Todd v. Dunlap

• Decision Date: 13 June 1896
• Citation: 99 Ky. 449,36 S.W. 541
• Parties: TODD, Mayor, et al. v. DUNLAP et al. SAME v. TILFORD et al.
• Court: Kentucky Court of Appeals

36 S.W. 541

99 Ky. 449

TODD, Mayor, et al. v. DUNLAP et al.

SAME v. TILFORD et al.

Court of Appeals of Kentucky.

June 13, 1896

Appeal from circuit court, Jefferson county.

"To be officially reported."

Two actions,-one in the law and equity division, by John S Dunlap and other members of the board of public safety of said city, against G. D. Todd, mayor of Louisville, and others; the other in the common pleas division, by one Tilford and others, members of the board of public works, to enjoin defendants from removing complainants from office. Judgments were entered for complainants, and defendants appeal. Affirmed.

Du Relle, J., dissenting.

H. S Barker, John Marshall, D. W. Fairleigh, and Barnett, Miller &amp Barnett, for appellants.

Pirtle & Trabue and Humphrey & Davie, for appellees.

PRYOR C.J.

The board of public safety and the board of public works executive boards of the government of the city of Louisville, instituted these actions in equity in the court below, in which it is alleged the mayor and board of aldermen were about to remove the members constituting the two boards from office without cause, and the sole question in each case is, has the mayor the power, with the approval of the board of aldermen, to remove these officials without notice and trial, and without assigning any cause for their action? The judge of the law and equity court decided the one case, and the judge of the common pleas court the other, each holding the mayor had no such power. These executive boards, composed of three members each, are appointed by the mayor, with the approval of the aldermen, for a term of four years, with a salary each of not less than $2,500. The board of public works are invested with the control of all the public ways of the city, the construction of streets and their reconstruction, the supervision of the public buildings, the lighting of public places, with the power of contracting with reference to such matters, and in fact with powers unlimited in this regard, subject to the supervision of the mayor, and when not in conflict with the organic law of the city. To the board of public safety is given the exclusive control, under the ordinances of the council, of the fire department, the police department, the health department, the department of buildings, of all the charitable, reformatory, and penal institutions of the city, with many other powers given by statute, investing the two boards with the execution and control of nearly all the departments of the city government, and to carry into effect the legislation of the municipality. They are the creatures of the legislature, and their term of office, as is contended, may be extended at the legislative will. They have neither a freehold in their office nor a vested right that places their official existence beyond legislative control, yet they are officers of the city, with a responsibility and duty resting upon them that renders their position as important as any other in the conduct of the municipal government. Section 160 of the state constitution is as follows: "The mayor or chief executive, police judges, members of city councils of towns and cities, shall be elected by the qualified voters thereof, provided the mayor of chief executive, and police judges of towns of the fourth, fifth and sixth classes may be appointed or elected as provided by law. The terms of office of mayor or chief executive or police judges shall be four years, and until their successors be qualified and of members of legislative boards two years. When any city of the first or second class is divided into wards or districts, members of legislative boards shall be elected at large by the qualified voters of said city, but so selected that an equal proportion thereof, shall reside in each of said wards or districts, but when in any city of the first, second or third class, where there are two legislative boards, the less numerous shall be selected from, and elected by the voters at large of said city, but officers of towns and cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the general assembly may by a general law provide, but when elected by the voters of a town or city their terms of office shall be four years, and until their successors shall be qualified. No mayor or chief executive or fiscal officer of any city of the first class, after the expiration of the term of office to which he has been elected under this constitution, shall be eligible for the succeeding term; fiscal officers shall not include auditor or assessor, or any other officer whose duty is not the collection of, or holding of public monies. The general assembly shall prescribe the qualifications of all officers of towns and cities, the manner in and cause for which they may be removed from office, and how vacancies in such offices shall be filled." It is claimed by counsel for the two boards that under this provision of the constitution the legislature must prescribe the manner in and cause for which city officials may be removed, and, the legislature having failed to comply with the constitution in this regard, the common-law rule must prevail, and the party sought to be removed is therefore entitled to notice of the charges against him, and to a hearing in his defense; and by the appellant, the mayor, it is insisted, this provision of the constitution does not embrace or affect any officer of a town or city except those specially mentioned in that section, and its operation confined to the officers therein named. It must be readily seen by a casual reading of this section that many of the most important offices connected with a city government, and indispensable to its existence, are omitted to be mentioned in the section of the constitution referred to, and the creation of such offices confided by that instrument to the wisdom of the legislative branch of the government, with the duty of prescribing their qualifications, and the cause or causes for which they may be removed. The mayor, police judges, and members of legislative councils of cities of the first, second, and third classes must be elected by the people, and like officers of towns and cities of inferior classes may be appointed or elected as provided by law; and the same section, after defining the mode in which these constitutional officers are to be chosen, and knowing that other officers must of necessity be created, further provided: "But other officers of towns or cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the general assembly may by a general law provide, but when elected by the voters *** their term of office shall be four years, and until their successors are qualified," and concluding the section by vesting in the legislature the power to prescribe the qualifications of all officers of towns and cities, the manner in and cause for which they may be removed from office, the provision evidently applying to all offices of towns and cities, whether created by the constitution or the legislature; and in carrying into effect this provision of the constitution in regard to removal from office the general assembly enacted under the title of "Municipal Corporations" the following section (2781): "Executive and ministerial officers, unless otherwise provided in this act, shall be removable by the board of aldermen, sitting as a court, under oath or affirmation, upon charges preferred by the board of councilmen. No person so charged shall be removed from office without the concurrence of two thirds of the aldermen, and when a person has been so removed from office, he shall be ineligible thereto during the term for which he had been elected." This provision of the statute is sufficiently comprehensive to embrace every city officer, and, although the charges for which the removal may be made are not specified, they must be such as constitutes misfeasance or malfeasance in office, or that character of charge that renders the officer unfit for the position. The contention of the appellant is that by a subsequent section of the statute on municipal corporations the manner of removing the members of these two boards has been otherwise provided by law. That section reads: "He [the mayor] may, by a written order, giving his reasons therefor, remove from office any head of department, director, or other officer appointed by him. A copy of said order shall be sent to the board of aldermen at its next meeting-unless such order be disapproved by the board of aldermen within thirty days said order shall stand." St. Ky. § 2794. These officials having been appointed by the mayor, it is urged in his behalf that any reason satisfactory to himself, and approved by the board of aldermen, is a compliance with the statute, and that no limitation on this power of removal exists when applied to those officers holding under his appointment, and, however competent and faithful they may be in the discharge of their duties, their positions are held at the mere will of the chief executive. Counsel for the appellees maintain they are not heads of departments, or such appointees of the mayor as are embraced by section 2794; that they are placed on a level with the mayor in regard to executive duties, and, while they are subordinate in some particulars to the mayor, their executive powers are greater than his. While conceding the force of the argument, we are disposed to determine this issue on other grounds, and for the purposes of this case will assume they come within its provisions.

The case of South v. Sinking Fund Com'rs, reported in 86 Ky 186, 5 S.W. 567, is relied on as sustaining the power of the mayor in the present case. In that case it will be...