Petrey v. City of Hazard

• Decision Date: 12 May 1961
• Citation: 346 S.W.2d 534
• Parties: Paul H. PETREY, etc., et al., Appellants, v. CITY OF HAZARD, Kentucky, a Municipal Corporation, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 534

346 S.W.2d 534

Paul H. PETREY, etc., et al., Appellants, v. CITY OF HAZARD, Kentucky, a Municipal Corporation, Appellee.

Court of Appeals of Kentucky.

May 12, 1961.

Alva A. Hollon, Hazard, for appellants.

W. E. Faulkner, Hazard, for appellee.

PALMORE, Judge.

At an election held on November 3, 1959, the people of Hazard approved a $525,000 general obligation bond issue for the purpose of constructing sewer improvements and a sewage disposal plant. As required by Const. Sec. 157, two-thirds or more of those voting on the question assented.

At the same time four new city commissioners were elected pursuant to KRS 89.390 et seq. They proceeded to take office, and in January of 1960 the newly constituted board of commissioners enacted ordinances providing for the issue and sale of the voted bonds and increasing the ad valorem tax rate accordingly. Meanwhile, a suit had been filed on November 16, 1959, seeking to disqualify the four newly elected commissioners on the ground they had violated the Corrupt Practices Act by campaigning on the promise that they would turn their statutory salaries (except for $1 per year) back to the city.

On March 25, 1960, this court handed down an opinion holding that the four men in question had violated the Corrupt Practices Act, reversing the circuit court judgment to the contrary, and directing a new judgment declaring their election void. A petition for rehearing filed in due course was overruled on November 23, 1960. See Sparks v. Boggs, Ky.1960, 339 S.W.2d 480. Thereafter the Governor appointed the same four men to fill the resulting vacancies on the board, and another ordinance was enacted ratifying the ordinances theretofore adopted.

In this action by the city against a class representative testing the validity of the 1960 municipal proceedings it was contended that the ordinances violated Const. Secs. 157 and 158 and that all actions taken while the four commissioners heretofore mentioned were purporting to act as members of the board, both before and after the Governor's appointments, were invalid. The trial court held the ordinances valid.

The taxpayer does not argue the Secs. 157-158 questions in this court, and we assume his objections in that respect are abandoned.

With respect to the validity of the official actions taken by the board of commissioners during the pendency of the corrupt practices litigation the position taken by appellant is confuted by the very authorities on which he relies for support. The applicable principles are stated in 67 C.J.S. Officers Sec. 146, pp. 447-448, as follows:

'The acts of an officer de facto are as valid and effectual where they concern the public or the rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, especially where the existence of the office de jure cannot be challenged. The legality of the acts of such an officer cannot be collateraly attacked in a proceeding to which he is not a party. However, in a suit to which one exercising public office is a party, he cannot justify his acts on the grounds that he was a de facto officer. The rule cannot be invoked for the advantage of the officer...