Healy v. City of Covington

• Decision Date: 27 May 1947
• Citation: 304 Ky. 854
• Parties: Healy v. City of Covington et al.
• Court: United States State Supreme Court — District of Kentucky

304 Ky. 854

Healy v. City of Covington et al.

Court of Appeals of Kentucky.

May 27, 1947.

1. Municipal Corporations. — A city commissioner, elected mayor pro tem. by board of commissioners before mayor's resignation and subsequently reelected as commissioner, but not as mayor pro tem. because of deadlock resulting in governor's appointment of another commissioner as mayor pro tem., was not entitled to such office thereafter under statute providing that in case of mayor's resignation mayor pro tem. shall act as mayor until filling of vacancy by election ordered by board. KRS 89.520.

2. Officers. — De facto officers' official acts, performed in good faith, are made valid from motives of public policy to preserve third persons', and general public's rights.

3. Officers. — A de facto officer's acts will not be declared void in collateral proceeding.

4. Municipal Corporations. — Signature of city ordinance by city commissioner as mayor pro tem. in good faith and under color of title by virtue of his election to such office by board of commissioners before mayor's resignation was sufficient to validate ordinance, though he was not entitled to office after governor's appointment of another commissioner thereto because of commissioners' deadlock in attempt to elect mayor pro tem. after such resignation. KRS 89.520, 89.540.

Appeal from Kenton Circuit Court.

Stanley Chrisman and Joseph C. Healy for appellant.

John L. Cushing for appellees.

Before Joseph P. Goodenough and Rodney G. Bryson, Judges.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

On March 28, 1946, appellee Board passed an ordinance levying occupational taxes on persons, firms and corporations engaged in trade, business and professions, fixing amounts, time of payments and penalties for failure to pay. Sec. 103 levied a tax of $25 on each person engaged in the practice of law, an increase over that fixed by prior ordinance. Appellant, engaged in the practice of law, conceiving the ordinance to be invalid, a few days after the tax due date filed petition making the city, its commissioners, and other functional officers defendants.

The pleading alleged that the ordinance was signed at the time of final passage only by Robert F. Moore, "Mayor pro tem," and not by the Mayor or two commissioners as provided in part by KRS 89.540, "Each resolution, measure or ordinance shall be signed by the mayor or by two commissioners and recorded before it shall take effect." There is no charge that it was not recorded.

Appellant pleads that Moore was not Mayor pro tem at the time, therefore, the signing was not in conformity to the law, and stating proper grounds asked for prohibitive relief. The court overruled appellees' demurrer and they answered, first admitting all allegations of the petition, except such as were specifically denied. In a second paragraph the answer alleged that the city does not have, nor has it had, a Mayor since the resignation of Fitzpatrick; that sec. 89.520, KRS, provides that in such event the Mayor pro tem shall act as Mayor and perform his duties; that Moore, under the provisions of the statute supra, acting as Mayor pro tem, was a de facto officer, and that any duty imposed upon the Mayor by the statutes, "which was performed by him acting as Mayor pro tem constitutes a valid act of the city, and that the signing by Moore fully complied with KRS 89.540, and the same became effective at the time he affixed his signature."

It was further alleged that after the ordinance was attacked, another commissioner signed, thus making it valid and effective under the statute. Plaintiff demurred to paragraph 2 of the answer. The court overruled the demurrer, and there was no further pleading. On submission the court held the answer to have presented two "good defenses," and dismissed the petition.

The section of the statute relating to the election and functions of a commissioner acting as Mayor pro tem, sec. 89.520, KRS provides:

"(1) The board of commissioners shall, at the beginning of its term of office, by a majority vote, elect one commissioner as mayor pro tem.

"(2) During the temporary absence from the city or disability of the mayor, the mayor pro tem shall be vested with all the powers and perform all the duties of the mayor.

"(3) In case of the death, resignation or permanent disability of the mayor, the mayor pro tem shall act as mayor and receive his salary, under the official title of mayor pro tem, until the vacancy in the office of mayor is filled by an election ordered by the board of commissioners for that purpose. At that time, the mayor pro tem, if his term as commissioner has not yet expired, shall resume his duties as commissioner."

The chancellors found the questions presented for determination: (1) Was Moore a de facto Mayor pro tem when the ordinance was signed? (2) Did the later signing by another Commissioner constitute compliance with KRS 89.540? Both questions were answered in the affirmative.

It is unnecessary to incorporate fully here the situation and status of Moore and the...