City of Lexington v. Thompson
Citation | 113 Ky. 540,68 S.W. 477 |
Parties | CITY OF LEXINGTON v. THOMPSON. [1] |
Decision Date | 28 May 1902 |
Court | Court of Appeals of Kentucky |
Appeal from circuit court, Fayette county.
"To be officially reported."
Action by Ed Thompson against the city of Lexington to recover compensation for his services as a fireman. Judgment for plaintiff, and defendant appeals. Reversed.
W. S Bronston, for appellant.
Kinkead & Miller, for appellee.
DU RELLE, J.
By the fourth section of an act amending the act for the government of cities of the second class, approved March 15, 1900 (Acts 1900, p. 15), it was provided: "The said fire department shall consist of one chief, whose salary shall not be less than one hundred and fifty dollars per month; the engineer's, salary shall be eighty dollars per month; the electrician's salary shall be seventy dollars per month, and the ordinary fireman's salary shall be sixty-five dollars per month." The appellee, Thompson, brought suit against the appellant, the city of Lexington, a city of the second class, alleging that he was a resident of that city, and employed by it as an ordinary fireman, having been appointed by the board of police and fire commissioners; that prior to the passage of the act his salary as fireman was $50 per month, and by that act was increased to $65 per month; that he continued to serve as ordinary fireman up to July 22, 1901, when he resigned; that from time to time he made demand upon the city for the increase of salary provided for by the act at the rate of $15 per month, which was refused. His prayer was for judgment for the difference between the salary paid him and that fixed by the act during the period from March 15, 1900 to July 22, 1901, aggregating $243.75. A demurrer to the petition was filed and overruled. The city stood by its demurrer, and judgment was rendered against it. The ground of the demurrer is that the act is violative of the right of local self-government by the city in a matter over which the municipality has exclusive control in its private or corporate capacity, and that the act is therefore void.
For appellee it is contended that the act does not violate any provision of the constitution of the state, and therefore cannot be declared void because it is, or is supposed to be in violation of the spirit which may be supposed to pervade that instrument. Mr. Cooley is quoted in support of this proposition: Cooley, Const. Lim. (5th Ed.) pp. 202-204. Numerous other authorities are cited in support of the doctrine thus laid down, and among them the opinion of Chief Justice Robertson in Griswold v. Hepburn, 2 Duv. 24, where, after discussing the difference between the federal constitution as a grant of power and the state constitution as a written limitation upon the powers of the legislative organ of the people, it is said: These general principles may be freely conceded. It is also urged that, as said by the supreme court in U.S. v. Baltimore & O. R. Co., 17 Wall. 329, 21 L.Ed. 597, a municipal corporation is not only a representative of the state, These general statements of the legislative power over municipal affairs are always to be read in the light of the state of fact to which they are applied by the courts who give them utterance. Unless so read, they are apt, at times, to be misleading. In fact, the very authorities which thus state the general rule state also the limitations to be placed upon it. Speaking of the limitation upon legislative power, Judge Cooley says: Const. Lim. (5th Ed.) p. 203. So, Von Holst (Const. Law, 271), after stating the general rule that the legislative power of the state legislatures is unlimited so far as no limits are set to it by the federal or state constitution, proceeds: And in Mechem on Public Officers (section 123) it is said: "Indeed, this right of local self-government, as it has been briefly termed, is held to be an established feature and incident of our political system, and it is not within the power of the legislature of a state to permanently fill by appointment the local offices established by law for purely local purposes." See, also, Cincinnati, W. & Z. R. Co. v. Clinton Co. Com'rs, 1 Ohio St. 77. Said Mr. Edward Bates, in his argument in Hamilton v. St. Louis Co. Ct. (15 Mo. 13, cited with approval in Cooley, Const. Lim. [5th Ed.] p. 49), a constitution is And Mr. Webster said: "Written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former." A municipality is a state agency for governmental purposes. It exercises political governmental powers delegated by the state. As to such powers, and as to the duties which attach to their exercise in the administration of justice and the preservation of the public peace, it is imperium in imperio; a part of the governmental machinery of the commonwealth. Therefore its charter and legislative acts regulating the use of state property held by it do not constitute contracts within the meaning of the constitutional provision. Its political powers are not vested rights as against the state. As well said by Mr. McQuillin in a recent article upon the subject (34 Am. Law Rev. p. 506):
The conceded legislative control over the exercise of these governmental functions has furnished the subject of numerous adjudications. What constitutional limitations, either express or implied, existed upon the exercise of this legislative control it is not necessary, nor is it our purpose, in this case to determine. But a municipal corporation is not merely a public agency of the state. Its governmental functions are not all the functions which it possesses or exercises. It...
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