Breathitt County v. Hagins

• Decision Date: 18 February 1919
• Citation: 207 S.W. 713,183 Ky. 294
• Parties: BREATHITT COUNTY v. HAGINS.
• Court: Kentucky Court of Appeals

207 S.W. 713

183 Ky. 294

BREATHITT COUNTY v. HAGINS.

Court of Appeals of Kentucky.

February 18, 1919

Appeal from Circuit Court, Breathitt County.

Action by O. A. Hagins against Breathitt County. From a judgment for plaintiff, defendant appeals. Reversed and remanded, for proceedings consistent with opinion.

South Strong and Chester Gourley, both of Jackson, and O. H Pollard, of Lexington, for appellant.

E. E Hogg, of Booneville, T. T. Cope, of Jackson, and A. F. Byrd of Lexington, for appellee.

HURT J.

The county of Breathitt erected a bridge over a branch of the Kentucky river which flows through the city of Jackson, which is the capital of the county. For a number of years the fiscal court of the county leased the right to collect tolls from persons and vehicles, using the bridge, to the highest bidder, and the sums paid by the lessees were turned into the treasury of the county and expended by its fiscal court in defraying the necessary expenses of the county. On the 12th day of November, 1912, it was held, by a decision of this court in the action of Breathitt County v. Hammonds et al., 150 Ky. 502, 150 S.W. 661, 42 L. R. A. (N. S.) 836 Ann. Cas. 1914D, 514, that the county of Breathitt did not have the right to require the payment of tolls by the individuals of the public, who used the bridge. Thereafter the appellee, O. A. Hagins, instituted this action against the county to recover from it the tolls, which he had paid for the use of the bridge during a great number of years. The county denied its liability, and also interposed a plea of the five-year statute of limitation. Before answering, however, the county demurred generally to appellee's cause of action, as stated in his petition, but the demurrer was overruled. The evidence upon the trial proved that the fiscal court, assuming the right to require the payment of tolls for the use of the bridge by the public, made orders directing the leasing of the privilege of collecting tolls for the use of the bridge, and entered into contracts with the lessees, who paid the sums agreed upon between them and the fiscal court for the right to collect tolls into the county treasury, and presumably were thereafter expended by the county in the conduct of its fiscal affairs. The custodians of the county's funds were not made parties to the suit, nor the lessees of the bridge, who collected the tolls. At the conclusion of the evidence offered upon the trial, the county moved the court to direct a verdict in its favor, but this motion was overruled. Instead, the court directed the jury to return a verdict for the sum of $528 in favor of appellee, which it did, and a judgment was rendered accordingly. From the judgment the county has appealed.

It is not questioned that, if appellee had a right of recovery at all, the judgment was for the proper amount, and the question of a right to sue the county and to recover upon the claim made by appellee was presented by his demurrer to the petition and upon his motion for a directed verdict. A county is only a quasi corporation, and is distinguishable, so far as liabilities are concerned, from a private or municipal corporation, as a city or town. It is a political division of the state, and a division for the purposes of government, and its activities are nearly, if not quite, all expended in matters of government, and in administering the sovereignties of the state, and for that reason there are only a few things for which a citizen may maintain a suit against the county. Being a portion of the state for governmental purposes, a county cannot be sued, unless there is a statute which expressly authorizes such an action to be maintained, or the right to do so, can be necessarily implied from an express power given, or it may be sued upon an express contract which the county has authority to make. In accordance with this doctrine it has been held that an action cannot be maintained against a county for injuries sustained from neglect of its officials in keeping public roads and bridges in repair, nor for damages suffered by prisoners on account of defective, unhealthy jails, nor for defects in the buildings of the county, which cause injuries, although the negligence of the officials of the county was gross; nor...