Glass v. City of Hopkinsville

• Decision Date: 19 June 1928
• Citation: 9 S.W.2d 117,225 Ky. 428
• Parties: GLASS et al. v. CITY OF HOPKINSVILLE et al.
• Court: Kentucky Court of Appeals

9 S.W.2d 117

225 Ky. 428

GLASS et al. v. CITY OF HOPKINSVILLE et al.

Court of Appeals of Kentucky

June 19, 1928

Rehearing Denied Oct. 2, 1928.

Appeal from Circuit Court, Christian County.

Action between Ed Glass and others and the City of Hopkinsville and others. From the judgment, the former appeals. Reversed with directions.

W. H Southall, Hunter Wood, and S. T. Fruit, all of Hopkinsville for appellants.

W. O Soyars, Frank Rives, White & Clark, and Breathitt &amp Breathitt, all of Hopkinsville, for appellees.

WILLIS J.

This appeal involves the rights of rival claimants to five memberships on the board of education of the city of Hopkinsville, and the decision depends upon a determination of the authority to fill vacancies in the board when less than a quorum remains in office.

The five appellants claim the offices by virtue of appointment by the Governor, and insist that, under the circumstances that existed in this case, the power to fill vacancies is reposed by law in the chief executive of the state. Five of the individual appellees assert title to the same offices under appointments by the four remaining members of the board of education, participated in by the five members whose terms were expiring. The circuit court decided against the appointees of the Governor, and they appeal. The city of Hopkinsville is concerned only to have the matter settled that it may recognize, in the administration of the schools, the rightful incumbents of the offices.

The Constitution provides:

"Vacancies in all offices for the state at large, or for districts larger than a county, shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law." Section 152.

"The General Assembly shall prescribe the qualifications of all officers of towns and cities, the manner in, and causes for, which they may be removed from office, and how vacancies in such offices may be filled." Section 160.

Members of the board of education are state officers (Hoskins v. Ramsey, 197 Ky.

465, 247 S.W. 371; Whitt v. Wilson, 212 Ky. 281, 278 S.W. 609), but, as the district which they serve is not larger than a county, the case is governed by the provisions of section 152 of the Constitution that "all other appointments shall be made as may be prescribed by law." It is insisted on behalf of the appellees that the case is controlled by section 3463, Kentucky Statutes, which empowers the board of education "to fill until the next general election all vacancies in said board." It will be noted that the power is conferred upon the board of education and not upon its remaining members. Cf. Ky. Stat. § 4465, as amended by Act March 7, 1922, p. 35, c. 8. When a power is delegated to a board or body consisting of several members, it presupposes the presence of a quorum, as a condition to valid action, and the power may not be exerted effectively by a less number. 43 C.J. page 503; Hopkins v. Dickens, 188 Ky. 368, 222 S.W. 101; Short v. Langston, 125 Ky. 816, 102 S.W. 236; Scott v. Pendley, 114 Ky. 606, 71 S.W. 647; Pierce v. Sullivan, 189 Ky. 193, 224 S.W. 872.

In cities of the third class, to which Hopkinsville belongs, the board of education consists of nine members and a majority elect of said board constitutes a quorum for the transaction of business. Ky. Stat. § 3462. It is apparent, therefore, that five vacancies left the board without a legal quorum and disabled it from the transaction of any business.

It is urged, however, that the incumbents whose terms were expiring held over until the election and qualification of their successors, and enabled the board thus constituted to fill the vacancies. But we have held that officers, whose terms would expire before the vacancies occurred, could not make appointments to fill such vacancies. Terry v. Cornett, 136 Ky. 628, 124 S.W. 870; Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043; Shepherd v. Gambill (Ky.) 75 S.W. 223, 25 Ky. Law Rep. 333; Seiler v. O'Maley, 190 Ky. 190, 227 S.W. 141.

It follows that the five members whose terms were about to expire could not legally participate in the appointment of their own successors, which left the board without a quorum in the matter of filling prospective vacancies, and helpless to act on the subject.

Appellees present a theory that the "authority" to appoint members to fill vacancies is vested in the board of education, a corporation, which was then in being and would continue in being when the vacancies occurred, and when the appointments were to be made, which consideration is supposed to bring this case within the reasoning and strict letter of the authorities last cited. The theory is confounded by the fact that the board of education as a corporate entity cannot function with less than a quorum of its members and five of them whose terms were expiring were disqualified to vote on their own successors. The corporation can act only by its members, and, when a majority of them are disqualified on a given subject, the board itself is powerless to act thereon. But the appellees further argue that the four members remaining in office constituted all of the board of education legally in office, and as such had a right to carry on the business and fill the vacancies. This contention is predicated upon a definition of "majority elect of said board," as used in section 3462, Ky. Stats., as meaning a majority of those constituting the actual, as distinguished from the...