Clarke v. Rogers & Co.

• Decision Date: 01 March 1883
• Citation: 4 Ky.L.Rptr. 929,81 Ky. 43
• Parties: Clarke, & c., v. Rogers, & c.
• Court: Kentucky Court of Appeals

81 Ky. 43

4 Ky.L.Rptr. 929

Clarke, & c., v. Rogers, & c.

Court of Appeals of Kentucky.

March 1, 1883

1. The general assembly cannot delegate its power to enact laws, but whether or not the law enacted shall become operative, may be made to depend upon the popular will.

2. The acceptance or rejection of a city charter may be made to depend upon the local majority.

3. Officers required to be elected by the constitution cannot be continued in office by legislative enactment without consulting the popular will, and but for the submission of the question to a popular vote, the provision of the charter of Flemingsburg continuing the trustees thereof in office until an election could be held under it for city officers would be open to constitutional objection.

4. The statute has provided for the means of contesting elections and where no provision has been made applicable to the particular case, the result, as certified by those holding the election, must determine the issue.

APPEAL FROM BOURBON CIRCUIT COURT.

M. M TEAGER AND W. J. HENDRICK FOR APPELLANTS.

1. The questions involved in this case have already been decided in the case of Moore, & c., v. McDowell, & c., MS. opinion May 25, 1882.

2. This court held in that case that the charter of Flemingsburg was legally adopted by a vote of the majority of the qualified voters of that town; and being adopted, the tax was properly imposed upon appellees.

ANDREWS & SUDDUTH FOR APPELLEES.

The act known as the new charter of Flemingsburg never went into effect--

1. Because the majority claimed was not sufficient.

2. Because there was not a majority cast in favor of its adoption.

3. The question as to the right of appellants to levy the tax is put in issue by appellees' reply, and appellants have failed by any proof whatever to show that they had taken the oath required by law. (9 Bush, 247; Acts 1879, vol. 2, p. 855; 16 Minn. 249; Sedgwick on Construction of Statutes, 2d ed., 533.)

OPINION

PRYOR JUDGE:

The appellees in this case were hotel-keepers in the town of Flemingsburg, claiming the privilege of selling liquors in quantities less than a quart. The board of councilmen of that town imposed a tax on this privilege of retailing liquors of $200, and the object of this proceeding is to enjoin its collection, on the ground that they were not officers of the town, and had no right to impose such a burden. The injunction was made perpetual, and of this the appellants complain.

Under the charter of the town prior to August, 1880, the trustees of the town were elected on the first Monday in August of each year, for the term of one year, and until their successors qualified.

The appellants, or some of them, were elected trustees on the first Monday in August, 1879, and others appointed to fill vacancies during the term, as authorized by the charter. Clarke was the town marshal. The tax under the old charter for the privilege of retailing liquors could not exceed fifty dollars.

It is alleged by the appellees that the term of office of the appellants expired on the first Monday in August, 1880, and that others had been elected trustees in accordance with the charter, and on the 23d of August had granted to them a license as hotel-keepers for the year, to end 23d of August, 1881, and that this tax had been paid, and that appellants, without right or authority of law, had not only imposed a tax of $200, but had authorized the town marshal to collect it.

The legislature, by an act passed on the 29th of April, 1880, created a new charter for the town of Flemingsburg, and submitted its provisions for acceptance or rejection to the qualified voters within the town boundary. If a majority of the qualified voters favored the charter at the election to be held on the first Monday in August, 1880, the new charter was to take effect on the 8th day of that month. The charter in nowise affected the citizens of the town or the town government until it was adopted by the popular vote.

The new charter also contained a provision that the trustees in office under the old charter were to continue in office as councilmen until the first Monday in January following, at which time, and in each year thereafter, councilmen were to be chosen by the popular vote.

The ordinance imposing the tax of $200 was passed on the 17th of September, 1880, more than one month after the new charter had been accepted, and when the appellants, as they insist, were properly in office, by reason of the provision of the charter creating them councilmen from the date of its acceptance, which was on the first Monday in August, 1880, until the regular election for councilmen could be held in the month of January following. The new charter fixed the maximum tax at $200; so if the appellants were in office, they had the right to impose it. The act, if ratified by the people, took effect on the 8th day of August, 1880, and therefore the trustees who claim to have been elected for another year, without regard to this new charter, had no power to grant the license on the 23d of September, 1880, as the appellants were then in office.

Section 37 of the new charter provides that " all acts or parts of acts which may come in conflict with any of the provisions of this act be, and are hereby, repealed; " but also provides that it shall not take effect until the 8th of August, eight days from its adoption. It is plain that the legislature did not intend to repeal the old charter until the ratification of the new charter by a popular vote; but it is equally certain that when the new charter was accepted it repealed the old charter, and those holding office under the old charter, or who were elected on the first Monday...