tried by a jury. The proof showed the facts above stated. Hobbs did not testify on the trial. The court gave the jury the following instruction: “If the jury believe from .the evidence that by an agreement between the plaintiff, J. V. Upington, and the defendants, W. C. G. Hobbs, K. A. Downing, E. J. Allen and Gr. D. Wilson, said Hobbs agreed that, if elected president of the board of aldermen of the city of Lexington, he, the said Hobbs, would accept the office of member of the board of aldermen of said city for the term ending with the 31st day of December, 1903, and if the jury further believe from the evidence that said Hobbs under said agreement was elected to, and did hold, the office of president of the board of aldermen of said city, the jury should find for the plaintiff. And unless the jury do so believe from the evidence, the jury should find for the defendant.” The jury found for the plaintiff, and, the court having entered judgment in his favor, the defendants appeal.

The charter of Lexington provides in substance that the board of aldermen shall determine the election and qualifications of its members, and it is insisted for the appellants that, the board having determined that Upington took the short term, the courts are without jurisdiction in the premises. The difficulty with this position is, that in order for tlie board to act, it must have had a quorum competent to act. Hobbs did not vote upon the resolution, upon tile idea that he had no right to vote in his own case. But Downing, Wilson and Allen had no more right to vote upon tlie resolution than Hobbs or Upington; for the board had as much right to determine that any one of them took the short term as it had to determine that Hobbs or Upington took it. In determining a matter of this sort the board acts in a quasi judicial capacity, and no man can vote in his own case in a matter of this sort. (Taylor v. Democratic Committee, 120 Ky., 672, 87 S. W., 786, 27 Ky. Law Rep., 1064.) It follows that there was no quorum of the board of aldermen who could properly vote on the resolution, and, there being, no quorum the resolution is not the valid act of the board of aldermen, and is not binding. Not only so, but the rights of the parties were fixed before the board organized and were vested. The power lodged in the board of aldermen by tlie statute to determine the election and qualifications of its members does not authorize them to take from a member, without right, an office into which he has already been inducted under a previous board, and to which he has a vested right. The courts may protect such a vested right, no less than any other property right which may be violated.

The mayor was given no authority to settle the matter. His message recognizing four persons as aldermen added nothing to their rights. When the election was held in 1902, and five men were elected, without any indication as to which was to have the short term, the fact that Upington had received less votes than any of the other four was no reason for assigning him the short term. The proper way of settling the dispute as to who was to take the short term would have been to east lots. This, no doubt, would have been done, but for the fact that Hobbs agreed to take the short term if they would elect him president. By making this agreement he obtained the office of president and prevented the question being settled by lot as to who should have the short term. When he thus agreed to take the short term, and prevented the question being settled by lot, he is estopped, after the expiration of the short term, to claim the long term. The agreement between the five men as to which should take the short term violated no public policy. On the other hand, the law favors the settlement of disputes. Hobbs, having agreed to take the short term, must abide his agreement, just as he would have been compelled to abide an agreement to determine the matter by lot,,if in the drawing he had drawn the short term.

Judgment affirmed.