Gay v. Haggard

• Citation: 118 S.W. 299,133 Ky. 425
• Parties: GAY v. HAGGARD, Supervisor of Roads.
• Decision Date: 21 April 1909
• Court: Court of Appeals of Kentucky

118 S.W. 299

133 Ky. 425

GAY v. HAGGARD, Supervisor of Roads.

Court of Appeals of Kentucky.

April 21, 1909

Appeal from Circuit Court, Clark County. "To be officially reported."

Action by David S. Gay against D. S. Haggard, Supervisor of Roads of Clark County. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Beckner & Beckner and Jouett & Jouett, for appellant.

Pendleton Bush & Bush and J. Smith Hays, for appellee.

O'REAR J.

Appellant a citizen and taxpayer of Clark county, brought this suit on his own behalf, and the behalf of all other taxpayers of Clark county, against appellee Haggard, as supervisor of roads of Clark county, for mandamus, requiring the appellee to comply with the statute concerning the letting of work on the public roads of the county at competitive bidding instead of private contract. It is charged that the latter course was being pursued as to all the roads of Clark county. A general demurrer was sustained to the petition, and the action was dismissed. We are advised in briefs of counsel that the learned circuit judge based his judgment upon a construction of the statute, which will presently be adverted to; but appellee here contends that there are certain technical defects in the petition which alone are sufficient to sustain the lower court's ruling. He also contends that the construction of the statute, which seems to have been the real purpose of the suit, as applied by the court, is correct. The petition does not expressly ask for the issuance of the writ of mandamus, although after stating the alleged dereliction of the defendant, a public officer, it asks that he be compelled to comply with the law, and be required to advertise the work on the roads to be let, and to let it, at public competitive bidding.

While at the common law prayer for process was the approved practice, under our Code that is not necessary. Upon the allegation of sufficient facts, process which is suitable to the relief demanded may be issued by the clerk where the law allows him to issue it, or may be awarded by the court. There was not a notice by the plaintiff of the motion for mandamus in this case. Appellee insists that, until there was such notice, the action of the trial court in ruling upon the demurrer to the petition was not a final order, although the petition was dismissed by the judgment; that the Code contemplates in this proceeding that the granting or refusing the writ of mandamus is the final order of the case; and that neither can be done until there is a motion for the mandamus. Under our Code of Practice the writ of mandamus is a statutory writ, and is granted as a matter of right in a proper case to a party aggrieved. Maddox v. Graham & Knox, 2 Metc. 56. The trial is summary. Section 475, Civ. Code Prac. By section 474, Civ. Code Prac., it is provided that, except in writs used by the court in enforcing its judgments, the writ of mandamus shall be obtained by motion as provided in title 10, c. 5, Code (applying to the trial of motions upon notice), and that "the applicant shall file a petition wherein he shall state the cause and ground of his application before giving notice of his motion; to which the party against whom the mandamus is sought shall file a demurrer or answer, at or before the time fixed for making the motion." Ordinarily a suit is begun by filing the petition in the clerk's office, and causing a summons to be issued upon it, returnable to the next term or within so many days after service. But in this proceeding the summons is supplied by the notice, the petition can be filed at any time before the notice, and the court may after the 10 days provided in the notice, or after the appearance of the defendant, summarily try the motion. When the defendant appeared and filed his demurrer, the office of the notice was dispensed with. It was no longer necessary to notify him to do what he had already done, or to apprise him of a purpose which he was then combating in court. Before the motion for the writ was made, the court held the petition to be insufficient to support such motion, and dismissed the plaintiff from court. That was an effectual denial of the writ, and is a final order in the case from which an appeal lies.

The petition does not allege that appellant will sustain special damage, or that anybody will sustain damage by reason of the alleged conduct or failure of the defendant to comply with the statute as to letting the work on the roads. There is no express provision of the statute in this state making it the duty of any public officer to prosecute actions for mandamus against derelict road supervisors. The duties of the latter officer appertain to a subject that directly concerns the public at large--the maintenance of the public roads of the counties. It affects them not only in their convenience, but as taxpayers. The rule of practice concerning who may prosecute the suit is well stated in 26 Cyc. 401, thus: "The true distinction seems to be that, where the right or duty in question affects the state in its sovereign capacity as distinguished from the people at large, the proceedings must be instituted by the proper public officer, but, if the general public as distinguished from the state in its sovereign capacity is affected, any member of the state may sue out the writ." Such was the practice applied and approved in the case of Leslie County v. Wooten, 115 Ky. 850, 75 S.W. 208. The principle in another aspect is more frequently encountered in cases where one citizen and taxpayer on behalf of others of the class brings an action to restrain the levy of a tax, or other excessive ministerial act. The cases are numerous and familiar. The right of a single taxpayer to maintain such an action is no longer in doubt. It would seem to follow that where a ministerial act was required by law to be done, which if done would inure to the benefit of the public, the tardy official might be set in motion and compelled to act by a suit by one of the public affected, suing on his own and on the behalf of the others. Nor is it necessary that the plaintiff should show a special interest to be affected by the act. The reason it is public is because all the public are equally affected by it at least theoretically; and, if no one of the public could maintain the suit, none less than all could, which would be practically a denial of the right to sue, for it is scarcely possible that all the citizens of a county or other territory could be got to act together in any matter. Nor do we think it necessary to allege or to show that the public will sustain damage if the act is not done. By the enactment of a statute on behalf of the public creating an office, and providing an incumbent to discharge certain public functions, the Legislature has declared that the act is one beneficial to the public. The phase of the question is not issuable. The public pay the officer for his services. They pay for the work done upon the roads. It will not lie in the official's mouth to say that his performance of a statutory duty is not a matter of concern to the public, or that his neglect of it will not entail any damage upon the public. Nor can he ask that the public be relegated to criminal prosecutions for redress. The public needs roads, not fines. The fines are only one method of enforcing the discharge of official duty to the public; but the availability of that means will not prevent the employment of another that will get what the public are entitled to, and what was the purpose of the legislation in their behalf in that matter.

The petition in this case does not allege that Clark county works its road by taxation. It is argued by appellee that, unless the roads are worked by taxation, there is no authority for the supervisor's letting the work at competitive bidding. Our statutes contemplate several different ways of maintaining our highways. One is the tollgate system, either by a private corporation or by the counties. Another is by the hands allotted to do the work, when overseers are appointed to superintend the work. Another is by taxation or allotment of hands or both. In the last instances a supervisor may be appointed who, under the fiscal court, has charge of the work. There is no provision for the appointment of a supervisor of roads unless the county has elected to keep up its roads in whole or in part by taxation. Section 4313, Ky. St. So, when the petition alleges that the defendant is the...