Crick v. Rash

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: Crick v. Rash, 190 Ky. 820, 229 S.W. 63 (Ky. Ct. App. 1921)
• Decision Date: 11 March 1921
• Parties: CRICK, COUNTY JUDGE, ET AL. v. RASH.

229 S.W. 63

190 Ky. 820

CRICK, COUNTY JUDGE, ET AL. v. RASH.

Court of Appeals of Kentucky.

March 11, 1921

Appeal from Circuit Court, Hopkins County.

Suit by James R. Rash against W. W. Crick, County Judge, and others. From judgment for plaintiff, defendants appeal. Affirmed in part, and reversed in part, with directions to make modifications.

Chas I. Dawson, Atty. Gen., W. T. Fowler, Asst. Atty. Gen., Hobson & Hobson, of Frankfort, and Letcher R. Fox, of Madisonville for appellants.

J. F Gordon, M. K. Gordon, Chas. G. Franklin, V. Y. Moore, and W. H. Yost, all of Madisonville, for appellee.

Geo. B. Winslow and John J. Howe, both of Carrollton, amicus curiæ.

THOMAS J.

The appellant Crick (one of the defendants below) is the county judge of Hopkins county, and he and the other appellants, who were also defendants below, as members of the fiscal court of the county, with other officers and persons deemed necessary parties, were sued below in this action by the appellee and plaintiff below, James R. Rash, a citizen and taxpayer of the county, to obtain an injunction restraining defendants from issuing, selling, or disposing of any part of a $500,000 road bond issue which had been authorized by an election in the county wherein a majority of the voters indorsed the proposition, upon the alleged grounds of: (1) Irregularities in calling the election (which was held under the provisions of section 157a of the Constitution); and (2) because of alleged fatal irregularities in the orders of the fiscal court made and entered after the election. A further injunction was asked restraining the fiscal court from carrying into execution a contract which it had entered into of record with Caldwell & Co., a firm of brokers in Nashville, Tenn., wherein the fiscal court agreed to pay the firm 5 per cent. commission for the sale by it at par, with accrued interest, of $200,000 of the proposed bonds, the commission to be paid out of the general funds of the county, and not from the proceeds of the sale; and the fiscal court was also asked to be enjoined from turning over, advancing, or lending to the State Highway Commission, as an agent of the commonwealth, and for the use and benefit of the latter, any part of the proceeds of the bond issue which the fiscal court had proposed and offered to do to the extent of $150,000, as provided in section 11 of chapter 17, Acts 1920, p. 76, which section will be later referred to, and such parts thereof as are pertinent to the questions raised will be inserted in this opinion. A demurrer was filed to the petition by defendants, which the court overruled, and, they declining to plead further, the court sustained the motion for the injunction in toto and granted to plaintiff all the relief he asked, and this appeal calls in question the soundness of that judgment.

We could, with propriety, dismiss all of the objections to the validity of the election and to the orders of the fiscal court made thereafter as alleged and relied on in the petition under grounds (1) and (2) above, since none of them is even mentioned by counsel for appellee in their brief, much less are they relied on for a reversal of the judgment, and it would therefore appear that each of them is abandoned on this appeal, if, indeed, they were ever urged with serious earnestness. As alleged in the petition, they are numerous, under each of the numbered grounds (1) and (2), and most of them are so highly technical as to demonstrate their immateriality. The principal objections as to the validity of the election under ground (1) are: (a) That the petition signed by the requisite number of citizens asking for an order by the county judge calling the election was not filed at a regular term of the county court, nor did it lie over from one term of that court till the next one before the election was called; (b) that the election was not held upon the regular November election day, but on a special day named in the order; (c) that the proposition to issue the bonds received on the day of the election only a majority of the votes cast therein, and not two-thirds thereof, as plaintiff claims was necessary; and (d), that the petition asked for an issue of the bonds "for the purpose of building roads and bridges," while the order of the court calling the election stated that the money raised from the sale of the bonds should be used for the construction or reconstruction of roads, omitting the use of the word "bridges." As heretofore stated, many other objections, equally as unmeritorious as the one last mentioned, are stated in the petition, and to undertake to set out and dispose of each of them could not possibly be of any service to any one and would lengthen this opinion far beyond proper limitations.

Objection (d) might be effectually answered by saying that enough appears in the order calling the election to show that the intention was to use the proceeds of the bonds, if voted, in constructing or reconstructing "roads and bridges"; but, if the word "bridges" was not referred to therein, it would be construed to be included in the term "roads," so that, when the court in calling the election directed that the proceeds of the bonds to be voted should be used for the purpose of constructing or reconstructing roads, bridges were necessarily included. Objection (c) has been denied by this court in a number of cases, some of the latest of which are Cleary v. Pieper, 169 Ky. 434, 184 S.W. 4, Houston v. Boltz, 169 Ky. 640, 185 S.W. 76, Denton v. Pulaski County, 170 Ky. 33, 185 S.W. 481, and Armstrong v. Fiscal Court of Carter County, 169 Ky. 433, 184 S.W. 4, wherein this court held that an election for the issual of road bonds held under the authority conferred by section 157a of the Constitution did not require more than a majority of the votes cast upon the proposition in order to confer the authority upon the fiscal court to issue them, and that it was not necessary for the proposition to receive two-thirds of the votes cast as is required in elections held under section 157 of that instrument. That objections (a) and (b) are without merit is shown by this court's opinions in the cases of Walsh v. Asher, 163 Ky. 379, 173 S.W. 808; Albright v. Ballard, 164 Ky. 747, 176 S.W. 185; Finley v. Rose, 165 Ky. 408, 177 S.W. 433, and Bowman v. Fayette County, 168 Ky. 524, 182 S.W. 633.

Under ground (2) relied on in the petition in support of the injunction, the principal objection is that the fiscal court changed its orders a number of times after the entry of a prior one and after the adjournment of the court, which orders related to various administrative matters pertaining to the sale of the bonds, such as the appointment of commissioners for the handling of the proceeds, the roads upon which such proceeds or portions thereof should be expended, and other matters of similar nature. It is insisted that the fiscal court, being one of record, had no jurisdiction to change any of such orders after they had been made and after the term of court at which they were made was adjourned. But a sufficient answer to all this is that in the cases of Commonwealth v. Beauchamp, 136 Ky. 227, 124 S.W. 284, Crittenden County Court v. Shanks, 88 Ky. 475, 11 S.W. 468, 11 Ky. Law Rep. 8, and Scott v. Forrest, 174 Ky. 672, 192 S.W. 691, we held that the orders of the fiscal court as are here involved were legislative in their nature rather than judicial, and that they were subject to be revoked, modified, or altered at a subsequent term of the court, provided such modification, alteration, or renunciation did not affect previously acquired rights of any one who acted upon the faith of their original entry.

The objections referred to are the only ones urged against the validity of the issuance of the bonds, even remotely or faintly possessing merit, from which it results that the court erred in overruling the demurrer to that part of the petition seeking to enjoin the fiscal court from issuing the bonds pursuant to the election, and the injunction to that extent should not have been granted.

This brings us to a consideration of that part of the petition seeking to enjoin the fiscal court and Caldwell & Co. from executing, or carrying out in any manner or to any extent the contract for the sale of $200,000 of the voted bonds for a commission of 5 per cent. of the gross proceeds of the sale, to be paid out of the general funds of the county. The rule universally applicable to and circumscribing the power and authority of fiscal courts and other governing authorities of counties is that they can exercise no power or authority which is not expressly conferred upon them by the Constitution or a statute, and such implied powers as are imperatively necessary to execute those so expressly conferred. This rule applicable to the powers and authority to such subdivisions of the state is so thoroughly fixed in the jurisprudence of this country as that we scarcely deem it necessary to fortify the statement with authorities. Some of the later cases from this court supporting the doctrine are Breathitt County v. Hammonds, 150 Ky. 502, 150 S.W. 661, 42 L.R.A. (N. S.) 836, Ann.Cas. 1914D, 514, Russell County v. Hill, 164 Ky. 360, 175 S.W. 988; Mills v. Lantrip, 170 Ky. 81, 185 S.W. 514, and Riddell v. Boone County, 183 Ky. 77, 208 S.W. 323.

Section 4307 of the Kentucky Statutes (1915 Edition) prescribes that the character of bonds involved in this case shall be issued and sold from time to time by the fiscal court; i. e., the duty is imposed by that section on the fiscal court not only to issue such bonds, but to sell them after they are issued. It is insisted, however, that neither the county judge nor any other member of the court is required by that section to perform such...