Allen v. Hollingsworth

• Decision Date: 17 January 1933
• Citation: 246 Ky. 812,56 S.W.2d 530
• Parties: ALLEN et al., for Use and Benefit of CITY OF MIDDLESBORO, KY., v. HOLLINGSWORTH et al.
• Court: Kentucky Court of Appeals

56 S.W.2d 530

246 Ky. 812

ALLEN et al., for Use and Benefit of CITY OF MIDDLESBORO, KY., v. HOLLINGSWORTH et al.

Court of Appeals of Kentucky

January 17, 1933

Appeal from Circuit Court, Bell County.

Taxpayer's suit by J. H. Allen and others, for the use and benefit of the City of Middlesboro, Ky. against Mont Hollingsworth and others. A demurrer to the petition was sustained, and the taxpayers appeal.

Reversed.

Martin T. Kelly, of Pineville, and Chas. E. Herd, of Middlesboro for appellants.

Wm Low, of Pineville, and J. E. Sampson, of Middlesboro, for appellees.

STANLEY C.

This is a taxpayers' suit to recover into the city treasury money alleged to have been illegally collected by the members of the board of commissioners of the city of Middlesboro. It presents a novel and important question with respect to the limitations on the power of the board of commissioners of cities of the third class, by reason of the referendum under which that method of government was adopted.

By a plebiscite held under the authority of the General Assembly expressed in section 3480b-1, et seq., of the Statutes, the citizens of Middlesboro in 1922 chose to become organized and to be governed under the charter of the commission plan of government. The form of the question submitted on the referendum to the electorate was that set out in section 3480b-3 of the Statutes, the material portion of which is as follows: "Are you in favor of the organization and government of the City of Middlesboro under the provisions of (the statute identified) and under which the members of the Board of Commissioners shall receive a salary of Nine Hundred Dollars ($900.00) per year?" This was in accordance with the petition calling for the submission as provided in section 3480b-11. The point is presented whether thereafter the salary of the members of the board of commissioners could be increased by an ordinance of that body.

The mayor is one of the three members of the board of commissioners. Section 3480b-12. On November 4, 1929, the board enacted an ordinance raising the salary of the mayor from $900 to $2,400 a year. However, in view of the limitations of section 3480b-11 of the Statutes, of a maximum salary of $2,200, the mayor was paid only that sum instead of the amount fixed by the ordinance. On November 24, 1929, it was ordained by the board of commissioners that the other two members "shall be allowed the sum of $25 each per month for clerical assistance to promote the work of their respective departments, said sum to be paid to said commissioners monthly as the salaries of said commissioners are paid." The amount stipulated in the ordinance was thereafter paid to them, and it is alleged that it was as a compensation for their own services. The amounts received by each in excess of $900 per annum are set out, and judgment asked against them therefor, as well as an injunction restraining further payment by the city treasurer. The court sustained a demurrer to the petition, and the taxpayers appeal.

The initiative and referendum scheme of government does not obtain in this state to the same extent it does in some others. This power of direct legislation by the people, however, has been given, or shall we say restored, in relation to several subjects other than that which allows a choice by the electorate of the respective classes of cities as between the councilmanic and the commission forms of government. The same choice is given counties as between the fiscal court and the commission plan. Section 1847, Statutes. Other things which must be or may be submitted to the vote of the people for adoption or rejection are: An act of the Legislature classifying property for taxation (section 171, Constitution); bond issues and taxes for their liquidation (section 157 Constitution, sections 1872, 1881a-1, 4307, etc., Statutes); the establishment of consolidated school districts and levying of a special tax (section 4426a, et seq., Statutes); removal of county seats (section 63, Constitution, and section 915, Statutes); special road tax levies (section 157a, Constitution, and section 4645m-1, Statutes); changing of county boundaries (section 63, Constitution, and section 919, Statutes); the purchase of public utilities (section 3480d-1, Statutes); the sale thereof (section 2741 l-21, Statutes); and for the establishment of municipal bands in certain cities (section 2741j-1, Statutes). There are some other questions of a special nature which may be submitted under current law, and our memories go back to the days of local option and the freeing of turnpikes.

When the will of the electorate has been expressed on these things, it must be given full force and effect. Most of the statutes referred to require action on the part of some official body to put them into effect, after an affirmative vote in favor of the proposition has been received, which is generally regarded as of a ministerial character. In recognition of the supremacy of the voice of the people, it has been held that those officers may be compelled to put the schemes or laws thus adopted into effect where they are not automatically operative. Thus it was held in Houston v. Boltz, 169 Ky. 640, 185 S.W. 76, that mandamus will lie to compel members of a fiscal court to perform their duty to issue bonds authorized at an election. But in the matter of changing the form of municipal or county government by local plebiscite, the General Assembly has already set up the machinery, and when the result has been established the law or charter becomes self-operating, according to its terms, and such government is automatically established. Bryan v. Voss, 143 Ky. 422, 136 S.W. 884; Jones v. Cassidy, Mayor, 154 Ky. 748, 159 S.W. 562.

Apart from restraints of the organic law, the Legislature has plenary powers in respect to the establishment and regulation of the government of municipalities, and such divisions of government possess only those powers that the state, through the Legislature, has conferred upon them, expressly or impliedly, and those granted powers may be enlarged or diminished in the discretion of the superior body, for the municipalities are derivative creations. Walker v. City of Richmond, 173 Ky. 26, 189 S.W. 1122, Ann. Cas. 1918E, 1084; City of Morganfield v. Wathen, 202 Ky. 641, 261 S.W. 12; Barrow v. Bradley, Mayor, 190 Ky. 480, 227 S.W. 1016. Doubt concerning the existence of a particular power will be resolved against its existence. Board of Education v. Scott, 189 Ky. 225, 224 S.W. 680. The systems of government conferred upon municipalities in this state has been through the enactment of charters for the six classes of municipalities into which cities and towns have been placed. In these charters, powers in respect to many things have been delegated to the legislative bodies of the cities. Bryan v. Voss, supra; Barrow v. Bradley, Mayor, supra; Jones v. Russell, 224 Ky. 390, 6 S.W.2d 460. But those charters are subject to the will of the Legislature. Boyd v. Chambers, 78 Ky. 140; City of Owensboro v. Board of Trustees, 210 Ky. 482, 276 S.W. 143. In the absence of any constitutional provision to the contrary, the state Legislature may confer the power of referendum on a municipality and prescribe the terms on which it may be exercised. 43 C.J. 584. The validity of the laws permitting the alternative choice of charters has been sustained by this court. Clarke v. Rogers & Company, 81 Ky. 43, 4 Ky. Law Rep. 929; Burnside v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276, 9 Ky. Law Rep. 635; Bryan v. Voss, supra.

In the charters of cities operating under this form, broad powers are delegated to the boards of commissioners, but even as the Legislature of the state is controlled by the Constitution, so too is the legislative body of a subdivision of government controlled by its charter. In these several charters we note different provisions in respect to the salaries of the commissioners. We turn first to others than that with which we are particularly concerned. In those governing counties containing cities of the first class the salaries are definitely fixed by the statute (section 1851b-7), while in other counties the matter of compensation within specified minimum and maximum amounts is left open (section 1847). There seems to be no alternative charter for cities of the first class; but the mayor's salary is fixed by the statute at $5,000 (section 2800). For cities of the second class the salary of the mayor is fixed at $4,000, and the other two commissioners at $3,600 (sections 3235c-10, 3235c-11), except where the city manager form of government has been adopted which is another alternative form allowed upon a referendum (Ky. St. Supp. 1930, § 3235dd-16), when salaries of all the commissioners are fixed at $1,500, but it is provided that the commissioners may reduce their salaries (section 3235dd-28). The matter of salaries is not submitted to the electorate in the referendum. For cities of the fourth class, the voters, in adopting the form of government, fix the salary for the first term of office under the act, but it is provided that thereafter the salaries may be changed and fixed within limits by the outgoing commissioners, provided it is done at least sixty days before the primary election for selecting nominees for the succeeding term (section 3606b-1 et seq.). In cities of the fifth and sixth classes, the salaries are to be fixed by the outgoing body within limits fixed by statute (section 2741f-1 et seq.).

The law governing the third class cities, with which we are presently concerned, is different from the others in the respect indicated. Except for the first term in cities of the fourth class, in none of the other statutes is the matter incorporated in the submission...