Kluemper v. Zimmer

• Decision Date: 09 June 1931
• Citation: 41 S.W.2d 1111,240 Ky. 225
• Parties: KLUEMPER v. ZIMMER. BAILEY v. PIEPER.
• Court: Kentucky Court of Appeals

41 S.W.2d 1111

240 Ky. 225

KLUEMPER v. ZIMMER.

BAILEY v. PIEPER.

Court of Appeals of Kentucky

June 9, 1931

Rehearing Denied Oct. 13, 1931.

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

Election contests by Theodore Kluemper against Charles Zimmer, Sr. and by Thomas Bailey against Joseph Pieper. From a judgment dismissing the contests, contestants appeal.

Reversed with directions.

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

Sawyer A. Smith and Stanley Chrisman, both of Covington, for appellees.

WILLIS J.

Covington is a city of the second class operating under the commission form of government. Ky. Stats. § 3235c-1 et seq. At the city primary held October 19, 1929, Charles Zimmer, Sr., Lewis Meyer, Joseph Pieper, and Monroe Swindler were nominated for the four commissionerships. They were supported by an organization desiring and favoring the city manager form of government, and were widely advertised as the "City Manager Ticket." They were opposed by Theodore Kluemper Thomas Bailey, and two other gentlemen, who were nominated in the same primary. Ky. Stats. § 3235c-6. In the final election the four city manager candidates were awarded certificates of election. Theodore Kluemper instituted a contest against Charles Zimmer, Sr., and Thomas Bailey instituted a contest against Joseph Pieper. The contestants did not claim the offices themselves, but questioned the right of the contestees to take them because of violation of the Corrupt Practices Act, and upon other grounds not necessary now to be noticed. The circuit court dismissed the contests, and the contestants have prosecuted appeals. The cases have been prepared and tried together, involve similar questions, and will be disposed of in a single opinion.

It is first contended that the circuit court had no jurisdiction of the contest, upon the ground that the board of commissioners was the judge of the election and qualification of its members. The charter of cities of the second class, adopted in 1894, provides: "Each board shall adopt rules for its proceedings, determine the election and qualification of its members, except as hereinafter provided, punish its members for contempt or disorderly conduct, and, two-thirds of the members concurring, may expel a member, but not twice for the same offense." Section 3043, Ky. Stats. The statute applied to the general council of the city, consisting of a board of aldermen and a board of councilmen. That section, as well as similar ones in other charters, has been held not to apply if the contest involved the title of so many members of the board of council or aldermen as to destroy a quorum. In such cases any contest must be instituted in the circuit court. Section 1596a-12; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248, 31 Ky. Law Rep. 335; Lilly v. O'Brien, 224 Ky. 474, 6 S.W.2d 715; Craft v. Davidson, 189 Ky. 378, 224 S.W. 1082; Ratliff v. Tackett, 209 Ky. 588, 273 S.W. 441. The statute never applies to the board in office at the time the election is held, but authorizes each board elected to determine the election and qualification of its own members. No legislative board may try the title of the members elected to the succeeding board. Stack v. Com., 118 Ky. 481, 81 S.W. 917, 26 Ky. Law Rep. 343. It is suggested that the grounds of contest asserted in this case disqualified the other two members elected as commissioners, although their offices were not actually in contest, since they were elected on the same ticket upon the very issue that furnished the alleged disqualification, and were affected by the same grounds of challenge. In view of the conclusion we have reached, that question need not be discussed or decided.

The statute creating the commission form of government for cities of the second class, passed in 1910, provides: "All laws applicable to and governing cities of the second class and not inconsistent with the provisions of this act shall continue to apply to and govern each city that may organize under this act. And all by-laws, ordinances, and resolutions in force in any such city and not inconsistent with the provisions of this act shall continue to be in force until altered or repealed in manner provided for in this act." Section 3235c-2. "The mayor and the four commissioners shall constitute a board of commissioners. In this board of commissioners shall be vested all the legislative, executive and administrative power of the city, save as herein otherwise provided." Section 3235c-12. In defining the powers of the board of commissioners, no reference is made to the matter of determining the election and qualification of its members. Careful study of the statute convinces us that the provisions of section 3043, Ky. Stats., applicable to the general council, were not intended to be operative upon the board of commissioners under the commission form of government. The provision affected the internal organization and government of the councilmanic and aldermanic boards, and it did not constitute a law to govern the city, within the purview of section 3235c-2. In the absence of a clear intention to incorporate into the commission form of government the internal regulations for the organization and government of the legislative boards under the other form, it cannot be held that they were included in an adoption of general laws for the government of the city. If it had been intended to make such provisions apply in the new situation, such purpose would have been plainly expressed, and not left to be derived from terms so uncertain and ambiguous. Numerous contests of this type have been determined by the court without mentioning the matter now advanced. Whitney v. Skinner, 194 Ky. 804, 241 S.W. 350; Lilly v. O'Brien, 224 Ky. 474, 6 S.W.2d 715; Burns v. Lackey, 171 Ky. 21, 186 S.W. 909. Van Meter v. Burns, 176 Ky. 153, 195 S.W. 470. In Martin v. Eagle, 236 Ky. 267, 32 S.W.2d 1020, the point was suggested, but the title of each of the commissioners was contested, and they were not, in any event, qualified to try the contests. Hence it was not necessary to determine the question now presented. The careful enumeration of duties and powers and the meticulous provisions for the organization of the board, without express reference to the subject of determining the election and qualifications of the members, is wholly inconsistent with the assumption that it was designed to confer such authority upon the board of commissioners. Moreover, such an important power should be clearly conferred by statute, and not left to mere doubtful inference. We conclude that the court had jurisdiction of the contest and are thus brought directly to a consideration of the merits.

The appellants had a right to contest the eligibility of their opponents, although not claiming themselves to be elected to the offices. Grinstead v. Scott, 82 Ky. 88; Potter v. Campbell, 155 Ky. 784, 160 S.W. 763; Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753; Hardin v. Horn, 184 Ky. 548, 212 S.W. 573; Whitney v. Skinner, 194 Ky. 804, 241 S.W. 350; Morgan v. Revis, 215 Ky. 30, 284 S.W. 111; Combs v. Dixon, 215 Ky. 566; 286 S.W. 797. Certain taxpayers instituted an action under the Declaratory Judgment Act to declare Zimmer and other candidates associated with him disqualified, but it was held that such a question could not be raised or determined in that manner. Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999. But the question is presented by a contest, and, if Zimmer and Pieper were disqualified to hold the offices by reason of what they did and knowingly permitted to be done for them by others in the primary and election, they may be deprived of the election. Ky. Stats. § 1565b-11; Owsley v. Hill, 210 Ky. 285, 275 S.W. 797; McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, L.R.A. 1918E, 581; Tackett v. Mayo, 211 Ky. 30, 276 S.W. 974.

In regular political primary elections, where a contest of the result is authorized by law, violations of the Corrupt Practice Act (Ky. St.§ 1565b-1 et seq.) in the primary must be presented in a contest of the nomination, and not otherwise. Hardin v. Horn, 184 Ky. 548, 212 S.W. 573. But no contest of a nomination for city commissioner under section 3235c-6 is allowed by law (Dodge v. Johnson, 210 Ky. 843, 276 S.W. 984), and a contest of a final election of such officer upon the ground that the successful candidate had violated the law in procuring his election involves an inquiry into the means and methods employed by him to secure the election, including his preliminary nomination.

The city manager form of government was made optional with cities of the second class by chapter 79 of the Act of 1928. But an identical statute (chapter 84, Acts of 1928) relating to third-class cities was held unconstitutional. City of Owensboro v. Hazel, 229 Ky. 752, 17 S.W.2d 1031. The reasoning of the opinion in that case applied with equal force to the statute concerning cities of the second class. Hence, when the election was held in Covington on November 5 1929, there was no law authorizing the city manager form of government in such cities. An act to meet that situation was subsequently passed. Acts of 1930, c. 91, p. 310. The editor of a newspaper in Covington conceived the idea of changing the form of government in Covington without waiting for the enactment of a law, by getting four candidates for commissioners who would agree to elect a city manager and pay him out of their official salaries. Each commissioner is allowed by statute an annual salary of $3,600. Section 3235c-11. It was thought that a competent expert could be obtained for a salary of $12,000 per year, who would not be affected by the salary limitation provided by the Constitution. Section 246. ...