Boyd County v. Arthur

• Citation: 118 Ky. 932,82 S.W. 613
• Parties: BOYD COUNTY v. ARTHUR et al.
• Decision Date: 04 November 1904
• Court: Court of Appeals of Kentucky

82 S.W. 613

118 Ky. 932

BOYD COUNTY v. ARTHUR et al.

Court of Appeals of Kentucky.

November 4, 1904

Appeal from Circuit Court, Boyd County.

"To be officially reported."

Appeal by Boyd county to the circuit court from orders made by the fiscal court of the county in favor of Jack Arthur and others. From a judgment dismissing the appeals, the county appeals. Reversed.

J. F Stuart, Wm. Poage, Jno. W. Woods, and R. L. Greene, for appellant.

Thos R. Brown and Geo. B. Morten, for appellees.

HOBSON J.

The fiscal court of Boyd county at a special term held on June 12, 1903, made the following orders:

"On motion of Mr. Kirk it is ordered that the following appropriations be made and spent according to the directions of each magistrate: District No. one, $200.00 district No. two, $500.00; district No. three, $300.00; district No. four, $400.00. Esquires Arthur, Kirk, Handley and Buckley voting for the adoption of the above order, and Judge William Poage voting against same, and orders that an appeal be taken to the Boyd circuit court to test the legality of same."

"On motion of J. L. Kirk, J. P., and seconded by F. M. Buckley, J. P., it is ordered that each of the five justices of the peace of Boyd county, Kentucky, shall be allowed three dollars a day for each day's work done by them in supervising and directing the work in their respective districts, in constructing and maintaining the county roads therein, not exceeding fifty days for the year 1903, and each year thereafter in lieu of this amount heretofore drawn by them.

"The foregoing order is excepted and objected to by William Poage, Judge of the Boyd county court, and ex officio member and presiding judge of the Boyd fiscal court. It is therefore ordered that an appeal be taken from said order, or that such other legal proceedings be instituted as may appear necessary to test the legality and validity of said order.

"John W. Woods, a regular practicing attorney at law of Boyd county, is hereby employed and appointed for and on behalf of Boyd county to take and prosecute said appeal, or such other necessary legal proceedings as may appear for the best interests of Boyd county in and to and through any court to which said cause may be carried. For which legal service so rendered he shall be paid by Boyd county a reasonable compensation."

An appeal was taken to the circuit court as provided in the orders, and in that court a petition and an amended petition were filed setting out the proceedings in the fiscal court, alleging that the money was about to be drawn out under the above orders, that these orders were void and beyond the power of the fiscal court, and an injunction was obtained restraining the county treasurer from paying out any money under the orders. After this had been done, the defendants to the appeal moved the court to require the appellant to elect whether it would prosecute its appeal from the first order or the second. The court sustained the motion, and, the appellant refusing to elect, the court thereupon dismissed the appeal on account of appellant's refusing to elect, and also because the appeals were prematurely taken. He also discharged the injunction. From this judgment appellant has appealed to this court.

There was no misjoinder of causes of action. The first order appropriated a certain sum of money to be spent according to the directions of each magistrate, and the second order allowed each magistrate $3 a day for each day's work done by him in supervising and directing the work in his respective district in constructing and maintaining the county roads. The two orders so entered separately on the order book were made on the same day, and are part of the same plan. The money is to be spent by the magistrates under one order, and their compensation for spending the money and the way they are to spend it are determined by the other order. It would be impossible to carry out the second order without the first, and the first would be meaningless without the second; for without the second it cannot be told in what way the money was to be spent which was appropriated by the first order. There was, therefore, no misjoinder in taking one appeal from the two orders. Nor can it be maintained that the orders are not final. They appropriate money, and direct how it shall be paid out. They are, in substance, contracts by the fiscal court with each of the magistrates by which they are employed to supervise and direct the work in their respective districts in constructing and maintaining the county roads at $3 a day for not exceeding 50 days for the year 1903 and each year thereafter. If this was not a contract which the fiscal court could...