Meffert v. Brown

• Decision Date: 23 February 1909
• Citation: 116 S.W. 779,132 Ky. 201
• Parties: MEFFERT et al. v. BROWN et al.
• Court: Kentucky Court of Appeals

116 S.W. 779

132 Ky. 201

MEFFERT et al. v. BROWN et al.

Court of Appeals of Kentucky.

February 23, 1909

Lieber & Lincoln, for plaintiffs.

A. E Richards and Gibson, Marshall & Gibson, for defendants.

SETTLE C.J.

The plaintiffs, nine of whom are assistant license inspectors and three clerks of the board of commissioners of the sinking fund of the city of Louisville, all having been appointed to the offices or positions in question by the board of commissioners, obtained in this action, of the Jefferson circuit court, chancery branch, second division, a temporary injunction restraining the defendants, James B. Brown, David Baird, George T. Wood, James F. Grinstead, and William Heyburn, present commissioners of the sinking fund, from removing them from their several offices or positions. The case is now before me upon a motion made by the commissioners to dissolve the injunction. The commissioners are made a body corporate by section 3010, Ky. St. (Russell's St. § 873) with certain powers and duties therein prescribed. It is alleged in the petition that two of the five members composing the board oppose and will vote against the removal of plaintiffs from the offices or positions held by them respectively, two favor and will vote for their removal, and that the fifth and remaining member of the board likewise favors, and, if permitted to do so, will vote for their removal from office, but that he is not legally a member of the board of commissioners, and was not eligible to membership therein, at the time of his election.

The injunction was sought upon two grounds: First, because George T. Wood, one of the commissioners, being, as alleged, ineligible, and not having been legally elected or qualified as commissioner, has no authority to act as a member of the board; second, because, as further alleged, plaintiffs were elected by the commissioners for a term of one year, and cannot be removed before the expiration of that year. The alleged ineligibility of Wood is based upon the grounds that he was not, at the time of his election, a qualified voter of the city of Louisville, and that the territory including his residence had not legally been annexed to, and made a part of, the city, notwithstanding the ordinance enacted by the general council to that effect, and, as alleged, for the sole purpose of getting Wood within the corporate limits of the city that he might be elected a commissioner of the sinking fund. We think it wholly immaterial what the motive of the general council was in annexing to the city the territory including Wood's residence, if he was thereby rendered eligible to the office of commissioner to which he was later elected. The right to determine what territory shall or shall not be embraced in annexation ordinances is conferred by statute upon the general council of the city. It is true that persons whose homes or property lie within the territory sought to be annexed may, by proper proceedings instituted in the courts, resist such annexation upon the grounds prescribed by statute, in which case the question of whether they or their property shall be taken within the corporate boundary of the municipality becomes one for the adjudication of the courts. But where the necessity for the annexation has been determined by the general council of the city in conformity to the statute, and the annexation consummated without objection or resistance from the residents and property owners of the annexed territory, the validity thereof cannot subsequently be collaterally attacked. Chambers v. Baldwin, 91 Ky. 122, 15 S.W. 57, 11 L. R. A. 545, 34 Am. St. Rep. 165.

It is true as claimed by plaintiffs that Wood had not, at the time of his election as commissioner, resided in the city of Louisville three years, and that section 2746, Ky. St. (Russell's St. § 536), applicable to cities of the first class, provides: "No person shall be eligible to any office who is not at the time of his election a qualified voter of the city and who has not resided therein three years preceding his election." The fact, however, that Wood did reside for three years next before his election within the territory that was annexed to the city shortly before his election as commissioner would, it would seem, be sufficient to meet the requirements of the statute, supra. I quite agree with the court below that the opinion in the case of Gibson v. Wood, 105 Ky. 740, 49 S.W. 768, 43 L. R. A. 699, is conclusive of the question under consideration, as the following excerpt therefrom will show: "The city of Louisville has seen fit to incorporate the town of Enterprise, and make it a part of the city of Louisville. In my opinion when the city of Louisville annexed the town of Enterprise, it adopted the conditions then existing in the town of Enterprise, as to residence and citizenship, as a part of the city government, and former citizens of the town of Enterprise, who thus became citizens of the city of Louisville, were entitled to all their rights, as former citizens of Enterprise, in determining their eligibility to office in the city of Louisville. When the defendant and his territory became parts of the city of Louisville, they were entitled to all the benefits that belong to all other property and citizens of the city of Louisville. To hold otherwise would be to bring persons into the city of Louisville, and to burden them with city taxation and all the burdens of city government, without granting them all the privileges which It had granted to its other residents."

The fact that Wood did not register cannot affect the question of his eligibility to the office of commissioner of the sinking fund. The act of registering is only one step towards voting, and it is not one of the elements that makes the citizen a qualified voter. If at the time of his election as a commissioner of the sinking fund Wood had been a resident of the city three years and by registering before any election during that time would have been entitled to vote at such election, would his failure to register have destroyed his legal status as a qualified voter? Obviously not; the only legal effect of the failure to register would be to...