Farmer v. Marr
| Decision Date | 21 April 1931 |
| Parties | FARMER v. MARR et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.
Action by Dallas P. Farmer, Jr., against Joseph Marr and another. From a judgment of dismissal, plaintiff appeals.
Affirmed.
W. G Dearing, of Louisville, for appellant.
Harry Tincher and Harris Coleman, both of Louisville, for appellees.
The question presented by this appeal is the right of the two county commissioners to appoint and fix the salary of the "commissioners of the poorhouse and premises of a county by virtue of section 1850, Ky. Statutes," under the particular facts of this case.
The county judge of Jefferson county, at all times, has assumed and exercised the authority to appoint a person or persons to discharge the duties of this position, and as receiver of the funds required for "the care, treatment and maintenance of the inmates of the poorhouse provided by the county for that purpose."
Acting under such an appointment, the appellee Joseph Marr (at a salary of $75 per month) and four others, with S. O Willoughby, as secretary, during the term of County Judge Fox, have been discharging the duties of commissioners of the poorhouse and premises and receiver of Jefferson county, the fiscal court without objections, making appropriations therefor, including the salaries of the incumbents.
The fiscal affairs of Jefferson county have been administered by the county judge and three commissioners, constituting the fiscal court, beginning in the year 1918. On June 20, 1930 the fiscal court was composed of Henry I. Fox, county judge, Ben L. Bruner, Frank J. Humbert, and Ben F. Voght, commissioners. Commissioner Bruner, in open court, on that day entered a motion which was seconded by Frank J. Humbert, to declare vacant the office of Marr as one of the commissioners of the poorhouse and premises and receiver. Commissioners Bruner and Humbert voted in the affirmative; Judge Fox and Commissioner Voght voted in the negative. On August 22, 1930, Commissioner Bruner entered a motion to declare vacant the office of Marr, reciting that the fiscal court in session on the 20th day of June, 1930, had voted on a motion to declare vacant, as to the appellee Marr, the office of commissioner of the poorhouse and premises and receiver, which resulted in a deadlock--or tie vote. A vote was taken on this motion; Commissioners Bruner and Humbert again voted "Yes" and Judge Fox and Commissioner Voght voted "No." The motion was declared lost. On August 20, 1930, Commissioner Bruner entered a motion to declare the appellant elected commissioner of the poorhouse and premises and receiver, in the place of Joseph Marr, at a salary of $150 a month, and that his bond be fixed at $1,000. On this motion Commissioners Bruner and Humbert voted for it; Judge Fox and Voght against it.
On the 19th day of September, 1930, or more than fifteen days after the session of the court held on August 29, 1930, Commissioner Bruner entered a motion which was seconded by Commissioner Humbert, to declare the appellant elected and to fix his salary at $150 a month, and his bond at $1,000, under the provisions of section 3927, Ky. Statutes. A vote was taken on this motion, Bruner and Humbert voting "Yes," Fox and Voght voting "No," Bruner and Humbert insisting that Judge Fox had no right to vote on the motion.
Subsequently, the appellant appeared in court and offered to qualify as commissioner of the poorhouse and premises and receiver and asked to be permitted to take the oath of office and execute bond in the sum of $1,000 as such commissioner and receiver. He tendered a bond conditioned as required by law, signed by himself and National Surety Company as his surety. Judge Fox refused to permit him to qualify and to accept and approve his bond. Thereupon, on the 30th day of September, 1930, the appellant filed this action against the appellees Marr and County Judge J. I. Fox, in which he sets out the orders of the fiscal court alluded to above, and the procedure of the fiscal court and its action relative thereto, together with the action of the appellee Henry I. Fox, as county judge of Jefferson county. He averred that, by virtue of the above-described procedure of the two commissioners, he was elected and entitled to qualify as such official or appointee of the fiscal court. He sought therein a mandamus against Judge Fox "commanding him to permit the fiscal court to approve his bond and to permit him to qualify by taking the oath and executing bond for the faithful performance of his duties as such commissioner and receiver, and that he be declared the duly elected commissioner of the poorhouse and premises and receiver of all monies for said institution."
Marr and Fox filed separate answers, each containing two paragraphs. The first in each of them is a traverse. The second is in the nature of an estoppel. For estoppel, it is in substance alleged that Marr had been acting as commissioner, and that the fiscal court had treated him as the duly elected officer, allowing and paying his salary out of the funds of the county and approving and allowing the claims presented for moneys expended by him as such commissioner in the superintendence and maintenance of the poorhouse and its inmates.
The appellee Fox, in the second paragraph of his answer, further alleged that the power of appointment to fill the position in controversy is conferred by the statutes on the fiscal court; that the fiscal court at no time had exercised the power so conferred on it, nor determined whether there should be one or more commissioners and receivers of the poorhouse and premises; that "it is necessary for the court to determine what money, if any, be paid to each commissioner, and to fix the salary to be paid."
The appellant filed demurrers to the second paragraphs of the answers of both Marr and Fox. The court overruled them. The appellant objected and excepted and declined to plead further. Judgment was entered dismissing his petition, to which he saved an exception and prayed an appeal. This appeal was taken from that judgment.
The appellant contends that, by virtue of section 1850, Ky. Statutes, as construed by this court in Kirchdorfer v. Tincher et al., 204 Ky. 366, 264 S.W. 766, 40 A. L. R. 801, the motion to declare the office or position of appellee Marr vacant, having been voted on as we have indicated, created a deadlock or tie vote, which was continued for a period of not less than fifteen days thereafter, and that then a majority of the commissioners had the power to break the deadlock or tie vote and to cause to be entered on the "minutes of the board of commissioners an order reciting the facts as to such deadlock or tie vote and the question" on which the same had occurred and existed, and that a majority of the commissioners was vested with the power to declare the vacancy. It is urged that the action of the two commissioners constituted a majority of the fiscal court within the purview of the statute supra and had the right to break the deadlock or tie vote, and that the judge of the county court was without legal right to vote on such motion. It is insisted that the proceedings of the two commissioners relating to the declaring vacant of the office or position of the appellee Marr thereby created a vacancy, and that the proceedings to fill that vacancy, as we have herein set out, constituted the appointment or election of appellant to fill it and fixed his salary.
The contention that the county court was without jurisdiction to appoint or to elect the appellee or any other person or persons to the position involved is correct. The authority to make the appointment or election is, by statute, vested, in the fiscal court. It was so determined and held by this court in Silbersack v. Kraft, 194 Ky. 591, 240 S.W. 392, 393. We there pointed out that so much of section 3925, Ky. Statutes, as empowered the county court to appoint a commissioner for the poorhouse and receiver was repealed by section 1840, Ky. Statutes. A history of the two sections was recited in that case, and it is unnecessary to repeat it in the present one.
The fiscal court is a creature of the Constitution. Section 144 of the Kentucky Constitution creates it, and provides that it may consist of the county judge and the justices of the peace, or the county may have three commissioners to be elected from the county at large, who, together with the judge of the county court, shall constitute the fiscal court. A majority of the members of this court constitutes the court for the transaction of business. If a city for county governmental purposes is separate from the remainder of the county, such commissioners may be elected from the part of the county outside of the city. While this section of the Constitution creates the fiscal court and provides who shall constitute it, it leaves to the General Assembly the authority to define its powers. Gross v. Fiscal Court of Jefferson County, 225 Ky. 641, 9 S.W.2d 1006. The county judge is a member of the court and has the same powers as...
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