Wendt v. Berry

• Decision Date: 20 June 1913
• Citation: 157 S.W. 1115,154 Ky. 586
• Parties: WENDT v. BERRY.
• Court: Kentucky Court of Appeals

157 S.W. 1115

154 Ky. 586

WENDT v. BERRY.

Court of Appeals of Kentucky.

June 20, 1913

Appeal from Circuit Court, Campbell County.

Action by Louis H. Wendt against Shaler Berry, trustee. From a judgment of dismissal, plaintiff appeals. Reversed, with directions.

Wm. U Warren, of Newport, for appellant.

Bailey & Veith and Brent Spence, all of Newport, for appellee.

CARROLL J.

In 1888 the Legislature of the state created the district of Clifton in Campbell county, and established therein a form of municipal government very similar to the form of government of the cities of the state, although the district was not in fact either a city or a town. The district thus established and governed continued in existence until 1910, when by an act of the Legislature it was converted into a city of the fifth class under the name of the city of Clifton. After the enactment of this legislation, a city government was duly and regularly organized and the affairs of the city administered in conformity to the laws governing cities of the fifth class, and this government was continued until 1912, when the act of the Legislature converting the district of Clifton into a city of the fifth class was held unconstitutional by this court in Hurley v. Motz, 151 Ky. 451, 152 S.W 248.

Shortly after the opinion in this case was handed down, the government of the district of Clifton was re-established, and the affairs of the district have since been administered as they were before the district was converted into a city. Some time after the establishment of the city government pursuant to the legislative act of 1910, certain original street construction was ordered to be made by the city council and completed in the manner provided in the laws governing fifth class cities; but before the council had opportunity to accept the work the act establishing the city had been declared invalid. When the district of Clifton was re-established, the appellant contractor, who did some of the work of construction, applied to the governing authorities of the district to accept and approve it, and the work was accepted and approved in the manner pointed out in the act creating the district, and thereupon he brought this suit to enforce a lien for the cost of the construction on property owned by the appellee. A general demurrer was sustained to the petition of the contractor as amended, and, declining to plead further, the suit was dismissed and this appeal prosecuted.

The appellee resists the enforcement of a lien upon his property and the recovery of the amount due for the construction, upon the single ground that all of the ordinances and contracts in relation thereto, made and entered into by the governing authorities of the city of Clifton, were without force or effect because the act under which the city was set up was void from the beginning, and therefore all ordinances contracts, and other things made and done by the persons exercising the powers of officers of the city during the time the city government was administered under the legislative act were a nullity, and did not confer any right or create any liability. In opposition to this view, it is urged on behalf of the appellant contractor that the persons who composed the municipal government of the city of Clifton, while it was assuming to be a city of the fifth class, were de facto officers, and the appellee, who received the benefit of contracts made by these de facto officers, should not be allowed to escape the payment of the sum due for the improvements with which his property is charged.

Putting aside the argument that the improvements with which appellee's property is charged were made with his consent and by his request, and he is therefore estopped to deny his liability, and the further argument that, as the improvements made during the supposed existence of the city government were adopted by the district government after its re-establishment, this adoption and acceptance had the same effect as if the improvements had been ordered by the district government and had been completed and accepted under its management, it will be seen that the issue in the case, although an important one, may be put in few words and thus stated: Where a city government is organized under an unconstitutional act, can persons who, during the existence of the city government so organized, received benefits therefrom, defeat the payment of the amount due the contractor for the benefits upon the sole ground that the city government was a void thing from the beginning, and the persons acting as its officers were without authority to create any enforceable demands, growing out of contracts entered into by and with them at a time when the officers of the city, the contractor, and the property owners believed that the city government was a legal municipal organization?

There is much conflict in the cases in which this question has been considered, some of the courts holding that there cannot be a de facto officer unless there is a de jure officer, and so, where officers are exercising authority under an unconstitutional act, everything they do in exercising the functions of the offices they hold is void, as an unconstitutional law is no law and furnishes no authority to persons assuming to perform duties under it; while there is another line of cases holding that, although an act of the Legislature may be declared unconstitutional, the acts of officers who assume to exercise authority under it are binding upon the public and third parties until the legislation has been declared invalid. One of the leading cases on this subject is Hildreth v. McIntire, 1 J. J. Marsh. 206, 19 Am.Dec. 61. In that case there was involved a question growing out of the conflict between a court of appeals organized under and in conformity to the Constitution of the state and a court of appeals created by an act of the Legislature of the state, which body, having become offended at some decisions of the constitutional court, undertook to abolish it, and set up in its place a legislative court. In holding that this legislative court was not a de facto body or entitled to exercise any of the functions of a judicial tribunal, the court rested its decision distinctly upon the ground that there could not be a de facto judicial tribunal, exercising power and authority at the time the office it assumed to discharge the duties of was filled by constitutionally appointed judges, saying: "But when the Constitution, or form of government, remains unaltered and supreme, there can be no de facto department, or de facto office. The acts of the incumbents of such department or office cannot be enforced conformably to the Constitution, and can be regarded as valid only when the government is overturned. When there is a constitutional executive and Legislature, there cannot be any other than a constitutional judiciary. Without a total revolution, there can be no such political solecism in Kentucky as a 'de facto' Court of Appeals. There can be no such court whilst the Constitution has life and power. There has been none such. There might be under our Constitution and there have been 'de facto' officers. But there never was and never can be, under the present Constitution, a 'de facto' office. The gentlemen who directed the appeal in this case to be dismissed, and the one who certified the order, did not hold office in the Court of Appeals. The Legislature had attempted to abolish the Court of Appeals, ordained and established by the Constitution, and create in its stead a new court. This attempt was ineffectual for want of legislative power. The offices attempted to be created, never had a constitutional existence; and those who claimed to hold them had no rightful or legal power. They were not appointed to the Court of Appeals, fixed by the Constitution. They did not claim to exercise the functions of this court. Their tribunal claimed to derive its origin from the fiat of the Legislature. The Court of Appeals had not been, and could not be, abolished. Its judges had not been removed from office, and were acting and ready to continue acting as judges. The act of the Legislature did not intend to superadd four judges to the number already in office in the Court of Appeals. It cannot receive, and never has received, such a construction. The gentlemen who acted as judges of the legislative tribunal did not claim to be, and certainly were not, associates of the judges of the constitutional court. They were not their successors. They were not the incumbents or de jure or de facto officers. Nor were they de facto officers of de jure offices. For, if such a thing could be as a de facto judge of the Court of Appeals of the Constitution, these gentlemen did not hold any such place, for the reasons before assigned. They had no official rights or powers."

In Nagel v. Bosworth, Auditor, 148 Ky. 807, 147 S.W. 940 the question was presented as to the validity of the acts of John T. Hodge while he was acting as judge of the Campbell circuit court under an act of the Legislature that was subsequently declared unconstitutional. In holding that Judge Hodge was a de facto officer, and his judicial acts before the statute under which he was exercising the functions of...