Brown v. Board of Education of City of Newport. a case like the one under consideration, where, for con venience, and for motives of public policy not necessary now to be considered, the power to contract the indebtedness is lodged in one agency in the administration of the civil government and the power to provide the means for meeting such obligation is lodged in another. It is urged that if the word "raised," in section 184, providing that "no sum shall be raised or collected for education other . than in common schools, until the question of taxation is submitted to the legal voters, and a majority of the votes cast at said election shall be in favor of such taxation,” is to be given its common meaning or "borrowed," then it would require only a "majority" vote to incur a debt for higher education and a "two-thirds" vote to incur a debt for common school education. We think the text of the section shows clearly that the intention was to prohibit the collection of any taxes to any extent for educa tional purposes other than common schools, without the consent of a majority of the people. The section is a restriction upon legislative power, not upon municipal indebtedness. But it is insisted that in the case of Woods v. Board (Ky.) 53 S. W., 517, this court has decided that a board of education of a city of the second class is not a municipality within the meaning of section 157 of the Constitution. It was not the intention of the court nor of the writer of the opinion to so decide. There was but one question presented, argued, or decided in that case, and that was whether an indebtedness contracted after the adoption of the act for the government of cities of the second class could be refunded. It was agreed that the question to be determined was whether "the board of education has the power to refund, by the issuance of bonds, Gorley v. City of Louisville. a certain debt of $8,400, contracted August 31, 1896," and the court there said that "no reason can be perceived why the remedial purposes of the statute should not include debts thereafter lawfully created, as by the agreed case the debt in question seems conceded to be." The question expressly and explicitly presented to us was whether the board could refund a debt contracted after the act was enacted. We decided that single questions thus presented to us, limiting the decision to the debts lawfully created, as the debt in question was conceded to be. For the reasons indicated, the judgment is reversed, and the cause remanded, with directions to grant the prayer of appellant's petition. CASE 105-ACTION TO RECOVER SALARY AS POLICEMAN OF THE CITY OF Gorley v. City of Louisville. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.. REVERSED. OFFICE AND OFFICERS-SALARIES.. Held: The appellant, Gorley, was removed from his office of policeman by the Board of Safety of the city of Louisville. He sued the city for his salary, claiming he was illegally removed. The city pleaded limitation of six months under a special statute. The circuit court held the removal was illegal, but sustained the plea of limitation. On the first trial this court held that the removal was illegal,, but declared the special statute unconstitutional and reversed the judgment. (See 20 Ky. Law Rep., 602.) It now appearing that there is no one holding appellant's office whom he can sue, he has the right to sue the city for his salary. But he can only recover so much of the salary as would likely accrue pending a prompt judicial settlement of his rights.. 108 789 f138 765 f138 766 Gorley v. City of Louisville. HENRY S. BARKER, ATTORNEY FOR APPELLANT, 1. The lower court held that although the appellant was wrongfully dismissed from his office, he could not recover his salary until his right and title to the office had been judicially determined by a suit in court. This was a manifest error as there was no one in his office-no usurper to sue- and his only remedy is against the city. Ky. Stats., secs. 2874, 2880; Gorley v. City of Louisville, 20 Ky. Law Rep., 602. HENRY L. STONE, ATTORNEY FOR APPELLEE, CITY OF LOUISVILLE. 1. Appellant's title to the office had not, been determined in his favor before the institution of this action. Shelby v. Portland, 14 Ore., 234. 2. Absence without leave. 3. Failure of appellant to take the oath and execute bond required by the act of March 23, 1894. Ky. Stats., sec. 2894. OPINION OF THE COURT BY CHIEF JUSTICE HAZELRIGG-REVER SING. When appellant Gorley claiming that his attempted removal from office by the Board of Safety, was illegal and void, sued the appellee city, for his salary, the city among other things pleaded the special six months statute of lim itation in bar of recovery. It also pleaded certain facts which were supposed to authorize the removal. The circuit court held that the removal was illegal, but upheld the plea of the statute. On appeal this court held also that the removal was illegal, but declared the special statute unconstitutional, and reversed the judgment (20 Ky. Law Rep., 602). We said further in that opinion, that the demurrer to the petition ought to have been sustained on the ground that Gorley was not entitled to bring his action for salary until he first established his right and title to the office by a suit against the person, the de facto officer, who had been put in his place. This was based on the theory that another person had been put in appellant's stead. Had the de Gorley v. City of Louisville. murrer been sustained on this ground, the pleader might have amended his petition, and in the light of subsequent events would have done so, and had his case considered on its merits. If it was not true that some one had been put in the office in place of appellant, then the doctrine announced had no application, as there was no one against whom such a suit could be brought. This we understnad is the rule adopted in the authorities cited in the former opinion. On the return of the case it has been made to appear, that there is no one holding appellant's place against whom he might bring his action, and he must therefore, be permitted to sue the city or be remediless. It does not follow however, that one so situated may re main passive as appellant did for about one year, and even earn money from other sources, and then sue for his accumulated salary. He must assert his right to the office and his salary promptly, to the end that upon his restoration to the office, if that should follow a favorable decision, he may perform the duties for which he is to be paid, or the city take such steps as she may legally do to avoid further loss. This is but common justice to the city. Upon being refused his salary appellant ought then to have brought this action. We think he has demonstrated his right to so much of the salary as would likely ac crue pending a prompt judicial settlement of his rights. in the premises, and he ought to have no more. The city authorities presumably would have restored him or have taken the proper steps to remove him. The judgment dismissing his petition is reversed for proceedings consistent with this opinion. Fort Jefferson Improvement Co. v. Dupoyster. CASE 106-ACTION TO RECOVER BALANCE OF PURCHASE MONEY ON LAND Fort Jefferson Improvement Co. v. Dupoyster. APPEAL FROM BALLARD CIRCUIT COURT. Joe. C. Dupoyster, in his own right, and as administrator of Ben. S. Dupoyster, sued the Fort Jefferson Improvement Company to recover the balance of the purchase price of land. JUDGMENT RESCINDING THE CONTRACT OF SALE, BUT REFUSING TO GIVE REVERSED. CHAMPERTY-CONSTRUCTION OF DEED-VESTED REMAINDER-POWER OF Held: 1. A deed conveying land in the adverse possession of another is not void, but voidable merely, at the instance of the parties in adverse possession; and, therefore, if the grantee buys in the adverse titles, a purchaser from him can not complain of his title. 2. A deed to B. which recites that "it is expressly agreed and under- J. M. NICHOLS & SON, ATTORNEYS FOR APPELLANTS. 1. The court will find as a matter of fact from the evidence that on the 16th of March, 1859, the whole of the Todd survey was in the actual adverse possession of one Unsell, claiming under the Todd title and against Thos. Dupoyster and all the world, and therefore the conveyance by Thomas Dupoyster to B. S. Dupoyster was champertous and void. |