Blanks v. Toombs

• Decision Date: 12 February 1929
• Citation: 228 Ky. 15,14 S.W.2d 153
• Parties: BLANKS, Mayor, v. TOOMBS.
• Court: Kentucky Court of Appeals

14 S.W.2d 153

228 Ky. 15

BLANKS, Mayor, v. TOOMBS.

Court of Appeals of Kentucky

February 12, 1929

Appeal from Circuit Court, Hopkins County.

Action by B. K. Toombs against A. R. Blanks, Mayor of Madisonville. Judgment for plaintiff, and defendant appeals. Affirmed.

C. J Waddill, of Madisonville, for appellant.

Gordon & Gordon & Moore, of Madisonville, for appellee.

WILLIS J.

This is an ordinary action for a writ of mandamus to compel the mayor of Madisonville, a city of the fourth class, to approve a voucher for the April salary of the assistant city engineer. The mayor defended on the ground that the voucher was illegal and unauthorized.

Toombs asserted that he was appointed assistant city engineer reported at the proper time and place for the performance of his duty, and was prevented by the mayor from doing any work. The city council allowed the salary for the period in question, and the mayor refused to draw, sign, or countersign the requisite warrant to enable Toombs to get his pay. The mayor answered admitting that he refused to approve the appropriation, and justified his attitude by alleging that Toombs had not been elected or appointed assistant city engineer, had performed no duties for the city, and that the city council had no right or authority to give away the money of the city. The circuit court awarded a writ of mandamus and the mayor has prosecuted an appeal.

It is first insisted that Toombs was never elected or appointed to the position claimed by him, and was not entitled to any salary. The city council is authorized by the city charter to elect a city engineer (section 3558, Ky. Stats.) and to provide for his assistants (section 3559, Ky. Stats.). An ordinance was enacted providing for one assistant city engineer, to be appointed by the city council for a term of two years at a salary of $90 per month. At the regular meeting of the council on April 3, 1928, a member moved that "a committee be appointed to employ B. K. Toombs as Assistant Engineer for the term of two years at a salary of $90.00 per month beginning April 9th, 1928." The motion was seconded and received four favorable votes out of a total membership of six, and the ayes and nays were entered on the journal of the proceedings. It is said that the action taken did not amount to an appointment of Toombs, but provided merely for a committee, which was not appointed, and the authority to employ was left unexecuted. The majority members of the city council attempted to hold special meetings to effectuate the purposes of the preceding order of April 3d but, in view of our conclusions as to the effect of the action taken on April 3d, it is not necessary to discuss or determine the questions raised and argued by the appellant respecting the validity of the proceedings at the special meetings. The motion made on April 3d manifested a desire to select Toombs as the assistant engineer, and the intention of the city council to dispose of the matter was not left in doubt. It is not easy to perceive any function that was left to be performed by the committee, unless it was to notify the appointee and obtain his acceptance of the appointment. Toombs got notice of the appointment, accepted it, and reported for duty. He held himself in readiness to serve the city in accordance with the ordinance which defined his duties. The city council formally approved his course, ratified his previous appointment, and allowed his salary for the period beginning on April 9th and ending May 1st. In view of the rather determined efforts of the city council to put Toombs in the position, we find no difficulty in interpreting its minutes as adequate to express its will. The council could not delegate to a committee any discretionary duty in the matter (City of Harlan v. Coombs Land Co., 199 Ky. 87, 250 S.W. 501), and it is manifest that the intention of the majority was to select Toombs then and there, without the delay which had been...