Barron v. Kaufman

• Decision Date: 28 January 1909
• Citation: 115 S.W. 787,131 Ky. 642
• Parties: BARRON v. KAUFMAN.
• Court: Kentucky Court of Appeals

115 S.W. 787

131 Ky. 642

BARRON v. KAUFMAN.

Court of Appeals of Kentucky.

January 28, 1909

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by W. E. Barron against Moses Kaufman. Judgment for defendant, and plaintiff appeals. Affirmed.

H. C Hazelwood and A. S. Moore, for appellant.

Walton Dickson & Walton and Geo. C. Webb, for appellee.

O'REAR J.

Appellant suing as a citizen and taxpayer of Lexington on his own behalf and on the behalf of all other taxpayers of the city, brought this suit against appellee, Kaufman, as auditor of the city, and his surety, to recover in the name and for the city certain sums of money alleged to have been illegally audited by Kaufman as auditor, and paid out of the city treasury. During Kaufman's term of office as city auditor there was paid about $1,000 to members of the board of councilmen and board of aldermen of the city for their attendance upon meetings of their respective bodies when they were not in fact present. Appellant alleged that the claims so paid were for services which the claimants did not render, and were fraudulent claims against the city; that Kaufman, whose duty it was to audit all claims presented against the city for payment, and to see that they were just and legal claims before signing the warrants for their payment, failed to investigate them, but paid them without investigation or warrant of law; that it was his duty, by and with the advice and consent of the mayor, to institute proceedings to recover money due the city, but that he refused and neglected to sue to recover this money. Hence the appellant sought to maintain the action to recover for the city treasury the sums so illegally paid and withheld. A general demurrer was sustained to the petition; and, as appellant elected to stand upon its averments, it was dismissed. Section 3043, Ky. St. 1903, prescribing the duties and fixing the compensation of aldermen and councilmen of cities of the second class, provides as to their compensation: "Each member of the general council shall receive three dollars for any stated or called meeting of said boards; but each absentee shall forfeit double his pay, unless he be absent from the city, or too sick to attend. *** Each board shall adopt rules for its proceedings, determine the election and qualification of its members, except as hereinafter provided, punish its members for contempt or disorderly conduct, and two-thirds of the members concurring, may expel a member, but not twice for the same offense. A majority of the members elect shall form a quorum of either board, but a smaller number may adjourn from day to day, and the attendance of members may be enforced by rules or ordinances with appropriate fines, not exceeding two dollars." The petition does not disclose whether the absentees were too sick to attend the meetings for which they were paid, or whether they were absent from the city. Appellee's contention is, as the petition does not negative the fact of sickness or absence, it is deficient. Aside from the rule that exceptions in statutes need not generally be negatived, but are matters of defense, we will construe the section as to its meaning concerning the pay of the members.

Appellee argues that the members are to receive $3 a day for each day the council is in session, whether they are in attendance or not, inasmuch as the statute does not predicate their right to pay upon the fact of their attendance. But if one did not attend, he should forfeit double that sum, unless he was too sick, or was absent from the city. In that view the section would mean that the member was to get $3 for each meeting although he may not have attended. If he was absent (unless sick or out of town), he should forfeit $6 for each meeting, which would leave it that if he was out of town, or too sick to attend, he got $3 for each meeting, as well as $3 for each meeting that he attended. Appellant's contention is that the pay provided by the statute is for service; that there could not be service without attendance; that the...