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

68 S.W. 477

113 Ky. 540

CITY OF LEXINGTON v. THOMPSON. ^[1]

Court of Appeals of Kentucky.

May 28, 1902

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: "If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative encroachment by the constitution. The principles of republican government are not a set of inflexible rules, vital and active in the constitution, though unexpressed, *** nor are courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the constitution but not expressed in words." 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: "But the same reason being inapplicable to state legislation of doubtful compatibility with a state constitution, proper deference to the legislative department should preponderate in favor of the constitutionality of its acts, and requires the judicial department to recognize them as laws, unless it shall be clearly satisfied that they are not. Whenever a jurist inquires whether a state statute is consistent with the state constitution, he looks into that constitution, not for a grant, but only for some limitation of the powers inherent in the people's legislative organ so far as not forbidden by their organic law." 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, "but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the state. The state may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the state at large. It may enlarge or contract its powers or destroy its existence." 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: "It does not follow, however, that in every case the courts, before they can set aside the law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed. Prohibitions are only important where they are in the nature of exceptions to the general grant or power; and, if the authority to do an act has not been granted by the sovereignty to its representatives, it cannot be necessary to prohibit its being done." 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: "This does not mean, however, that these restrictions must always be expressed in explicit words. As it is generally admitted that the factors of the federal government have 'certain implied powers,' so it has never been disputed that the state legislatures are subject to 'implied restrictions'; that is, restrictions which must be deduced from certain provisions of the federal or state constitutions, or that arise from the political nature of the Union, from the genius of American public institutions." 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 "not the beginning of a community, nor the origin of private rights. It is not the fountain of laws, nor the incipient state of government. It is not the cause, but consequence, of personal and political freedom. It grants no rights to the people, but is the creature of their power, the instrument of their convenience, designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made. It is but the form and framework of the political government, and necessarily based upon the preexisting condition of laws, rights, habits, and modes of thought. *** A written constitution is, in every instance, a limitation upon the powers of government in the hands of agents." 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): "It is thus manifest that in matters of public concern, such as relate to the performance of functions by the city as the agent of the state, the legislature is not limited to conferring a discretionary power, but may exercise authority where the local officers or agencies neglect or refuse to discharge their public duty in providing for the public needs of the locality, or in voting or levying the proper taxes for public purposes. As to duties which the people in the several localities owe to the state at large, they cannot be allowed a discretionary authority to perform them or not, as they may choose, for such authority would be wholly inconsistent with anything like regular and uniform government of the state."

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...