Request By:
Mr. John M. Back
News Director
WKYM
P.O. Box 36
Monticello, Kentucky 42633
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The city of Monticello passed an ordinance establishing the office of police commissioner. We concluded in OAG 77-236 that it was illegal since, in a 4th class city, the mayor commands the police and the chief of police is second in command. See KRS 95.720 and 95.730.
Question No. 1: What action must be taken to void the ordinance?
Since the police commissioner is drawing money for his salary out of the city treasury, such payments would be illegal. It is our opinion that a taxpayers' suit could be filed in circuit court attacking the ordinance and asking that the post be abolished and the money spent on it be returned to the city treasury. However, before such a suit is filed, the interested taxpayers would first make demand on the city council for such relief, and then, if the council refuses or fails to take appropriate action, the taxpayers could sue.
In McQuillin, Municipal Corporations, 3rd ed. rev., Vol. 18, § 52.18, page 36, we find this:
"Although there is authority to the contrary, where public money has been dissipated or unlawfully paid out, and it is apparent from the facts that the municipal officers, after a proper demand where necessary, will not institute an action to recover the money, it is generally held that tax payers may sue, in their own behalf and in behalf of all other taxpayers of the city, to compel restoration of the money to the city treasury. "
See
Hoskins v. Helton, 252 Ky. 616, 67 S.W.2d 975 (1934) 976, 977, emphasizing that the taxpayers are the real parties in interest where money is due to be paid into the governmental treasury. Also see
Taylor v. Scoville, 252 Ky. 809, 68 S.W.2d 423 (1934) 424, on the point that a taxpayers suit as to illegal expenditures of public money can only be brought after the fiscal court refuses to sue.
Question No. 2: What about the acts of the police commissioner, in the meantime, as a de facto officer?
There is a general rule holding that the appointment of one to an office that has no legal existence gives no color of existence to the office or color of authority to the person appointed. 63 Am.Jur.2d, Public Officers and Employees, § 498, p. 932. Thus there is no such thing as a "de facto office." In other words, a de facto officer would first have to be attempting to fill a legal office. There must be an office de jure in order that there may be a de facto officer. See
United States v. Royer, 268 U.S. 394, 69 L. Ed. 1011, 45 S. Ct. 519. The Kentucky cases dealing with de facto officers carry the assumption that the particular "office" is a legal one. See
McKemna v. Nichols, 295 Ky. 778, 175 S.W.2d 121 (1943) 122.
In this case the "police commissioner" cannot be a de facto officer, since he does not purport to fill a legal office.