City of Williamsburg v. Weesner

• Decision Date: 20 May 1915
• Citation: 164 Ky. 769,176 S.W. 224
• Parties: CITY OF WILLIAMSBURG v. WEESNER ET AL.
• Court: Kentucky Court of Appeals

176 S.W. 224

164 Ky. 769

CITY OF WILLIAMSBURG v. WEESNER ET AL.

Court of Appeals of Kentucky.

May 20, 1915

Appeal from Circuit Court, Whitley County.

Suit by the City of Williamsburg against P. Weesner and others. From an order sustaining defendant's demurrer, plaintiff appeals. Demurrers overruled, and cause remanded.

Tye Siler & Gatliff and H. C. Gillis, City Atty., all of Williamsburg, for appellant.

W. R Henry and Stephens & Steely, all of Williamsburg, for appellees.

NUNN J.

This action was instituted in equity by the city of Williamsburg seeking to have an adjudication that each of the appellees Weesner, Mount, and Bradley, had, by their conduct and declarations, abandoned and forfeited his office as a member of the city council. The lower court sustained special and general demurrers to the petition, and the city appeals. The petition alleges that by act of the General Assembly it is a municipal corporation of the fifth class, and, as such, has power to sue and be sued. It is then alleged that at the municipal election in November, 1913, a mayor and a city council, consisting of six members, were duly elected for the term of two years from the first Monday in January, 1914, and that defendants were three of the councilmen so elected; that thereupon it became the duty of the defendants and each of them as members elect to meet on the first Monday in January, 1914, and take the oath of office, and, as such members, to attend the regular meetings of the city council once in each month thereafter (section 3633, Kentucky Statutes); that, by ordinance theretofore adopted, the second Monday in each month and Nelson Hall were the time and place for such meetings; that each of the defendants had failed to meet at the place named with the other members on the first Monday in January and qualify, and had neglected and refused to attend any meeting of the city council since his election, and had further failed and neglected to perform any duty of his office; that each has publicly declared his intention not to meet with the mayor and the other members of the council, or to perform any duty as a member of the council; that the failure, neglect, and refusal of the defendants has been at all times voluntary and intentional on their part, "and such nonuser of their office and official conduct and misbehavior by them has been of such continuance and under such circumstances as to clearly indicate an absolute relinquishment, abandonment, and forfeiture of their said office; that, by reason of all of which, each of said defendants has abandoned and forfeited his office as a member of the city council for this plaintiff, and is now estopped from hereafter asserting any claim to such office." The petition was signed by attorneys for the plaintiff--not city officials. It was subscribed and sworn to by the mayor, and was filed on the 3d day of November, 1914. It thus appears that for ten months the city was without any effective administration, and with no prospect of relief. On the first Monday in January, 1914, when the terms of the old councilmen expired, likewise expired the terms of the city marshal, attorney, clerk, treasurer, assessor, and street overseer, and such other officers as were appointed by the old council. London v. City of Franklin, 118 Ky. 105, 80 S.W. 514, 25 Ky. Law Rep. 2306. The mayor and the other three councilmen qualified and attended the meetings prescribed by law, but a quorum is necessary for the transaction of business and the election of officers. As many as four members of the council must attend to make a quorum. The mayor cannot be counted for that purpose; nor can he vote except in case of a tie. Bybee v. Smith, 61 S.W. 15, 22 Ky. Law Rep. 1684; City of Somerset v. Smith, 105 Ky. 678, 49 S.W. 456, 20 Ky. Law Rep. 1488; Shugars v. Hamilton, 122 Ky. 606, 92 S.W. 564, 29 Ky. Law Rep. 127.

Under these circumstances, the city has no means for levying or collecting taxes, there are no police officials to enforce order, and no one to look after the streets, sidewalks, and other public property or sanitary conditions. If the streets need repair, the city is without officials to attend to it. There is danger of injury to persons and property by reason of the failure of the municipality to keep in proper condition the streets and other property which the public has a right to use, and the city stands helpless in the face of these dangers and threatened liabilities.

It must be said, however, that there is reason to believe that the city is suffering from the lesser of two evils. This belief is justified by the excuse which appellees in their brief offer for their refusal to attend meetings of the council. They say they "felt like they were entitled to some consideration in the appointment of city officers," and that the other councilmen and mayor would not concede this. Confessedly, then, it was for lack of consideration or inadequate consideration that they refused to serve. That being the motive behind their office seeking, it follows that, embarrassing as is the city's predicament because of their failure to serve, the city would probably suffer more if they attempted to serve. But the fact that the city suffers less than it would otherwise does not palliate the wrong of these offending members. The city is entitled to relief from the present danger; in that way it makes sure that greater harm will not befall it.

Where the members of a city council have abandoned and forfeited their office, and that body is left without a quorum, and the machinery of the city government is brought to a standstill, and the city is without power to start it again so that it may perform the duties to the public which it has assumed, as well as those imposed by law, and it is apparent there is no adequate remedy at law, a court of equity will not withhold its aid.

"Equity will not suffer a wrong to be without a remedy. This maxim includes the whole theory of equity jurisdiction, that it affords relief wherever a right exists, and no adequate remedy at law is available." 16 Cyc. 133.

Taking the statements of the petition as true, it appears that appellees have forfeited and abandoned their offices. The facts set up are sufficient to constitute abandonment.

In 29 Cyc. 1404, it is said:

"Office may also be terminated by abandonment. Abandonment means failure to perform the duties of the office. * * * The determination of the question whether an officer has abandoned his office is dependent upon his overt acts, rather than upon his declared intentions. * * * It need not be determined judicially that an office has been abandoned in order that in a collateral proceeding the office be deemed to have been abandoned; and in subsequent proceedings, either to regain possession of the office or otherwise, one who has abandoned an office is estopped from

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