Dietz v. Zimmer

• Decision Date: 19 November 1929
• Citation: 231 Ky. 546,21 S.W.2d 999
• Parties: DIETZ et al. v. ZIMMER et al.
• Court: Kentucky Court of Appeals

21 S.W.2d 999

231 Ky. 546

DIETZ et al. v. ZIMMER et al.

Court of Appeals of Kentucky

November 19, 1929

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Charles Dietz and another against Charles Zimmer and others. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Stephens L. Blakely and John T. Murphy, both of Covington, for appellants.

Sawyer A. Smith, Gregory W. Hughes, and Stanley Chrisman, all of Covington, for appellees.

WILLIS J.

Charles Dietz and Matt J. Crolley instituted this action under the Declaratory Judgment Act (Civil Code, §§ 639a-1 to 639a-12) for a declaration of law respecting the rights of Charles Zimmer, Sr., and three other defendants, to be candidates for certain offices in the city of Covington for which they had been chosen in the municipal primary election. Covington is a city of the second class, and operates under the commission form of government. Ky. St.§§ 3235c-1 to 3235c-29. The primary election was held on the third Saturday before the day for the regular election, as provided by section 3235c-6, Ky. St. Supp. 1928, and the highest number of votes was received by Charles Zimmer, Sr. for the office of safety commissioner, by Louis Meyer for the office of finance commissioner, and by Joseph F. Pieper for the office of public works commissioner. Only two applicants appeared for the office of public property commissioner, and they did not enter the primary, but were given certificates of nomination which entitled them to be placed on the ballot for the final election.

It is the claim of the plaintiff, who are proceeding as residents taxpayers, and electors of the city of Covington, that the three candidates named and one of the candidates for public property commissioner had disqualified themselves as candidates in the general election. The basis of the claim is threefold. The candidates mentioned made a public announcement to the effect that, if elected, they would delegate the duties of their respective offices to some other person not elected by the voters, but selected by themselves and donate five-sixths of their combined salaries to compensate the person so chosen to do the work which the law imposed on the elected officials. The statute fixed the salaries of the various commissioners at $3,600 each per annum (section 3235c-11, Ky. St. 1928), and the proposition to the public involved the donation of $12,000 of the compensation allowed by law to the commissioners to compensate a competent person to manage the governmental affairs of the city. It is claimed that the proposition was illegal in itself and constituted a violation of the Corrupt Practices Act. Section 1565b-3, Ky. St. It is further claimed that the plan contemplated a violation of section 3740, Ky St., which condemns the farming out, in whole or in part, of any office by any person holding or expecting to hold it, and disqualifies such person from holding the office. It is alleged also that various corporations of Covington, owning valuable property which it would be the duty of the city officers to assess for taxation, had contributed toward the election of the four defendants, which was a violation of the Corrupt Practices Act. Special and general demurrers to the petition as amended were filed. The circuit court sustained the general demurrer, and, when the plaintiffs declined to plead further, the action was dismissed. The plaintiffs prosecuted an appeal, and upon consideration thereof by the whole court an order of affirmance was entered on November 1, 1929, thus disposing of the case prior to the election. On account of the very short time at our disposal, it was necessary to defer the preparation of an opinion. Appellants insist that the conduct of the candidates during the contest in the municipal primary was a violation of the law, and rely upon Owsley v. Hill, 210 Ky. 285, 275 S.W. 797; Prentiss v. Dittmer, 93 Ohio St. 314, 112 N.E. 1021, L.R.A. 1917B, 191; State v. Purdy, 36 Wis. 213, 17 Am.Rep. 485; State ex rel. Bill v. Elting, 29 Kan. 397; Walker v. Taylor, 230 Ky. 689, 20 S.W.2d 727 decided October 1st, 1929; and other authorities. We intimate no opinion respecting the character, legality, or effect of the conduct or declarations of the defendants, as delineated by the pleadings. Decision of that question will have to be remitted to a proceeding appropriate for the purpose. Neither is it necessary at this time to indicate the remedy that may be available if the candidates were held to be guilty of a violation of the law. But see Dodge v. Johnson, 210 Ky. 843, 276 S.W. 984; Burns v....