Hopkins County v. St. Bernard Coal Co.

• Citation: 70 S.W. 289,114 Ky. 153
• Parties: HOPKINS COUNTY et al. v. ST. BERNARD COAL CO. et al.
• Decision Date: 14 November 1902
• Court: Court of Appeals of Kentucky

70 S.W. 289

114 Ky. 153

HOPKINS COUNTY et al. v. ST. BERNARD COAL CO. et al.

Court of Appeals of Kentucky.

November 14, 1902

Appeal from circuit court, Hopkins county.

"To be officially reported."

Action by the St. Bernard Coal Company and others against Hopkins county and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Ruby Laffoon, C. C. Givens, Lee Gibson, and M. C. & G. D. Givens for appellants.

Gordon & Gordon, M. K. Gordon, and Elijah G. Sebree, Jr., for appellees.

HOBSON J.

The appellee John Robinson and 95 others, suing for the use and benefit of the St. Bernard Mining Company, and that company for itself, filed this suit against the county of Hopkins and the members of the Hopkins fiscal court, asserting claims amounting in the aggregate to $2,408 against the county of Hopkins, growing out of their services in guarding the property of the St. Bernard Coal Company when summoned by the sheriff pursuant to an order of the county judge of Hopkins county, under section 1241a, Ky. St. The court gave judgment in favor of the plaintiffs, and the defendants have appealed.

The validity of this statute was upheld by this court in Cahill v. Perrine, 49 S.W. 344, and upon a re-examination of the question we see no reason to recede from the conclusion then reached. The material parts of the statute are set out in that opinion, and all the grounds of objection to it which are now made, as shown by the opinion and dissenting opinion, were considered by the court. The statute authorizes the judge to "order the sheriff or any constable of the county to summon a posse of not less than two nor more than ten discreet, able-bodied men between twenty-one and fifty years of age, for each piece of property threatened with injury or destruction, to be placed at or in such property armed with guns and ammunition, until the judge is satisfied the cause no longer exists, not to exceed thirty days at any one time." The discretion of determining whether the posse shall consist of only two men or more than two (but not more than ten) is vested in the sheriff. The county judge is not required to fix the number to be summoned by the sheriff, for he, on the ground, can determine this as there may be need. The county judge, therefore, in his order in the case before us, properly followed the language of the statute, and left the number of the posse to be determined by the sheriff within the limits fixed by the statute. If no discretion was left to the sheriff as to the size of his posse in time of exigency, the purpose of the act might be entirely defeated, or greatly unnecessary cost might be entailed.

It is insisted that the liability thus imposed on the county is in violation of section 157 of the constitution, which, so far as material, is as follows: "No county, city, town taxing district, or other municipality shall be authorized or permitted to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume the same." It is a part of the history of this state that in times of popular excitement many of the counties and towns of the state had voted...