Clark, et al. v. Logan County, et al.

• Citation: 138 Ky. 676
• Court: Court of Appeals of Kentucky
• Decision Date: 07 June 1910
• Parties: Clark, &c. v. Logan County, &c.

138 Ky. 676

Clark, &c. v. Logan County, &c.

Court of Appeals of Kentucky.

June 7, 1910.

Appeal from Logan Circuit Court.

W. P. SANDIDGE, Circuit Judge.

Judgment for plaintiffs and defendants appeal and plaintiffs prosecute a cross appeal. — Affirmed on cross appeal and reversed on original appeal.

BROWDER & BROWDER and S. R. CREWDSON for appellants.

SELDEN Y. TRIMBLE, R. W. DAVIS, JOHN S. RHEA and E. J. FELTS for appellees.

OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER.

At the regular election held in November, 1897, J. W. Clark was elected county judge of Logan county for a term of four years beginning in January, 1898. In November, 1901, he was re-elected for another term beginning January, 1902. He served both terms and retired from office in January, 1906. On January 1, 1898, he executed bond with Rowland Clark, George T. Clark, and T. C. Clark as sureties. On December 28, 1899, he executed bond with the same sureties. On January 1, 1902, he executed bond with T. C. Clark and George T. Clark as sureties. On January 1, 1904, he executed bond with Roy Clark, Rowland Clark, and George T. Clark as sureties. The condition of the first bond was that J. W. Clark would faithfully discharge the duties of judge of the county court of Logan county, Ky., and would truly account for any and all moneys coming into his hands as such county judge. The condition of the second and third bonds was the same as the first. The condition of the last bond was that J. W. Clark would faithfully discharge all the duties of the office of judge of the Logan county court. Logan county brought this action on September 13, 1906, to recover of J. W. Clark and his sureties about $12,000. Among the items sued for were the following: First, excess salary of $700, which it is claimed was paid J. W. Clark contrary to law; second, eight years' salary as commissioner of the poorhouse, at $25 per year, amounting to $200; third, $500 allowed J. W. Clark in 1905, for his services as courthouse commissioner; fourth, $100 allowed J. W. Clark in 1902 for signing courthouse bonds. The balance of the sum sued for was made up of various sums, which it was charged were placed in J. W. Clark's hands as commissioner of the poorhouse, commissioner of the courthouse, and in other capacities, and which he failed to account for. Upon submission of the case judgment was entered against J. W. Clark, George T. Clark, and Rowland Clark for the sum of $387.50; against J. W. Clark and George T. Clark for the sum of $531; against J. W. Clark, George T. Clark, Rowland Clark, and Roy Clark, for $743.64. All costs were adjudged against the defendants, and each of the above sums was to bear interest from the date of the judgment. From this judgment J. W. Clark and his sureties have appealed, and Logan county has prosecuted a cross-appeal.

Among the pleas interposed by the defendant J. W. Clark was the statute of limitations. We conclude that the five-year statute applies. It is simply a case arising upon an implied contract on the part of J. W. Clark to pay back to the county that which he had no right to receive, and is therefore governed by section 2515, Ky. St. (Russell's St. sec. 224.)

We shall first consider the question of salary. The salary of the county judge was fixed in October, 1897, at $500 per year. J. W. Clark drew that salary for the year 1898. In October, 1898, an order was made by the fiscal court fixing the salary of the county judge at $600. This salary J. W. Clark drew for the remainder of his first term and also for the four years of his second term. As he had been elected to office in 1897, and as the order of October, 1898, changed his salary after his election, it follows that the order was inoperative during his first term. Const. sec. 161; McNew v. Commonwealth, 123 Ky. 115, 93 S. W. 1047, 29 Ky. Law Rep. 540; City v. Wilson 99 Ky. 598, 36 S. W. 944, 18 Ky. Law Rep. 427; McCracken County v. Reed, 125 Ky. 420, 101 S. W. 348, 31 Ky. Law Rep. 31; Spalding v. Thornbery, 128 Ky. 533, 103 S. W. 291, 31 Ky. Law Rep. 738.

While the order of 1898 was invalid in so far as it fixed J. W. Clark's salary for his first term, it was not invalid so far as his second term was concerned. It did not change the county judge's salary after his election for a second term. We therefore conclude that J. W. Clark had the right to draw the increased salary during his second term. He had no right, however, to draw the increased salary for the years 1899, 1900, and 1901.

The next question is: Was any part of the salary illegally paid him paid more than five years prior to the institution of this action on September 13, 1906? Upon this question the burden of proof was upon J. W. Clark. We think he showed that the salary of 1899 and 1900 was paid more than five years prior to the institution of this suit. He failed to show, however, when his salary for the year 1901 was paid. We therefore conclude that the salary of 1901 was paid him within less than five years next before the institution of this suit. That being the case, Logan county was entitled to recover on this item the sum of $100, with interest.

The next allowance to be considered is that of $25 per year paid to J. W. Clark for his services as commissioner of the poorhouse. In this connection it is argued by counsel for appellants that this allowance was for extra services not devolving upon J. W. Clark as county judge; and it is claimed that such an allowance is authorized by the case of Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696, 32 Ky. Law Rep. 897.

In that case, Rogers, who was county attorney, was appointed commissioner to settle with the sheriff. It was held that the compensation allowed Rogers was for extra services outside of and independent of his official duties, and that there was nothing in the statutes which prevented his employment. The case before us does not come within the rule there laid down. Section 1884, Ky. St. (...