126 Ky. 759 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
The statute providing for and regulating the government of cities of the first class contains the following (section 2810, Ky. St. 1903): “Each of said boards may appoint and, at pleasure, remove a chief of each department under its control. The board of public works shall have the power to appoint a chief engineer for the city and such subordinate engineers as may be necessary; provided, that all applicants for the position of chief engineer shall first he examined hy a board of three competent civil engineers, to be elected by the general council, and that no applicant who fails to pass an examination satisfactory to said board of examiners shall be eligible ■ to the office of chief engineer, and no person shall hold the position of chief engineer until he shall have first passed said examination. In all cases where the examination is made in writing, all the papers shall be filed of public record with the secretary of the board of public works. The general council shall
The new charter of cities of the first class (Acts 1893) provided a board of public works, composed of three members (section 2824, Ky. Stats. 1903), who had exclusive control over the construction and maintenance of public ways, sewers, lighting, and public buildings. Other boards are provided for the administration of other departments. Prior to 1901 the board of public works had appointed appellant as chief engineer; the appointment having been made under section 2810, supra. A new administration was elected in 1901. The new mayor appointed .a new board of public works; but before it was inducted into office the old board by resolution elected appellant to the office of chief engineer of the city for a term of four years. The new board when it came into office a few days later removed appellant without notice, cause, or trial, and elected appellee to the office. This suit resulted. It was brought by appellant, claiming that he was the legal incumbent of the office, and charging that appellee was illegally setting up claim
The question for decision is the power of the board' of public works to remove appellant, as was done. Ye are of opinion that the office of chief engineer was created by the amended section 2810, Ky. Stats. 1903, and he was “a chief of a department” under control of the board appointing him. His term of office was not fixed, but, as expressed in the statute, was at the pleasure of the appointing board. He was liable to removal at any time, without notice, and .without cause, other than the pleasure of the board. Mechem on Public Officers, 445, 454, states the rule of law, as frequently applied by this court, as follows: “Where the tenure of the office is not fixed by law, and no other provision is made for removal, either by Constitution or by statute, it is said to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. * * * ” And: “In those cases in which the office is held at the pleasure of the appointing pgwer, and where the power of removal is exercisable at its mere discretion, it is well settled that the officer may be removed without notice or hearing.” Johnson v. Ginn & Co., 105 Ky. 654, 20 Ky. Law Rep. 1475, 49 S. W. 470; Tennessee Paving Co. v. Barker, 119 Ky. 654, 59 S. W. 755, 22 Ky. Law Rep. 1069; Campbell County v. Trapp, 113 Ky. 119, 67 S. W. 369, 23 Ky. Law Rep. 2356; Board of Council of Frankfort v. Brawner, 100 Ky. 166, 37 S. W. 950, 38 S. W. 497, 18 Ky. Law Rep. 684; Riffe v. Tinley, 103 Ky. 631, 45 S. W. 1046; London v. City of Franklin, 118 Ky. 105, 23 Ky. Law Rep. 2306, 80 S. W. 514. The rule is different where the officer is one provided for by the Constitution,
We agree with the circuit court that the resolution of the old board electing appellant for a term of four years was void as far as it attempted to fix a term; apd that he was removable at the pleasure of the board, without notice, cause, or trial.
Judgment affirmed.