Jefferson County Fiscal Court v. Grauman

Decision Date06 February 1940
Citation281 Ky. 608
PartiesJefferson County Fiscal Court v. Grauman, County Attorney, et al.
CourtSupreme Court of Kentucky

Appeal from Jefferson Circuit Court.

Edwin C. Willis for appellants.

Lawrence S. Grauman, County Attorney, and Robert L. Sloss, Assistant County Attorney, for appellee.

Before William H. Field, Judge.

OPINION OF THE COURT BY JUDGE PERRY.

Affirming.

The conflicting contentions made by the parties upon this appeal revolve around the question of whether or not the county judge pro tem., appointed by the judge of the Jefferson county court, has the right and authority to serve as a member of the fiscal court when the county judge is absent from his office or is for any reason unable to perform the duties of his office, or, that is to say, is authorized to perform any duty imposed by law upon a member of the fiscal court.

There is no dispute between the parties as to the facts out of which this question of law arises, as appellants' answer expressly admits the allegations of fact contained in plaintiff's petition.

These facts are as follows:

On December 20, 1939, Mark Beauchamp, the duly elected and acting judge of Jefferson county, anticipating his absence from his office on December 21, and for such reason his inability to perform the duties of his office, had an order entered by the Jefferson county court, as authorized by the provisions of section 1059, Kentucky Statutes, appointing Lawrence J. Mackey county judge pro tem. On December 21, the Jefferson county fiscal court met, pursuant to adjournment, when the county judge pro tem., Lawrence J. Mackey, presented to it an attested copy of the order entered on December 20, appointing him county judge pro tem.

The Jefferson county fiscal court is and was at all the times herein mentioned composed in its membership of Mark Beauchamp, county judge, and three county commissioners, James W. Henning, Ben F. Ewing and Joseph Muenninghoff.

At the meeting of the court in question on December 21, there were present the county judge pro tem., Lawrence J. Mackey, and but two of the commissioners, Ben F. Ewing and James W. Henning, the regular county judge and commissioner Muenninghoff being absent.

By the minutes of this meeting, it is shown that upon the motion of Mr. Ewing, seconded by the pro tem. county judge, an order was passed, directing that a third elevator be installed in the fiscal court building and that the sum of $500 be appropriated from the court house fund budget to be expended towards the cost of installing it. Mr. Ewing and the county judge pro tem. voted for and Mr. Henning against the resolution, when the motion was thereupon declared carried by the pro tem. judge.

Whereupon this appeal and petition for a binding declaration of the rights of the parties was brought by the county attorney, and Jefferson county on relation of the county attorney, against the appellants, claiming that the appropriation of $500, attempted to be made by the fiscal court as set forth, supra, was not authorized by law and void.

Plaintiff's contention is that the fiscal court, at this meeting of only two of the three county commissioners and the pro tem. county judge, was not authorized to pass the order appropriating the $500 for installing an elevator in the fiscal court building, for the reason that there was not present at the meeting a majority of the members of the fiscal court, in that the county judge pro tem. has no right or authority, under his appointment by the county judge, to serve as a member of the fiscal court or to participate in its meetings when the county judge is absent, or for any reason is unable to perform the duties of his office, and is not authorized thereby to perform any duty imposed by law upon the Jefferson fiscal court; that for such reason, the two commissioners, Ewing and Henning, present at the meeting did not constitute a majority of its four members and therefore there was neither a quorum present, as required for conducting its proceedings, nor did a majority of a quorum vote for the order attempted to be passed.

This cause coming on to be heard on the joint motion of the parties for a binding declaration of rights, and having been submitted on the petition and answer thereto, the court sustained the appeal and adjudged that the order of the fiscal court, passed on December 21, 1939, was void and that the county judge pro tem. was not, by virtue of his appointment as such, qualified to sit as a member pro tem. of the fiscal court.

Appellants contend that the county judge is, by virtue of his office, a member and presiding officer of the county fiscal court, as provided by section 1847, Kentucky Statutes which is applicable to Jefferson county, since it has adopted the commission form of fiscal court.

The applicable provision of this statute is that:

"Any county * * * so desiring it may have three commissioners * * * who, together with the judge of the county court shall constitute the fiscal court of said county."

Further, appellants insist that in as much as the General Assembly has provided that the overburdened county judge shall have, in each year, a one-month vacation (section 1072a, Kentucky Statutes), obviously the machinery of the county government could not be allowed to "creak to a stop" while he was on his vacation, so it wisely provided that the county judge could appoint a county judge pro tem. (section 1059, Kentucky Statutes), "who shall serve at the pleasure of the county judge. Said county judge pro tem. shall possess all the qualifications required by law of the regular judge * * *. Said county judge pro...

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