Riffe v. Tinley

103 Ky. 631 | Ky. Ct. App. | 1898

CHIEF JUSTICE LEWIS

delivered the opinion of the court.

So much of section 2060 as is necessary to be construed in this case is as follows: Physicians appointed as health officers for cities, towns and counties shall receive reasonable compensation for their services, to be allowed by the councils, trustees or county courts of the cities, towns or counties, and to be paid as other city, town or county officers are paid, and such officers may be removed at any time by the local boards appointing them.”

By section 2059 it is made the duty of the city council of every city in this State of 10,000 inhabitants or more (the city of Covington being in that class) to appoint a board of health for such city, to consist of six persons, having power to elect a competent physician, who shall be the health officer of such city, and the executive officer of and ex officio a member of such board of health.

Appellant brought this action, complaining that having been, September 8, 1896, duly elected health officer of the city of Covington, he was December 7,1897, without notice of or trial upon charges preferred by appellees, composing the board of health of Covington, removed from said office, and appellee Schmidt appointed in his stead. The relief prayed for is an injunction restraining appellees, the board of health, from interfering with appellant’s right to perform the duties of said office, and appellee Schmidt from performing said duties or receiving any compensation therefor.

The general rule is that a person appointed or elected to an office, the term of which is prescribed, can not be removed therefrom by even the appointing power, except upon trial of charges preferred, and of which he has notice, but the statute does not fix any term of the office in question, but instead provides the incumbent may be removed at any time by the board appointing him, and we think that was intended to be and is in fact, equivalent to power of removal at pleasure or discretion., It is true appellant alleges in an amended petition that by an ordinance of the city of Covington, passed on the' — day of — , the term of office of the health officer of said city was fixed at two years from the date of his qualification.

But we think that ordinance, if passed, was ultra vires because it was plainly the policy of the legislature there should be no term of such office, and the incumbent should be for manifest reasons removed at the pleasure of the board of health. Besides, even if the ordinance was valid, it could not have the effect to curtail the plenary power of removal given by the statute to the board of health.

Therefore, the court did not err in sustaining the general demurrer to the petition, denying, the injunction and dismissing the action.

Judgment affirmed.