139 Ky. 116 | Ky. Ct. App. | 1910
Opinion op the Court by
Eeversmg.
The Constitution allows the Legislature to provide that officers of cities and towns of this commonwealth, except mayors and legislative bodies, may be such and be elected or appointed as may be required by law. Section 160, Const. The cities are required to be divided into classes. Section 156, Id. And they have been classified. In the first class Louisville was placed. In a statute providing a government for cities of the first class various phases of the government are also classified, and set apart for administration by particular officers or bodies, who are to be elected or appointed and paid as set out in the statute. Among these provisions is section 2909, Ky. St. (Russell’s St. Sec. 550), relating to cities of the first class, reading: “There shall be appointed by the mayor immediately after the expiration of the term of office of the present city attorney in cities of the first class, a city attorney, whose duty it shall be to give legal advice to the mayor, members of the general council; and all other officers and boards of the city in the discharge of their official duties, and, if requested, he shall give his opinion in writing and they shall be preserved for reference. It shall be his duty to defend all suits against the city, and to
When the general council enacted that an attorney be appointed by the mayor whose official duty it was to perform much if not all the things required by the statute of the city attorney and particularly w,hen the mayor’s counsel, as the new officer is called, is given the authoritative control of the legal business of the city, and of the law department of the city government, as he virtually is by the ordinance, it gave over to one official not contemplated, by the statute the duties which the statute had devolved upon another. The city attorney is the head of a department of the city government. In the discharge of his official duties, he is independent of the mayor and council. Louisville v. Louisville Ry. Co., 111 Ky. 1, 63 S. W. 14, 23 Ky. Law Rep. 390, 98 Am. St. Rep. 387. He may be required to act not only contrary to their wishes, but against them officially. The Legislature by making a term for the office, and making it in a measure independent of the domination of the other departments of the city government, has attempted to provide a check in the matter of municipal government. If the city government as represented by the mayor and council may put all the principal duties of the city attorney upon another, whom they are at liberty to direct, or if he acts contrary to their wishes, whom they could dispose at will, by abolishing his office if not otherwise, the scheme provided by the Leg
The ordinance providing for the office of mayor’s counsel and putting upon him the duties now assigned by the statute to the city attorney was void. The offices of tax attorney, title attorney, law accountant, etc., are made dependent upon the direction, and are under the control of the mayor’s counsel. They must therefore fall also. As we have seen, to sustain it would be to deprive the statutory officer, the city attorney, of the responsibility and power to discharge his-official duties, by placing them in somebody else’s hands, as well as take the control from him. The ordinance is void as to the latter offices also.
The general council had the power to repeal the ordinances providing a law clerk and other similar assistants to the city attorney. Had the ordinance now under investigation gone no further than its first
Judgment reversed, and remanded, wth directions to overrule the demurrer to the petition.