Baker v. Combs

• Decision Date: 21 March 1922
• Citation: 194 Ky. 260,239 S.W. 56
• Parties: BAKER, MAYOR, ET AL. v. COMBS.
• Court: Kentucky Court of Appeals

239 S.W. 56

194 Ky. 260

BAKER, MAYOR, ET AL. v. COMBS.

Court of Appeals of Kentucky.

March 21, 1922

Appeal from Circuit Court, Perry County.

Mandamus by R. C. Combs against Floyd H. Baker, Mayor, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Denny P. Smith, Wootton, Smith & Wootton, and Geo. E. Saufley, all of Hazard, for appellants.

W. A Stanfill, H. C. Faulkner, W. E. Faulkner, and S. M. Ward, all of Hazard, for appellee.

HURT C.J.

This appeal involves the soundness of the judgment of the trial court in determining who is entitled to the office of chief of police of Hazard for a term beginning on the first Monday of January, 1922. The appellee, who was the plaintiff below instituted this action against the mayor and members of the council of the town, and one Wooton, who was assuming to act as chief of police, averring that he (the appellee) had been duly elected to the office of chief of police by the voters of the town at the regular election at November, 1921, and that the mayor and council refused to allow him to qualify or to exercise the duties of the office, and refused to recognize him as the legal holder of such office, but instead thereof had appointed Wooton to the office, permitted him to qualify, and that he was now exercising the duties of the office and receiving its emoluments, but that his installation in the office was illegal, and he was thus a usurper. The plaintiff relied for his right to recover the office upon an alleged ordinance which was adopted by the council on August 4, 1919, providing that a chief of police be elected by the voters of the town at the regular election in 1919, for the term beginning on the first Monday of January, 1920, and that, in pursuance of such ordinance, he was duly elected to the office by the voters of the town at the November election, 1919, and duly qualified under such election, and filled the office during the years 1920 and 1921, and, in virtue of the ordinance, was re-elected at the November election, 1921. His prayer was for a writ of mandamus against the mayor and members of the council, requiring them to permit him to qualify under the latter election, and to recognize him as chief of police, and for a judgment ousting Wooton from the office, and enjoining him from interfering with its duties. The judgment granted to the appellee the relief sought, and the mayor and council and Wooton have appealed.

Section 160 of the Constitution, after certain provisions relating to the mayors, police judges, and members of legislative boards of towns, and prescribing the duration of their terms of office, contained the following provisions, viz:

"But other officers of towns and cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the General Assembly may, by a general law, provide; but when elected by the voters of a town or city, their terms of office shall be four years, and until their successors shall be qualified. * * * The General Assembly shall prescribe the qualifications of all officers or towns and cities, the manner in, and causes for, which they may be removed from office, and how vacancies in such offices may be filled."

The General Assembly, in providing by a general law for the appointment or election of a chief of police in a fourth-class town, to which class Hazard has been duly assigned, enacted the following statute, which is section 3504, Ky. Stats.:

"The board of council shall have power to appoint a chief of police, or he shall be elected by the voters of the city as may be prescribed by ordinance, enacted not less than sixty days previous to any November election, who shall hold his office for a term not longer than two years, or until his successor is appointed or elected and qualified, subject to the power of removal for good cause at any time by the board of council."

The above statute seems to empower the council to appoint a chief of police, or to change the method by authorizing the voters of the city to elect one by enacting an ordinance bestowing such authority at any time "not less" than 60 days previous to any November election, and on the 4th day of August, 1919, it is averred that the council in exercise of the authority delegated to it to provide by ordinance for the election by the voters of a chief of police, as provided by section 3504, supra, adopted the following ordinance:

"Ordinance.

Chief of Police of the City of Hazard.

The city council of the city of Hazard do ordain as follows: That the chief of police of the city of Hazard shall be elected by the qualified voters of the city of Hazard at the regular November election, 1919, and his compensation shall be fixed by the council."

On the date of August 14, 1919, as appears from the certificate of the city clerk, the following record of the proceedings of the council on that day is upon the minute book of the council:

"August 14, 1919.

The council met in regular session with Mayor W. M. Pursiful absent. Councilmen H. M. Baker, James Combs, Jerry McIntosh, A. G. Duff, and L. F. Brashear, present. Councilman W. M. Engle, absent. * * *

Three ordinances were introduced: That the city treasurer perform the duties of city collector; that the city treasurer be elected; that the city clerk be elected; that the chief of police be elected, all of which ordinances were considered and adopted, and the clerk was directed to spread the same upon the city ordinance book in full. * * *

On motion the meeting adjourned until Thursday, August 7, 1919.

L. F. Brashear, Mayor pro tem.

George E. Saufley, Clerk."

Under section 3504, supra, there could be no question of the power of the council, if exercised in the manner and time prescribed, to provide for the election of a chief of police in a fourth-class city, by the voters thereof, as the General Assembly may delegate to a city council the power to legislate about matters pertaining to the city, and about which the council is presumed to have the better knowledge; but it is insisted by the appellants, the mayor, members of the council, and Wooton, that the ordinance of the council of August 4, 1919, is invalid, and, if not invalid, that it only applied to the election for the term beginning on the first Monday of January, 1920, and for that reason did not authorize the election of appellee at the November election, 1921. The validity of the ordinance is assailed upon several technical grounds, among which are:

(1) It is not shown that this was the ordinance mentioned in the minutes of the proceedings of the council on August 4, 1919.

(2) The record proof fails to show that the ordinance was ever read, adopted, or approved.

(3) It was never signed by the mayor.

(4) The proceedings of the council were signed by Brashear as mayor pro tem., but it is not shown that he had any authority to act as such.

(a) Touching the first objection made to the validity of the ordinance, it will be observed that it is recorded in a book provided and kept by the council for a record of its ordinances, and, as provided by section 3488, Ky. Stats., is a public record, to be preserved and "entitled to full faith and credit as such." Section 3487, Ky. Stats., requires the clerk of the council, who is a public officer, immediately after an adjournment to cause to be published every ordinance adopted at the meeting, and to preserve a copy of the publication. The minutes of the proceeding show that the clerk was directed to spread the ordinance in question upon the book provided for that purpose. As spread upon that record, it is of even date with the meeting of the council, upon the same subject and of the same import as the ordinance shown by the minutes to have been adopted by the council upon that date, and purports to have been upon that date. There is no pretense that this ordinance was not duly published, or that a copy of the publication was not preserved by the clerk. Every public officer, in the absence of a showing to the contrary, is presumed to have done his duty. We think the ordinance is sufficiently identified and authenticated as the one mentioned in the minutes of the council as having been adopted upon that occasion.

(b) The appellants aver that the ordinance was never read, adopted, or approved by the council. These averments were denied by the appellee. The statute is silent upon the subject of reading an ordinance in full before its adoption, and does not require the minutes of the proceedings to show that such was done; but appellants rely upon an ordinance adopted by the council at some time or other which required every ordinance before its adoption to be read in full, and to receive the affirmative votes of a majority of the members present. The copy of this ordinance in the record does not show the date of its adoption, and hence it cannot be known whether or not it was in force on August 4, 1919, when the ordinance upon which appellant relies was adopted; but, be that as it may, it does not require that the fact that a proposed ordinance was read and received the affirmative votes of a majority of the members present be shown by the record in order to make it a valid ordinance. Section 3486, Ky. Stats., empowers the council to make and adopt rules to govern its proceedings, and, where such is the fact, it is doubtless true that rules adopted by it are as binding upon it as the statute. 19 R. C. L. 890; Montenegro-Riehm, etc., v. Board of Education, etc., 147 Ky. 720, 145 S.W. 740. The rule would be otherwise if adopted from the inherent authority of the council.

An ordinance such as the one providing for the election of a chief of police by the voters must be distinguished from such a one as that provided in ...