
    CASKS 20. — ACTION BETWEEN W. L. GLAZIER AND THE CITY OP NEWPORT; INVOLVING THE LEGALITY OP A CITY ORDINANCE
    February 19.
    Glazier v. City of Newport
    Appeal from Campbell Circuit Court.
    Charles W. Yungblut, Circuit Judge.
    From the judgment plaintiff appeals.
    Reversed.
    Municipal Corporations — Meetings of General Council — Special Meetings — -Authority of Mayor. — Under Ky. Stats., 1903, section 3046, providing that the board of aldermen and the board of councilmen shall meet at least once a month and shall not adjourn for a longer time, but may actjourn from day to day, and that, when both boards are called in session, one shall not adjourn without the concurrence of the other for a longer time than 24 hours, etc., and section 3110, authorizing the mayor to convene at any time the general council, composed of the two boards, the mayor can not convene the board of aldermen alone to enact general legislation begun in the board of councilmen.
    BRENT SPENCE, R. W. NELSON, AUBREY BARBOUR and THOMAS P. CAROTHERS for appellant.
    POINTS AND AUTHORITIES CITED.
    1. JECy. Stats., section 3043; Shugars, Police Judge, v. Hamilton, 92 S. W. 564; Cyc., volume 28, p. 329;Abbott on Municipal Corporations, p. 1284; Mills v. City of San Antonio, 65 S. W. 1121; Burns v. Thompson, 64 Ark. 489; Township Board Beaver Creek v. Hastings, Township Clerk, 52 Mich. 529; London & N. Y. Land Co. v. City of Jellico, 103 Tenn. 320; Knoxville v. Knoxville Water Co., 107 Tenn. 657; Lord v. City of Annoka, 36 Minn. 176; Durant v. Jersey City, 25 N. J. L. 311; Flood v. Atlantic City, 63 N. J. L. 531.
    2. What constitutes a resignation or vacation of office. Rex v. Hughes, 5 Barnwell & Cresswell 886; Rex v. Bdnd, 6 D. & R. 333 (both cited by Dillon, p. 309, 4th Ed.); Meecliem on Public Offices, sections 425-426; Dillon on Municipal Corporations, sections 224-225-226; Abbott on Municipal Corporations) section 633; Stubbs v. Lee, 64 Me Rep. 195; Pariseau v. Board of Education of the City of Escauba, 96 Mich. 302; VanArsdell v. Hazard1, 3 Hill (N. Y.) 243; Barbour v. U. S., 17 C. T. C. L. 149; McGhee v. Dickey, Et. 4 Tex. 104; State of Texas v. Beinkérhoff, 68 Tex. 45; State v. Pitts, 49 Ala. 402; State v. Hauss, 43 Ind. 105; McGhee v. State, 103 Ind. 444; State ex rel. Kirtley v. Augustine, 33 Mo. 21; Writer v. State, ex rel., 51 Ohio State, 74; People ex rel. v. Hanifan, 6 111. App. 158.)
    3. Can the authority to create the office of additional aldermen be delegated to a subordinate legislative body? (Reading v. Savage, 121 Pa. 198.)
    4. Can there be a vacancy in a newly created elective office before the same is filled by election by the people? ( Abbott on Municipal Corporations, p. 1480; Brady v. Howe, 50 Miss. 67; State v. Cool, 51 N. J. L. 191; in re. Board of Health, 64 Hun. 634; State v. McGhee, 65 N.'C. 257; Lyree v. Adler, 51 Miss. 28; Commonwealth v. King, 85 Pa. 183; Davis v. Davis, 57 N. J. L. 80.)
    5. Was there any power in the mayor to call either board of the general council in session separately? (Ky. Stats., .section 3046; Ky. Stats., section 3110.)
    OTHER AUTHORITIES.
    Ky. Stats., sections 3043, 3049, 3051, 3208', 1521; 5 Bush 231; 14 Ky. Law Rep. 25, 586; 94 Ky. 540; 30 Ky. Law Rep. 1082; 103 U. S. 227.
    COURTLAND T. BAKER, City Solicitor, for appellee.
    1. In order to be an estoppel by conduct, the following elements must be present;
    (First) There must have been a representation or a concealment of material facts.
    (Second) The representation must have been made with knowledge of the fact.
    (Third) The party to whom it was made must have been ignorant of the truth of the matter.
    (Fourth) It must have been made with the intent that the other party should act upon it.
    (Fifth) The other party must have been induced to act upon it.
    If there" is an estoppel, it can not be by judgment or record, of adjudication, nor by matter of deed, but must be matter in pais, of which estoppel by conduct is the key. If an office may be transferred from one to another in the mode attempted, no elucidation is necessary to expose the evils which flow from repeated changes which the sanction of the claim of the respondent, to the extent required, would render possible.
    2. This court can not consider the wisdom, expediency or policy of the ordinance in issue as that is a matter directed to the discretion of the general council. The sole question in issue in this case is; Under the charter of the city of the second class, of which Newport is one, did or did not the board of aldermen of the city of Newport have a right to pass this ordinance. If, under the charter, they had power to pass it, and did pass it pursuant to the charter, then there can be no question as to its validity or invalidity. Counsel for the city of Newport maintains that the. ordinance was passed pursdant to the charter and in due form of law. Therefore, the increase of the board of aldermen is legal. It is unnecessary to say to the court that this court can not inquire into the motive of the general council in passing this ordinance. If they had a right to pass it under the charter, then it was a matter that rested solely within the discretion and wisdom of the general council whether or not said ordinance should be passed, and this court has no power to inquire into their motive.
   Opinion op the Court by

Judge Hobson

Reversing.

The city of Newport is a city of the second class. By section 3043, Ky. Stats., 1903, which is a part of the act governing cities of the second class, it is provided that the board of aldermen shall be composed of four members, but that the general council may by ordinance provide that the number of aldermen may be increased to any number not exceeding eight, Previous to the November election, 1908, the number of aldermen had been increased to five. After that election an ordinance was passed by the board of councilmen increasing the number of aldermen to eight; but the ordinance1, after passing the board of eouncilmen, was not presented to the board of aldermen at that meeting before it adjourned. Section 3110, Ky. Stats., 1903, defining the power of the mayor, is as follows: “He shall, from time to time, give to the general council information in regard to the affairs of the city, and recommend to their consideration such measures as he may deem expedient. He may for special reasons, convene the general council at any time.” The mayor, learning that the ordinance re^ferred to had not been acted on by the board of aider-men, issued a call for a special meeting of the board of aldermen, and notice of the call was given each of the five members of the board. The board met pursuant to the call, and the ordinance was then given its first reading. They then adjourned. Thereupon the mayor, by another proclamation, called the board in special session ten minutes later, and of this- meeting no notice was given, except to those members of the board who were there. The board met pursuant to the call, and gave the ordinance its other readings, and1 thereupon passed it. The next day they were advised by the city solicitor that the second meeting held that night was void, and thereupon, at the next regular meeting of the general council, the board of aldermen gave the ordinance its second and third readings, and then passed it again.

The question before us is whether the ordinance thus passed is valid. It is conceded that the second meeting, held under the second proclamation of the mayor, and without notice to all the board, was void. It is also conceded that the ordinance could not be passed by the board of aldermen at the same meeting at which it was introduced, and that therefore the passage of the ordinance at the regular meeting referred to was not valid unless the prior special meeting, at which the ordinance was introduced and read for the first time, was a valid meeting of the board of aldermen. Section 3046, Ky. Stats., 1903, regulating the meeting's of the boards, is as follows: “Both of said boards shall .meet at least once in each month, and shall not adjourn for a longer time, but may adjourn from day to day, and sit as long as business requires. When both boards are in called session, one shall not adjourn without the concurrence of the other for a longer time than twenty-four hours. If they shall fail to agree on adjournment, the mayor may adjourn them to a day not beyond the next regular time of meeting. ’ ’ It will be observed that by the statute the mayor may for special reasons convene the general council at any time; but the general council is composed of both the board of aldermen and the board of councilmen. The power to convene the municipal legislature at any time is not authority to convene one of the boards •without the other. The power of the mayor is derived wholly from the statute. He has no power except that which the statute confers. The power to convene a general council in session is one thing,' and the power to convene one of its hoards in session to legislate alone is a very different thing. The purpose of having two boards is that one may act ás a check upon the other, and that the ordinance’, when passed, shall represent the common judgment of both bodies. It was not contemplated that an ordinance might be passed by one of the boards at a regular meeting, and that the other board might be called in special session by the mayor for the passage of the ordinance, when the members of the board first acting had no notice of the proceeding and no opportunity to take any action. If the mayor had followed the statute and called a special meeting of the general council, the board of eouncilmen, when they met, might have passed a resolution withdrawing the proposed ordinance from the board of aldermen before it was acted upon by that body; and this is not infrequently done. If the board of eouncilmen had been in session, and the ordinance had been amended by the board of aider-men in some particular, and the eouncilmen had been in session, it might have gone back to that body for their concurrence in the amendment; but the fact that this body Was not in session, and that the adoption of the amendment would defeat the entire purpose of the meeting, might deter the board of aider-men from making an amendment which their judgment approved. One board may not adjourn without the concurrence of the other for a longer time than 24 hours, when they are' called' in special session, and we are satisfied that a calling together of one of the legislative boards of a city to enact general legislation which has been begun in the other board is not warranted by the statute or contemplated by it. We are, therefore, of opinion that the called meeting of the board of aldermen referred to was not valid, and that, as the ordinance was passed by the board of aldermen at the first session- after it was introduced into that body, it was not a legal ordinance.

Judgment reversed, and cause remanded, for a judgment as above indicated.  