Jefferson County ex rel. Coleman v. Chilton

• Decision Date: 16 December 1930
• Citation: 33 S.W.2d 601,236 Ky. 614
• Parties: JEFFERSON COUNTY ex rel. COLEMAN, Co. Atty., et al. v. CHILTON. COMMONWEALTH et rel. CAMMACK, Atty. Gen., v. JEFFERSON COUNTY et al. CHILTON v. SAME.
• Court: Kentucky Court of Appeals

33 S.W.2d 601

236 Ky. 614

JEFFERSON COUNTY ex rel. COLEMAN, Co. Atty., et al. v. CHILTON.

COMMONWEALTH et rel. CAMMACK, Atty. Gen., v. JEFFERSON COUNTY et al.

CHILTON v. SAME.

Court of Appeals of Kentucky

December 16, 1930

Appeals from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Jefferson County, on the relation of Harris W. Coleman County Attorney, and others, against J. Matt Chilton, in which the Commonwealth, on the relation of J. W. Cammack Attorney General, intervened. From the judgment, the County the Commonwealth, and defendant named separately appeal.

Reversed on each appeal, with directions to dismiss the action without prejudice.

Harris W. Coleman, of Louisville, for Jefferson County.

Benjamin F. Washer and Walter Lapp, both of Louisville, for J. Matt Chilton.

J. W. Cammack, Atty. Gen., and M. B. Holifield, Asst. Atty. Gen., for the Commonwealth.

WILLIS J.

J. Matt Chilton was county attorney of the county of Jefferson from January 1, 1918, until June 27, 1927. Thereafter an action was instituted against him by the county to recover money alleged to have been received by him in excess of $5,000 per year as compensation for his official services. Whilst that suit was still pending, this action was instituted under the Declaratory Judgment Act (Civ. Code Prac. § 639a--1 et seq.) for a declaration of rights between the parties. Chilton entered his appearance to the action and joined in the request for a declaration of rights. The commonwealth of Kentucky was not a party to the original action, but appeared in the present suit by an intervening petition asking for a declaration of the right of the state to recover from Chilton its share of the alleged payments of salary, commissions, and fees in excess of the constitutional limit. It sought also to obtain a declaration of the relative rights of the state and county respecting the prosecution of the action, and the ultimate participation in any recovery that might result.

Six questions were propounded to the circuit court by the county and the commonwealth, and they were:

"1--Is the plaintiff, Jefferson County, entitled to recover from the defendant all sums of money collected by him in his official capacity as County Attorney, during the years 1918 to 1927, both inclusive, over and above Five thousand ($5,000) dollars per annum?

2--If the answer to the above is that the defendant is not entitled to retain any compensation in excess of Five thousand ($5,000) dollars, then is it necessary to make the Commonwealth of Kentucky a party to a proceeding to recover said excess, or conversely has the Commonwealth of Kentucky any interest in any excess which the defendant might have received during his term of office aforesaid?

3--If the defendant is not entitled to retain the excess over and above Five thousand ($5,000) dollars, then is the burden of proof upon the plaintiff to prove the excess or was the relation of defendant to plaintiff such as to require the defendant to account to plaintiff and therefore the burden be on the defendant?

4--Is there any statute of limitations which applied to a claim of the plaintiff to recover said excess fees mentioned above from the defendant? If so, what is the period of limitation?

5--If there is a statute of limitations which applied then does it begin to run from the time defendant received the excess or does it only begin from time demand for an accounting was made on the defendant by plaintiff and refused by defendant?

6--If the Commonwealth of Kentucky has an interest in any of the excess fees which were received by the defendant, is this interest confined to the percentum received by the County Attorney for the collection of State revenue, or does it include the percentum received by the County Attorney for the collection of county revenue?"

The chancellor, in a written opinion, answered the questions propounded to the effect that Mr. Chilton was liable to Jefferson county alone for all compensation in excess of $5,000 per year received by him for official services as county attorney, that the five-year statute of limitation applied, and commenced to run at the end of each calendar year as against the amount accruing that year, and that the burden of proving excess payments rested upon the county.

The county, the commonwealth, and Mr. Chilton each has prosecuted an appeal. The county complains because of the ruling respecting limitations and the burden of the proof; the commonwealth is dissatisfied because it was denied the right to participate in the litigation, or to share in any recovery that might result. Chilton objects to the ruling that he is responsible at all, insisting that section 246 of the Constitution is not self-executing, and that no statute authorizes the action against him, or regulates the procedure.

After the oral argument in this court the parties were given an opportunity to file briefs upon the question raised by the court upon its own motion whether the Declaratory Judgment Act warranted an independent action for a declaration of substantive rights and procedural rules for the government of another case then pending in a court of first instance which possessed ample power to decide all the questions raised. Counsel for Chilton alone have responded and argue in favor of the jurisdiction of this court, and the propriety of its exercise in this instance.

The argument is based mainly upon the second and the fourth sections of the act (Civ. Code Prac. §§ 639a--2, 639a--4). Taking them up in inverse order, the fourth section declares that "further relief, based on a declaratory judgment, order or decree, may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief, either in the same proceeding wherein the declaratory judgment, order or decree, was entered, or, in an independent action." Obviously that provision authorizes and provides the manner of obtaining additional relief that may be rendered necessary by a declaratory judgment. No such judgment has been rendered, and that section has no application to an original action for a declaration of rights. It is confined by its terms to supplemental proceedings subsequent to a decree or other declaration under the act, and for further relief thereunder.

The part of the second section of the act deemed applicable is the provision that "any person *** whose rights are affected by statute, municipal ordinance, or other government regulation *** may apply for or secure a declaration of his rights or duties." Plainly there is no such case here. The constitutional limitation on the amount of salary is the basis of the right claimed by the county and the commonwealth, but the cause of action asserted rests upon the alleged receipt of money as compensation to which the officer was not entitled. The action to recover the money presents an opportunity to raise and have determined every question that could be debated in a proceeding of this character.

It is true the purpose of the Declaratory Judgment Act was and is to guide parties in their future conduct to avoid useless litigation. If an actual controversy exists, and that controversy is of the justiciable character necessary to meet the demands of the act, the remedy may be invoked.

But the act was not designed, and is not suitable, for the determination of the procedural rules, or the declaration of the substantive rights involved in a pending suit. Such decisions and declarations must be made in the first instance by the court whose power is invoked and which is competent to decide them.

Every question submitted to the court can be decided by the trial court, in the original action, with a right of review in this court after final judgment in the trial tribunal. The jurisdiction of this court is appellate (section 110, Constitution), and no review is allowed until a case is finally decided, except in certain special instances not applicable here or necessary to note.

The first inquiry addressed to the court amounts simply to whether the petition in the other case, which is not exhibited, states a cause of action. A demurrer to the petition would test that very issue. The second question can be settled by a special demurrer because of a defect of parties. If the commonwealth prefers to do so, it is at liberty to apply to the court where the action is pending to permit it to be made a party. If aggrieved by any ruling of the court, it then can appeal. The third question relates to the burden of proof. The proper tribunal to determine that is the one that tries the case. It is sometimes a question of difficulty, and may be varied by the incidents of the case, the admissions or denials of the pleadings, and the facts developed. But the trial court can determine it. A decision of these questions on the brief statement of the general issues would afford no relief from labor or difficulty. That burden would rest upon one or the other party and is unavoidable in a lawsuit of this character. There is no short cut to avoid labor or to reach a right result in such a case. So far as the statute of limitations is concerned, it may be invoked or waived, and the trial court is accustomed to dealing with questions of that nature. An error of the trial court might impose useless labor, but that is an incident inherent in the very nature of judicial action.

Not one of the provisions of the Declaratory Judgment Act contemplates an action to determine procedure or to predetermine the decision of a trial court on a question properly presented to it. Litigation is already precipitated and pending, and the decision in this case would not prevent it or hasten its determination.

The...