City of Newport v. Gugel

• Citation: 342 S.W.2d 517
• Parties: CITY OF NEWPORT, Kentucky, Appellant, v. George GUGEL, etc., et al., Appellees.
• Decision Date: 07 October 1960
• Court: United States State Supreme Court (Kentucky)

Page 517

342 S.W.2d 517

CITY OF NEWPORT, Kentucky, Appellant, v. George GUGEL, etc., et al., Appellees.

Court of Appeals of Kentucky.

Oct. 7, 1960.

Rehearing Denied Feb. 24, 1961.

Thomas D. Hirschfeld, Newport, for appellant.

Lester & Riedinger, Newport, for appellees.

CULLEN, Commissioner.

In an action against the chiefs of the police and fire departments of the City of Newport, individually and as representatives of the members of the departments, the city sought a declaration with respect to the validity of a certain ordinance adopted by the voters pursuant to the initiative procedure authorized by KRS 89.610 for cities operating under the city manager form of government. The circuit court declared the ordinance valid and enjoined the city to put it into effect. The city has appealed.

The ordinance in question fixed minimum salaries for police and fire department personnel; prescribed the minimum personnel for various classes of positions; regulated working hours, vacations and days off without pay; and provided for the filling of certain positions (including that of City Alcoholic Beverage Administrator) from personnel of the police department.

One of the major grounds asserted by the appellant city for holding the ordinance invalid is that the county court clerk caused to be printed upon the absentee ballots and upon the voting machine labels, above the formal statement of the proposition to be voted upon, the words 'Fair Pay Petition'. This was done without any authority or basis in the petition for the election.

The method of indicating public questions upon ballots is prescribed in KRS 118.170(3). This statute provides simply for stating the substance of the question, with two designated spaces on the right for 'Yes' and 'No' votes.

In Erwin v. Benton, 120 Ky. 536, 87 S.W. 291, where in a local option election the ballots carried a representation of the Bible over the 'Dry' column and of a female figure holding aloft a balance over the 'Wet' column, the court said (87 S.W. 296): '* * * There is no authority whatever for the use of a device or emblem upon the ballot submitting a public measure. * * * No device at all should have been used on the ballots. * * *' However the Court did not invalidate the election because no prejudice was shown.

Later, in Conley v. Hardwick, 141 Ky. 136, 132 S.W. 140, the Court held invalid a local option election where the 'Dry' column on the ballots was headed by a representation of the Bible and the 'Wet' column by a drawing of a whiskey bottle with a snake protruding from its mouth. The Court said (132 S.W. 141): * * * 'The ballot is a means devised by law to secure a fair expression of the will of the people, and it should never contain devices that give to one side an undue advantage over the other. It was highly improper to use any devices at all, and absolutely inexcusable to use the devices referred to or either of them. * * *'

While the words 'Fair Pay Petition' are mild and not calculated to arouse violent prejudices, nevertheless it is plain that they were put on the ballots and voting machine labels for propaganda purposes and with the thought that they would in fact influence some of the voters. We are in no position to say that the words did not accomplish the desired purpose. We have twice held that such devices are unauthorized, and we do not conceive that the courts should be required to speculate as to whether an unfair election resulted from such a plain violation of the statute.

Particularly in the case of initiative measures, where the proposition to be voted on is not proposed to the voters by a public deliberative body, should care be taken that no improper influences creep into the election procedures. It is our opinion that the use of the words 'Fair Pay Petition' on the ballots and voting machine labels was such an impropriety as to invalidate the election.

While we are holding the election invalid for the reason above stated, we are constrained to give attention also to the question of whether the measure here in question was such a one as comes within the scope of the initiative authority. In Rives v. City of Paducah, 287 Ky. 709, 155 S.W.2d 33, this Court held that a similar type of ordinance could be adopted by initiative procedures, and we adhered to the Rives case in City of Maysville v. Kenton, Ky., 252 S.W.2d 39. We are disposed now to reexamine the question.

It is the general rule that initiative provisions are applicable only to acts which are legislative in character, and not to those dealing with administrative or executive matters. Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336; Vanmeter v. City of Paris, Ky., 273 S.W.2d 49; 37 Am.Jur., Municipal Corporations, sec. 209, p. 845; 62 C.J.S. Municipal Corporations § 454 b, p. 873.

The rule that has been followed in this jurisdiction, for determining whether a particular matter is legislative or administrative, is that if the power to be exercised prescribes a new policy or plan it is legislative, whereas if it merely pursues a plan already adopted by the legislative body or some power superior thereto it is administrative. Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336; Vanmeter v. City of Paris, Ky., 273 S.W.2d 49. Another form of the rule is that an ordinance originating or enacting a permanent law or laying down a rule of...