
    Case 42 — PETITION ORDINARY
    April 13.
    Brown, &c v. Holland, &c. Campbell v. Dabney.
    APPEALS PROM CHRISTIAN CIRCUIT COURT.
    1. Election op Councilmen by Wards. — Under section 160 of the Constitution, the General Assembly has power to provide as to cities of the fourth class, as it has done, that councilmen “shall be elected by a majority of the votes cast by the qualified voters of the wards for which they respectively stand,” it not being necessary that they should be elected by the voters at large before it can be said they are “elected by the qualified voters of the city.”
    2. Same. — The charter for cities of the fourth class recognizes the existence of wards in such cities, and in effect continues the ward divisions existing under old charters.
    3. Election op Mayor by Council — Delegation by Legislature oe its Power to Municipal Corporations. — While the general rule is •'■hat the Legislature can not deputize others to perform its governing functions, yet it may delegate to municipal and other public corporations some portion of its own powers for local purposes. Therefore, under section 160 of the Constitution, which provides that mayors of town of the fourth, fifth and sixth classes “may be elected or appointed, as provided By law,” the Legislature has power to provide, as it has done as to cities of the fourth .class, that “the mayor may be selected by the people or appointed by the council, as may be provided by ordinance.” Nor is this provision in violation of section 156 of the Constitution, requiring the organization and powers of each class of cities “to be defined and provided by general laws so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.”
    4. Election not Invalidated by Certain Irregularities. — As the Constitution permitted, and the act for the government of cities of the fourth class required, the election of councilmen by the voters of each ward, and the city council in the absence of any specific directions by the General Assembly as to how these ward elections were to be held. did all in its power to comply with the Constitution and the act, both the council and the county judge appointing the officers to hold the elections in the respective wards as.required by the charter, and the city clerk furnishing the ballots under authority of the council upon the refusal of the county clerk to do so, these irregularities did not invalidate the election.
    5. In these actions to prevent tiie usurpation oe the offices of mayor and councilmen, in which the plaintiffs ask judgment, placing them in possession of the offices which they respectively claim, plaintiffs must recover upon the strength of their own titles, and have no interest in the settlement of any question which merely affects the titles of the defendants without giving validity to their own titles.
    J. I. LANDES, J. W. DOWNER and JAMES BREATHITT for appellants. *
    1. The only lawful method of choosing mayors of cities of the fourth class (the city of Hopkinsville being one of that class) is prescribed by the first clause of sec. 160 of the Constitution, which is that of election “by the qualified voters” of such cities, and the board of council of the city of Hopkinsville had no lawful or constitutional power or authority to cha.nge or fix the method “by ordinance,” and require the mayor of Hopkinsville to be appointed by the board, and thus take from the people of the city the constitutional right they had to elect their own mayor. While the General Assembly has the power to provide, by the enactment of a law, a method of selecting or choosing mayors and police judges in the cities of the fourth class, other than by the qualified voters of such cities, yet in the absence of such a law fixing a uniform method of choosing these officers in all cities of this class, the method prescribed in the Constitution — election by the qualified voters of the cities — must prevail.
    The power conferred upon the General Assembly to enact laws can not be delegated by that body to any other body or authority. (Cooley’s Const. Limit., 117; Cooley on Taxation, 61-64; Dillon on Mun. Corp., secs. 60, 567, 618; State v. Young, 29 Minn., 474; People v. Nevada, 6 Cal., 143; Bw parte Wall., 48 Cal., 279, 313; Tilley v. Savannah, &c., R. Co., 5 Fed. Rep., 641; Cincinnati, &c., R. Co. v. Clinton Co., 1 Ohio St., 77; Hydes & Goose, Ass’ees, &c., v. Joyes, 4 Bush, 464; The Auditor v. Holland, &c., 14 Bush, 147; Commonwealth v. Weller, Idem, 218; Clarke, &c., v. Rogers, &c., 81 Ky., 48; Burnside v. Lincoln County Court, 86 Ky., 425; Slack, &c., v. Maysville, &c., R. Co., 13 B. M.,’22.)
    2. The only lawful method of choosing members of boards of council of cities of the fourth class is that of election “by the qualified voters” of such cities, as provided in sec. 160 of the Constitution, which means, ex vi termini, “the qualified voters” of such cities at large; and the provision of sec. 4 of the act for government of cities of the fourth class (chap. 241 of Session Acts of 1891-2-3, p. 1211), allowing, or requiring, members of boards of council of such cities, in any event, to be elected “by wards,” is unconstitutional and void.
    3. Whatever power the General Assembly may have under the Constitution to require or allow members of boards of council of cities of the fourth class to be elected by wards, in contradistinction to electing them by the “qualified voters” at large, the provisions of the old charter of the city of Hopkinsville, in force at the adoption of the present Constitution,by which the eitywas divided into wards, was repealed, or abrogated, under the operation of see. 166 of the Constitution, when the act for the government of cities of the fourth class went into effect, that is, on the 28th day of June, 1893; and no wards have since that time been established in the city of Hopkinsville, and none were in existence at the November election, 1893.
    4. All elective officers of all cities and towns in the Commonwealth were required, by sec. 167 of the Constitution to be elected at the “general election” in November, 1893, which was the “one election” for that year allowed by sec. 148 of the Constitution, and which means the election provided for by the act entitled, “An act to regulate elections in this Commonwealth,” appro'ved June 30, 1892 (chap. 65 of the Session Acts of 1891-2-3), and conducted by the election officers appointed by the county judges under the said act, which act contained sufficient and exclusive provisions for the election of members of the boards of council of all cities of the fourth class at. the November election, 1833. in the manner required by the Constitution.
    R. T. PETREE, JOE McCARROLL, HUNTER WOOD, J. T. HANBERY and J. B. ALLENSWORTH fob appellees.
    1. The legislature did not intend by the adoption of the charter of cities of the fourth class to repeal any act or ordinance by which any city of the fourth class had previously been divided into wards. (Ky. Stats., sec. 3490, subsec. 33.)
    2. The charter of fourth class cities is in perfect harmony with sec. 156 of the Constitution.
    3. Sec. 160 of the Constitution does not require the mayors and boards of council of all cities and towns in Kentucky to be elected by the qualified voters at large of such citiés or towns.
    4. Appellants, like plaintiffs in ejectment, must recover upon the , strength of their own title, and not upon the weakness of their adversary’s.
    4. The law leaving to the legislative board of each town of the fourth class the right and power to determine by ordinance whether the mayor and police judge of such town should be elected by the people or by the members of the board of council is not unconstitutional. While the general rule is that the legislature can not delegate its general powers of legislation to any other body or authority, this rule has many exceptions. (Slack v. Maysville & Lexington R. Co., 13 B. M., 23; Sutherland on Statutory Construction, secs. 70-75.)
   JUDGE HAZELRIGG

delivered the opinion of the court.

The questions involved in these appeals relate to the legality of the election of mayor and councilmen of the city of Hopkinsville, under the provisions of the constitution, and the act for the government of cities of the fourth class.

The action first named was brought by the appellants Brown and others to prevent the usurpation of the office of councilmen of the city named by the appellees Holland and others; the other was brought by the appellant Campbell to prevent tbe usurpation of tbe office of mayor of that city by the appellee Dabney. In each case judgment was asked to place the appellants in possession of the offices which they respectively claimed. No objection is suggested against any of the parties on the score of qualification or eligibility. The appellants, Brown and others, were severally voted for by the qualified voters at large of the city, at the general election on the 7th day of November, 1893, held by the precinct officers appointed by the county court of Christian county, with ballots furnished by the county court clerk. There were four of these election precincts, and they embraced all the territory within the limits of the city and some outside, of such limits.

The appellees, Holland and others, were voted for on the same day by the qualified voters of the wards of the city, of which there were seven, the voters of each ward voting for only one member of the council, and the election being held in each ward by officers appointed by the city council, and with ballots provided by the city clerk. The appellant Campbell was elected mayor by the qualified voters of the city at the same general election held at the four precincts; while the appellee Dabney was appointed mayor by the council on the first Tuesday in January, 1894, in pursuance of an ordinance of the council adopted on September 5, 1893, providing for such appointment.

It is contended by the appellants: First, that the only lawful method of choosing members of boards of council of cities of the fourth class — the city of Hopkinsville being one of that class — is that of election by the qualified voters of such cities as provided by section 160 of the constitution, which means, by force of the language used therein, election by the qualified voters at large; and that the provisions of section 4 of the act for the government of cities of the fourth class (chap. 241, acts of 1891-2-3, p. 1211) allowing or requiring such members in any event to be elected “by wards” is unconstitutional and void.

Second, That however this may be, the provisions of the old charters by which these cities were divided into wards were repealed or abrogated under the operation of section 166 of the constitution, when the act for the government of cities of the fourth class went into effect, that is, on the 28th of June, 1893, and no wards have since that time been established in the city of Hopkinsville, and none were in existence at the November election, 1893.

Third, That elective offices in all cities and towns were required by section 167 of the constitution to be filled at the general election in November, 1893, which was the “one election” for that year allowed by section 148 of the constitution, and which was provided for by the general election law approved June 30, 1892 (chap. 65, acts 1891-2-3) and conducted by officers appointed by county judges with the official ballots furnished by the county court clerks.

Fourth, That the only lawful method of choosing mayors of cities of the fourth class is prescribed by the first clause of section 160 of the constitution, which is that of election by the qualified voters of such cities, and the board in this instance had no constitutional power to fix the method by “ordinance” and require the mayor to be appointed by the board. That the attempt by the General Assembly to delegate such power to the boards of councils of- such cities is unauthorized by the constitution.

For the appellees it is contended, and was so held by the court below: First, that members of legislative boards of all cities, save those of the first and second classes, might be elected by the qualified voters thereof, voting by wards or at large, and in cities of the first and second classes such members were to be elected by the qualified voters at large as expressly required by the constitution. That members of such boards in cities of the fourth class might therefore be elected by wards, or at large, as might be provided by the General Assembly. That in pursuance of this construction of the constitution the General Assembly did provide that in such cities of the fourth class as -were divided into wards, the members of such boards should “be elected by the qualified voters of the wards” for which they respectively stood, otherwise by the qualified voters of the city. That the division of the various cities in the Commonwealth into wards in so far as they were so divided was recognized by the constitution, and in no wise interfered with either by that instrument or by the laws enacted by the General Assembly for the government of such cities. That in the city of Hopkinsville, being a city divided into wards, the “ward” election, at which the appellees were elected, was held in accordance with the provisions of the statute and the constitution, from which it follows that the appellants, Brown and others, were not legally elected.

Second, That under the provisions of section 160 of the constitution, mayors of cities of the fourth class might be appointed or elected, as provided by law; that by the act for the government of cities of that class, it was provided that the mayor might be elected by the people or appointed by the council, as provided by ordinance, and that such an ordinance was adopted, and the appellee Dabney appointed mayor in strict accordance- with the provisions of the constitution, the act governing fourth class cities and the ordinance of the board on that subject. That the appellant Campbell was not so appointed, and is therefore not entitled to the office.

We shall consider the case of the councilmen first. So much of section 160 of the constitution as will be necessary to notice in this connection is as follows: “The mayor or chief executive, police judges, members of legislative boards or councils of towns and cities, shall be elected by the qualified voters thereof: Provided, the mayor or chief executive and police judges of the towns of the fourth, fifth and sixth classes may be appointed or elected as provided by law * * * * 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 the said wards or districts; but when in any city of the first, second or third class, there are two legislative boards, the less numerous shall be selected from and elected by the voters at large of said city; 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. * * * ”

Section 4 of the act for the government of cities of the fourth class, approved June 28,1893, and in force from that date, is as follows: “The members of the board of council shall be elected the first Tuesday after the first Monday in November every two years; shall be residents of the wards they represent, and .shall be elected by a majority of the votes cast by the qualified voters of the wards for which they respectively stand: Provided, The city is divided into wards, otherwise they shall be elected by a majority of the votes cast by the qualified voters of the city, of which they must be residents,” etc.

In our search, therefore, to ascertain the meaning of the words “shall be elected by the qualified voters thereof” in section 160 supra, we are met with a legislative construetion which authorizes an election of members of such boards by a majority of the votes cast by the qualified voters of the wards of such cities as may be divided into wards. The question is, therefore, is this legislative construction so repugnant to the obvious meaning and intent of the provisions of the constitution as to require judicial condemnation?

In other words, when the constitution requires members of legislative boards of towns and cities to be elected by the qualified voters thereof, must they be elected by the voters at large before it can be said that they are elected by the qualified voters of the city? And when such members are elected by the qualified voters of the wards of a city can it be said that they are not elected by the qualified voters of the city?

In this connection, it is to be observed that the clause in question is followed by the proviso that the mayor and police judges of certain cities may be appointed or elected, and we are urged to draw the inference that the intent of the framers of the constitution was simply to declare that the offices of members of municipal boards should be elective and not appointive, the manner of The election, whether by wards or at large, not being particularly under consideration. It is also to be seen that another significant clause follows in which the words “at large” are used, and from which it is argued that the election provided for in the first clause, in which those words are omitted, might be held by the qualified voters of the city, voting either at large, or by wards.

The provision is: “When any city of the first or second class is divided info 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 the said wards or districts; but when in any city of the first, second or third class, there are two legislative boards, the less numerous shall be selected from and elected by the voters at large of said city.”

If the clause, “members of legislative boards or councils of towns and.cities shall be elected by the qualified voters thereof” casi fairly mean only that they are to. be so elected “at large,” sit is difficult to escape the conclusion that much useless repetition has been indulged in by the framers of the constitution. It can not be that solely for the purpose of providing that an equal proportion of the members should reside in each of the wards, it was found necessary to use the words “at large.” Without these words, the clause, “but so selected that an equal proportion thereof shall reside in each of said wards or districts,” conclusively negatives the idea of an election by wards, because an election by wards would necessarily require an equal proportion of members to reside therein, and the provision would be superfluous. The use of these words, “at large,” in providing for elections in cities of the first and second classes, seems strongly to authorize, by implication at least, a different mode of election as to other towns and cities. They are seemingly used to emphasize the method to be adopted in elections of members in cities of the first and second classes, and distinguish it from that to be used in all other classes. Not that in other classes the method must be different, but that it may be. The use of the significant words in the one case and the omission of them in the other present the two methods in' contradistinction, the one from the other.

Moreover, the language of the first clause does not in terms preclude an election by wards. The learned judge below aptly says in this connection: “Of this section (160) it may be said generally that in speaking of the legislative boards, .it says ‘members’ of said boards shall be elected by the qualified voters of said city or town, using the plural number, ‘members.’ It does not say that each individual member shall be elected by the voters of the city, but that the members in the aggregate shall be so elected. Following this language literally, the members of said board in the aggregate have been so elected by the voters in the aggregate of said city. No single member has been elected by any other than the qualified voters of the city, and every qualified voter of the city has had an opportunity to vote for a member of said board of council.” The debates in the convention conclusively sustain this construction.

The section as first reported by the committee having the matter in charge read thus: “The mayor or chief executive, police judges, members of legislative boards or councils and of school boards of towns and cities shall be elected by the quálified voters thereof. * * * * When any city or town is divided into wards or districts, members of legislative and of school boards shall be elected at large by the qualified voters of said town or city, but so selected,” etc.

The distinguished chairman of the committee in deference to what he declared to be the demands of the smaller towns and cities, and for the reason that it secured to them the supremacy in governmental affairs of the more intelligent element in such cities and towns, amended the section in behalf of the committee, so that the second clause read as follows: “When any city of the first or second class is divided into wards or districts, members, etc., shall be elected at large,” etc.

Of this amendment, a prominent delegate said: “I hope this amendment will pass. It applies to my town (Hop- 1cinsville) which has been, governed for twenty years by people who own but a small portion of the property, but we have at last got a ward system in the city by which property-owners are able to govern the town themselves. I hope you will adopt the amendment, because otherwise it would put us back under the control of the irresponsible rabble.”

After reading the section as amended a distinguished member of the committee said: “Now, it does not take away from the legislature the power, by general laws, to regulate the mode in which the legislative boards of towns, other than of the first and second class, shall be arranged. If hereafter the legislature should want fo provide a. mode of representation in these towns by electing from the town at large, it could do so. This does not provide for one way or the other, but leaves it with the legislature, and does not interfere with these little towns, such as the one represented by the gentleman from Christian county, but is simply applicable to cities of the first and second class.” And the committee amendment appears to have been agreed to without division. (Debates, Constitutional Convention, vol. II., pp. 2905-6.)

However, if, as contended, the provisions of the oíd charter dividing the city into wards were repealed by the new charter or act for the government of cities of the. fourth class, and the wards tiras abrogated under the operation of the constitution, the law providing for ward elections is not to be applied, in which event the appellants, as they were elected “by a majority of the votes cast by the qualified voters of the city,” are entitled to the offices.

The contention is that the “ward” law of January, 1890, dividing the city into seven wards, being an amendment of the old charter of the city, 'was abrogated and repealed by the act for the government of cities of the fourth class, adopted June 28, 1893. That section 160 of the constitution provided for a continuance in force of the acts of incorporation of cities and towns and all amendments thereto until such time as the General Assembly shall provide by general laws for the government thereof, and therefore, say counsel, “the date of the passage of any such act for the government of any class of cities, is the limit of the periods of existence of previously existing acts of incorporation and amendments thereto, of all cities belonging to that class of municipalities.” This argument seems to be sound enough, but nevertheless if when the act for the government of cities of the fourth class came to be adopted, the existence of ward-divisions therein was recognized and in effect continued, the conclusion that the wards thereof are abolished or obliterated is erroneous. And it seems to us that the act of June 28, 1893, does recognize the existence of wards in such cities, and in effect continues the ward-divisions. Thus in sub-section 32 section.9 it is provided that “said board of council may change the boundary line of any ward or wards of* any city now divided into wards, or hereafter divided into wards under the provisions of this act,” etc.

Other references to the division of such cities into wards in the present tense are made in sections 3 and 4 of the act, and while these references may possibly refer to some future division into wards, we do not think such is the meaning of the references. It seems absolutely inconsistent that the legislature would grant the council the power to change the boundary lines of wards in existence at the time of the passage of the act, if upon its passage and by reason thereof, those wards became obliterated.

By the ordinance of September 5, 1893, the boundaries of the wards in Hopkinsville were changed and fixed definitely, and the succeeding election held therein accordingly.

It is said, however, that the one election for each year, provided for in section 148 of the constitution, was that of the general election held by the officers required to be appointed in pursuance of the general election law. This is doubtless true. The appellants, however, are not concerned in the settlement of this question. If the-appellees were not elected in strict accordance with the requirements of the general election law, that fact does not give validity to the title of the appellants upon the strength of which alone they can recover the office. They are concerned in the determination of the questions whether the- election “by wards” was authorized by the constitution, and whether the ward system was continued by the act of June-28, 1893, because, if not so authorized and continued, the appellees were not only not elected, bixt the appellants were. But if constitutional authority exists for the ward elections, and such wards in fact existed, the appellants claiming the offices of councilmen have no further interest in the controversy.

So, also, we may say in this connection, the appellant Campbell claiming the office of mayor is not interested in the question whether or not the appellee Dabney was appointed by a board of councilmen, in all respects elected in pursuance of the general election law.

The only question he is concerned about is whether the appointive method for choosing a mayor, provided for in the act for the government of cities of the fourth class, and pursued in the selection of the appellee Dabney, was axxthorized by the constitution; for, if so, the appellant’s election, having been by a different method, is void. And this question we will now consider.

The language of the act is: “The mayor may be elected by the people or appointed by the council, as may be provided by ordinance.” (Sec. 3, ch. 241, acts 91-2-3.)

The constitutional provision is that mayors of towns of the fourth, fifth and sixth classes “may be appointed or elected as provided by law.” (Sec. 160.)

The contention is that the legislature can not delegate to the various boards of council the right to provide the manner in which the mayors of these cities may be selected, but must itself provide the manner. And, moreover, that such a delegation of power is in violation of section 156 of the constitution, requiring the organization and power of each class of cities “to be defined and provided by general laws, so that all municipal corporations of the same class shall possess the same power and be subject to the same restrictions.”

The general rule that the legislature can not deputize others to perform its governing functions is well settled. (Cooley’s Const. Lim., 6th ed., 137.)

It, however, “may delegate to municipal and other public corporations some portion of its own powers for local purposes,- the general rule being that it may authorize others to do things which it might properly, yet can not understandingly or advantageously do itself.” (19 Am. & Eng. Ency., 464, and eases there cited.)

In Thompson v. Floyd, 2 Jones L. (N. C.) 313, cited by Mr. Sutherland in his work on Statutory Construction (sec. 70), it is said: “Neither is it necessary for us to consider the general question whether the .C-eneral Assembly can delegate any portion of its legislative functions to any man or set'of men, acting either in an individual or corporate capacity. That it may, has been too long settled and acquiesced in by every department of the government and by the people, to be now disputed or even discussed. The taxing power is, unquestionablj’, a legislative power, and one of the highest importance, and yet has, ever since the adoption of the constitution, been partially delegated to the justices of the county court, and to every incorporated city, town and village throughout the State. . . . The truth is, that in the management of all the various and minute details which a highly civilized and refined society requires, the General Assembly must have, and are universally conceded to have, the power to act by means of agents, which agents may be either individuals or political bodies, most generally the latter. Without such power the legislature would be an unwieldy body, incapable of accomplishing one-half the great purposes for which it was created.”

In Slack v. Maysville & Lexington Railroad Company, 13 B. M., 1, it is said that the legislative will is ordinarily enforced by the judiciary or the executive, or by both combined. “But the legislature is not restricted,” says the court, “to these agencies. It may select or appoint others, as is often done, when the object of the law is to accomplish local or individual purposes. The agency generally employed for applying the legislative will and the power of the government to purposes merely local, has been that of county courts for counties, and of trustees of towns or the municipal authorities of cities for towns and cities, which, to the extent of the powers permanently or temporarily vested in them, and whether allowed a discretion or not, do but carry into effect the legislative will and power.”

In considering a different branch of this case, we have seen a manifest purpose, on the part of the framers of the constitution, to provide a local government best suited to the needs and conditions of the cities and towns of the Commonwealth, and it would seem at least-to be in accord with that purpose if the legislative department of these cities and towns might be left free to adopt such method of choosing their chief executive as, in its judgment, would secure the best results.

Nor do we think that the provision for the election, or appointment of this officer is in conflict with sec. 156 of the constitution, requiring the organization and powers of each class of cities and towns to be defined and provided for by general laws, and all municipal corporations to possess the same powers and be subject to the same restrictions.

It seems to us the organic structure of a city government with an appointed mayor is not one on that account different from that of a city government in which the mayor is elected by the qualified voters. As said by the learned judge below: “A mayor is equally a mayor with the same powers and- subject to the same limitations whether chosen by a vote of the people of the city at large or, whether selected or chosen by the board of council,” and certainly, it seems to us, the powers and the restrictions therein of all municipal corporations may be defined and provided for by general laws whether the office of mayor be filled in the one way or the other.

From what we have said it follows that the judgments below dismissing the petition of the appellants Brown and others, and of the appellant Campbell, are correct, whether or not the appellees are respectively entitled to hold their offices.

IVe have seen that the constitution permitted, and the act for the government of cities of the fourth class required, the election of counoilmen by the voters of each ward, but by inadvertence, as we suppose, there was no method pointed out by the General Assembly how to hold these ward elections, if the ward-limits did not correspond with the limits of thé general voting precincts as fixed by the county court. This has since been fully remedied. (§3485 Ky. Stat.) In the absence of any specific directions on the subject, the council did all in its power to comply with the constitution and the act. It appointed the officers to hold the election in the respective wards as required by the charter. The county judge also appointed the same officers. The county clerk declining to furnish the ballots for the ward elections, the city clerk did so under the authority of the council. In all other respects the election was conducted as required by the general law. We are of the opinion that the irregularities indicated did not invalidate the election of the appellees, and that they hold their respective offices as if elected in strict conformity with the general election laws.

Wherefore the judgment in each of the cases is affirmed.

Judge Guffy dissenting.  