113 Ky. 763 | Ky. Ct. App. | 1902
Opinion op ti-ie court by
Revebsing.
This wag a proceeding instituted, under section 3063, Kentucky Statutes, by a citizen of Lexington, to test the validity of ordinance No. 1113, adopted by the city council. The ordinance is entitled “An Ordinance No. 1113, to amend section No. 20S, chapter XII., of the city ordinances,” and ordains that “the following shall be the public offices and clerkships in the city of Lexington, and the officers, clerks and assistants shall receive the annual salaries attached to the respective offices, payable monthly.” Among the offices and employments mentioned are the following, concerning which the controversy in this case arose:
Assessor’s clerk ................................. $600
Assistant treasurer .............................. 900
Engineer’s assistant ............................. 600
License inspector ................................ 720
Assistant city clerk .............................. 600
Mayor’s clerk .................................... 600
Jailer’s.assistant ................................ 900
Ambulance driver ................................ 480
One patrol-wagon river .................. 720
These offices áre alleged to be unauthorized by the charter of the city, and in violation thereof; and it is claimed that' the ordinance is therefore, and for other reasons, illegal and void.
The objections to the ordinance may be Condensed as follows: First. There is no inherent or implied power in cities of the second class to create the offices or deputy-ships named, and provide salaries therefor; and, to the extent of such attempted creation, the ordinance is void, Second. The mode of appointment provided for by the ordinance is in violation of the Constitution and the charter, which require the selection of such officers to be made by the general council. Third. That the city council was without power to codify the whole body of ordinances of the city by a single act of legislation, or to amend any part of such a publication by mere reference to its chapters or sections; that the ordinance in question covers more than one subject, and that is not expressed in its title. Fourth. That in so far as the ordinance undertakes to change the compensation of other officers of the city of Lexington, such change to take effect from the passage of the ordinance, it is in violation of the Constitution and void.
By section 156 of the present Constitution it is provided that: “The cities and towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. The organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same
The office of deputy city clerk, the creation of which is also complained of by appellant as having been accomplished by ordinance subsequent to the passage of the act for the government of cities of the second class, stands upon a somewhat different footing. The statute (section 3133) provides that “it shall be the duty of the city clerk, in person or by deputy, to attend all meetings of the general council both in joint and separate session. . . .” This statute seems plainly to carry authority, by implication, for the existence of the deputy city clerk. It seems, moreover; that under the former law there was authority for a clerk of each board of the-general council; and we have little difficulty in holding that the city is authorized to create the office of deputy clerk, provided the ordinance is in otlmr respects unobjectionable.
But the offices of assistant treasurer, assistant jailer, as
We have seen that the Constitution provides with some degree of particularity for the officers of municipalities. The statute for the government of cities of the second class does so with greater particularity. It authorizes, in section <3172, before quoted, the council to re-create such of the offices theretofore authorized for each city as may be needed to effect the corporate purposes. This provision of the charter leaves each of the cities of the second class with pow’er to supply itsedf with what is presumably a sufficient official force for its present needs, and also, it would seem, to fix a limitation sufficiently elastic, in view of the fact that the Legislature meets biennially. It is difficult to understand how an express power given in an act' abolishing existing offices to re-create such of them as may be
It is also objected that the ordinance is invalid under section 3059, Kentucky Statutes, which provides that no ordinance shall embrace more than one subject, and that shall be expressed in the title, together with a provision that no ordinance shall be revived or re-enacted by mere reference to the' title thereof, but the same shall be set forth at length as if it were an’ original ordinance, and, in case of amendment, that the ordinance or section amended shall be set forth in full as amended. By section 3061 it is provided that all ordinances now in force, “not inconsistent with this act and the Constitution of the State, are hereby continued until they are revised, and until re
■ It is further objected that The ordinance in question undertakes to change the compensation of other officers recognized and authorized by the act. This objection would be clearly well taken under section 161 of the Constitution, and section '3064, Kentucky Statutes, if we construed the ordinance to apply to the persons who were incumbents of those offices' at the date of the passage of the ordinance. This construction, however, should not be given the ordinance, under the well-known’ rule which re--quires legislation To be so construed, if possible, as to make it valid; and the provision for the change of salaries will therefore be held not to take effect until the expiration of the terms -of the incumbents.
For the reasons given the judgment is reversed, and