City of Lexington v. Thompson

• Decision Date: 23 June 1933
• Citation: 250 Ky. 96
• Parties: City of Lexington v. Thompson et al.
• Court: United States State Supreme Court — District of Kentucky

250 Ky. 96

City of Lexington v. Thompson et al.

Court of Appeals of Kentucky.

Decided June 23, 1933.

1. Officers. — Essential characteristic of "office" rendering incumbent "officer," is that position must emanate from sovereignty and involve exercise of sovereign governmental duties on incumbent's initiative, without limitation or direction except as found in law creating position.

Public service position in order to be an "office" and make incumbent an "officer" must be created by the Constitution or Legislature or by ordinance, must contain delegation of portion of government's sovereign power to be exercised by the

incumbent for the benefit of the public, and the powers and duties must be defined by the authorities creating the position and be performed by the incumbent independently, except for functions of deputy officer, and position must also have some permanency and continuity.

2. Municipal Corporations. — Position of city manager held "public office" within constitutional limitation on salary, and therefore statutory provision that city manager was not an officer was void, and ordinance fixing salary was unenforceable over constitutional limitation (Constitution, sec. 246; Ky. Stats. Supp. 1933, secs. 3235dd-32, 3235dd-33, 3235dd-35).

3. Municipal Corporations. — Constitutional provision limiting compensation of public officers held applicable to municipal officers (Constitution, sec. 246).

4. Constitutional Law. — Words employed in Constitution should be given meaning which they possess when written therein.

5. Constitutional Law. — Meaning of words used in Constitution becomes part thereof as if expressly stated therein.

Appeal from Fayette Circuit Court.

J. PELHAM JOHNSTON, CLINTON HARBISON, RICHARD C. STOLL and ROBERT H. WINN for appellant.

GROVER C. THOMPSON, LON ROGERS and LEER BUCKLEY for appellees.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The appellant and defendant below, city of Lexington, is a municipality of the second class. Chapter 91, p. 310, of the Acts of 1930, now sections 3235dd-16 to and including 3235dd-52 of the 1933 Supplement to Carroll's Kentucky Statutes, is an amendment to charters of cities of the second class in this commonwealth (or a supplement thereto) by which that class of cities is authorized and empowered to adopt and put into execution a "City Manager form of government," for which the act provides, and it prescribes the duties of the city manager as well as his qualifications and the method of his choosing, which is by election by the city board of commissioners where that form of government has been adopted, or by the city council where the commissioner form of government has not been adopted. Pursuant to that authority, after following the methods prescribed in the act, the city of Lexington adopted the city manager form of government provided by it, and its commissioners then enacted what is designated in this record as Ordinance No. 2, whereby the present incumbent, Paul Morton, was elected to the place, and his salary was fixed at $10,000 per annum.

This action was later brought by appellees and plaintiffs below, as citizens and taxpayers within the city, for themselves and others similarly situated, against the city, its board of commissioners, and the city manager, as defendants below, seeking to have the court declare the statute, and the ordinance enacted pursuant thereto, void and unconstitutional in so far as they conflicted with the provisions of section 246 of our Constitution, expressly limiting the compensation of all "public officers," except the Governor, to the sum of $5,000 per annum. It is contended by plaintiffs, and was so expressly alleged by them, that the city manager of the city of Lexington was and is an officer, notwithstanding the statute, supra, creating the position and making provisions for filling it, expressly enacted to the contrary in its section 17, now section 3235dd-32, saying that he "shall not be an officer or official of the city but the executive agent of the mayor and board of commissioners in the management of city affairs"; and, notwithstanding the statute expressly enacted in the following section 18 of the act (section 3235dd-33 of the Supplement to the Statutes) that the choice of a city manager shall not be limited to inhabitants of the city or state and that he "shall be employed for an indefinite period."

Defendants' demurrer filed to the petition was overruled, whereupon they answered and denied the interpretations of the constitutional provision and of the statute, as averred in plaintiffs' pleading, and in a second paragraph it eulogized (perhaps correctly so) the efficiency of the city manager form of municipal government over the former Bi-cameral form theretofore prevailing, and alleged that the Legislature in enacting the statute was justifiably moved to do so in order to enable such cities to reap the superior advantages portrayed, and that in doing so no constitutional provision was violated. The demurrer of plaintiffs filed to the answer was sustained, and upon defendants declining to plead further judgment was rendered sustaining the prayer of the petition and enjoining defendants from paying Mr. Morton, as city manager, a salary exceeding $5,000 per annum, and complaining of that judgment, defendants prosecute this appeal.

It will at once be seen that the decisive questions in the case are: (a) Whether the position of city manager created by the statute is or is not a public office, and if that question should be answered in the affirmative, then (b) does the constitutional provision apply to municipal officers? Other collateral and incidental questions of more or less pertinency to a correct answer of the two designated ones will receive consideration and be disposed of as the opinion proceeds.

The correct answer to question (a) is difficult to frame so as to clearly indicate the line separating the position embraced by the term "office" and so as to classify its incumbent as an officer, and a position wherein the incumbent is commonly known and understood as a mere agent or employee. Notwithstanding that difficulty, most any citizen of fair education and average intelligence, whether a member of the legal profession or a layman, can determine the proper classification in a given state of facts, and especially so where the controlling differentiating ones are not so intermingled as to dim and obscure the line of demarcation. Their ability to do so arises from the fact that the words "office" and "officer," as well as the words "agent" and "employee," have now, and did have at the time of the adoption of our Constitution, and long prior thereto, definite and well-understood meanings which were comprehensible to the average mind; but, nevertheless, difficult to precisely define in a manner to always make visible the line separating the one class from the other. Law-writers and courts in defining that position known in the law as an "office," and its incumbent as an "officer," have suggested some incidents which are usually found as attaching to the position, but the presence of some of which it is universally declared are nonessential, although they are usually incident to the position of an office or to an incumbent as an officer. The Supreme Court of Montana in the case of State ex rel. v. Hawkins, 79 Mont. 506, 257 P. 411, 418, 53 A.L.R. 583, had the question before it and it wrote a most exhaustive and researchful opinion in which cases from many of the courts of the several states are referred to, as well as the definition given by recognized text writers, and from all of which it deduced the definition it gave of an "office" or an "officer," and which comprehended the essentials as well as referred to the nonessential ones, but which latter are usual signs or indicia attendant upon and attached to such public offices. Its definition was and is: "After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority."

Similar definitions, as given by other courts, are contained in that opinion; but we cannot devote either the time or the space to insert them, or even the cases in which they were pronounced, but refer the reader to that opinion for such information. It will be perceived, and which we are convinced is true, that a public service position, in order to be an office so as to make its incumbent an officer, must be created by the Constitution, or the Legislature or a municipality under authority conferred by the Legislature. It must possess or contain a delegation of a portion of the sovereign power of government to be exercised by the incumbent for the benefit of the public, and the powers and duties must be defined by the authority creating the position, and must be performed by the incumbent independently and without control of any superior public...