Johnson v. The Auditor

• Decision Date: 09 December 1879
• Citation: 78 Ky. 282
• Parties: Johnson v. The Auditor.
• Court: Kentucky Court of Appeals

78 Ky. 282

Johnson v. The Auditor.

Court of Appeals of Kentucky.

December 9, 1879.

APPEAL FROM FRANKLIN CIRCUIT COURT.

W. LINDSAY FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

Appellant, jailer of Henderson county, applied for a mandamus to compel the Auditor to pay him the sum of seventy-six dollars, allowed by the common pleas court for attendance upon the court and for fuel furnished. The court refused to grant the application, and to reverse that ruling the case is brought to this court.

Prior to the election of appellant as jailer he was surety on the revenue bond of the sheriff of Henderson county, who failed to account for the revenue tax with which he was chargeable. For this breach of the bond judgment was rendered in favor of the Commonwealth against the sheriff and appellant as surety, which judgment, to an amount larger than the claim presented here, remains unsatisfied.

The Auditor justifies his refusal to draw his warrant under section 6, article 2, chapter 108, of the General Statutes, which is as follows:

"No money shall be paid to any person in his own right, or as assignee of another, when such person or his assignor is owing the Commonwealth; and such claims, when presented, shall be liquidated and settled by a credit for the amount thereof upon the accounts of the public debtor, so far as may be required to pay the amount; and for any balance due after settling the whole demand of the Commonwealth, payment may be made."

This statute appears to have been intended to apply to "public debtors" whose duty it is to collect and pay over funds to the Commonwealth, and who have failed to discharge the trust; and not to those persons who, without any fault of their own, have become indebted as sureties for defaulting officers. The language — "such claims, when presented, shall be liquidated and settled by a credit for the amount thereof upon the accounts of the public debtor" — clearly imports a reference to such persons as the Commonwealth has "accounts" with, and not to such as the Commonwealth may happen to have a claim against by reason of the default of another.

The law makes it the duty of the jailer to furnish food and bedding for the prisoners in his charge, to attend upon the court and to supply fuel for the use of the court, and for these services the statute provides he shall be paid out of the state treasury, and that it shall be the duty of the Auditor to draw his warrant in payment of such claims as come to him properly allowed and properly certified. The greater part of the claims of jailers is ordinarily in the nature of advances made on the faith of the promise of the state to repay, and to that extent he stands somewhat in the relation of a disbursing agent who is required to pay out money for the state before he receives it.

The construction insisted...