Lawrence County v. Lawrence Fiscal Court

• Decision Date: 18 March 1921
• Citation: 229 S.W. 139,191 Ky. 45
• Parties: LAWRENCE COUNTY v. LAWRENCE FISCAL COURT ET AL.
• Court: Kentucky Court of Appeals

229 S.W. 139

191 Ky. 45

LAWRENCE COUNTY v. LAWRENCE FISCAL COURT ET AL.

Court of Appeals of Kentucky.

March 18, 1921

Appeal from Circuit Court, Lawrence County.

Suit by Lawrence County, on relation of the county attorney against the Lawrence Fiscal Court and others. Plaintiff's motion for injunction was overruled, and they apply to a member of the Court of Appeals to review such action and grant the injunction. Motion for injunction overruled.

D. L Thompson, County Atty., of Louisa, and Waugh & Howerton, of Ashland, for plaintiff.

Chas I. Dawson, Atty. Gen., M. S. Burns and A. J. Garred, both of Louisa, J. W.

Woods of Ashland, R. C. McClure, of Louisa, and Jack May, for defendants.

THOMAS J.

The purpose of this suit, filed in the Lawrence circuit court by Lawrence county on relation of the county attorney against the fiscal court of the county and others, was to enjoin the fiscal court from carrying into execution a resolution which it is claimed to have passed at a special session held on December 29, 1920, wherein it proposed to donate to the commonwealth of Kentucky the sum of $125,000 to be used in the construction of a public highway running through the county, which forms a part of a proposed state highway, traversing the eastern part of the state, to be known as the Mayo Trail, and which in turn is a part of Project No. 6 of the system of state highways provided by an act passed by the General Assembly at its 1920 session, which is chapter 17, Session Acts 1920, page 76. Upon the hearing of the motion for the injunction the pleadings, consisting of the petition as amended, the answer and a number of affidavits filed by the defendants were considered, and the court overruled the motion, and plaintiffs have applied to the writer, a member of the Court of Appeals, as is provided by the present sections 296 and 297 of the Civil Code, to review the action of the circuit judge and to grant the injunction.

Many collateral points are discussed in briefs, but it is quite apparent that the grounds relied on to defeat the proposed action of the fiscal court, and in support of the relief sought, may be included in the classifications of: (1) That the resolution offering to make the donation was not passed by the requisite number of votes, and is therefore invalid; (2) that the Legislature is without authority to confer the power on the fiscal court of a county to donate the funds of the latter to the proposed purpose; (3) that in fact the 1920 act does not confer such authority; and (4) that if mistaken in the first three grounds the fiscal court of the county cannot donate the particular fund involved, which is one-half of the proceeds of a road and bridge bond issue voted by the electors of the county at an election held on December 20, 1919, before the 1920 act was passed, and which bonded indebtedness was stated in the petition calling for the election to be for the purpose of constructing four designated roads in the county, and that to donate any part of the funds arising from a sale of the bonds would pervert the purpose for which they were voted. These contentions will be disposed of in the order named.

1. The record discloses that there are seven justices of the peace in Lawrence county, who with the county judge compose the fiscal court. Section 144, Constitution. It is stated in brief that there are eight justices in the county, but from the view we take of the case (as hereinafter shown) it makes no difference whether there were seven or eight in the county, although under the condition of the record we are not authorized to consider any other number than seven. The records of the fiscal court affirmatively show that on the day the questioned resolution was passed there were seven justices present and the county judge; that a roll call of the justices showed four votes cast for the resolution and three against it. The record is silent as to the action of the county judge. Immediately following the recorded vote and, as it seems, a part of the same proceedings, an order was made by the fiscal court, directing a sale of $125,000 of the bonds, and appointing the county judge trustee of the funds arising therefrom, and authorizing him to "pay same out on estimates furnished by the State Highway Commission, 50 per cent. of said estimates each month out of said funds until the total sum of $125,000 is expended, and he is hereby ordered not to exceed this amount."

The argument is made on behalf of plaintiff that the county judge is a member of the fiscal court, which is true (Bath County, etc., v. Daugherty, Commissioner, 113 Ky. 518, 68 S.W. 436, 24 Ky. Law Rep. 350, and Stephens v. Wilson, 115 Ky. 27, 72 S.W. 336, 24 Ky. Law Rep. 1832), and that he with the seven justices of the peace, who were present when the resolution was considered, made eight members of the court present, and that it was necessary in order to carry the resolution for it to receive five votes, and, having received only four votes, it failed to pass, and conferred no authority upon the fiscal court to do any of the things proposed therein. It is not disputed but that the seven voting members constituted a quorum of the entire membership of the court, even if we consider that there are eight justices of the peace in the county, and that according to parliamentary rules governing the procedure of representative bodies generally the four votes cast for the resolution were a majority of that quorum, and would under such parliamentary procedure be sufficient to adopt the resolution. And this accords with section 144 of the Constitution, which provides that "a majority of the members of said [fiscal] court shall constitute a court for the transaction of business." But it is insisted that section 1837 of the statutes requires that before any proposition shall be adopted by the fiscal court it shall receive the votes of at least a majority of the members present, although a majority of the quorum voting upon the proposition may be cast in its favor. That section says:

"Not less than a majority of the members of the fiscal court shall constitute a quorum for the transaction of business, and no proposition shall be adopted unless by the concurrence of at least a majority of the members of the court present."

The question, therefore, is, under the condition of the record, Was the resolution here involved adopted by a majority of the members of the court present as contemplated by that section? Manifestly there is involved in the answer to this question the further one as to whether the nonvoting member (the county judge) who was present may be treated as voting and, if so, how?

In the case of Ray v. Armstrong, 140 Ky. 800, 131 S.W. 1039, the question was presented whether an order of the then State Board of Equalization, which raised the assessed valuation of farm lands, town lots, and personal property in Jefferson county 12 per cent. over the amount as returned by the assessor of the county, was legally passed by that board, which consisted of seven members and the state auditor as an ex officio member, making a total membership of eight. The statute (section 4268) required that five members of the board should constitute a quorum for the transaction of business, and the order or resolution fixing the increased valuation received only four votes when the entire membership of the board was present, and there were three votes cast against it, the chairman of the board, who was the auditor of public accounts, not voting. Sustaining the validity of the resolution, this court said:

"But in this instance all the members were present--eight. Four voted to raise the assessment of Jefferson county, and three voted against the proposition. Four is not a majority of eight. The remaining member, though present and sitting in the board, did not vote. What is the legal effect of this conduct? If it be held that his not voting had the same effect as if he had been absent, it would belie the facts. For he was not absent. His silence should, we think, be construed as concurring with the majority. His silence is acquiescence rather than opposition. His refusal to vote is, in effect, a declaration that he concurs with the majority. Otherwise he should vote against the majority, which would have defeated the proposition. Rushville Gas Co. v. City of Rushville, 6 L. R. A. 315; Wilcock, Corp., section 546; State v. Green, 37 Ohio St. 227; Luntz v. People, 113 Ill. 137; Cass County v. Johnson, 95 U.S. 369; St. Joseph Tp. v. Rogers, 83 U.S. 16; State v. Renik, 37 Mo. 270; Everett v. Smith, 22 Minn. 53; Oldknow v. Wainwright, 2 Burr. 1017; First Parish, etc., v. Stearns, 21 Pick. 148."

The doctrine of the Ray Case were held by this court, in the case of Morgan v. Champion, 150 Ky. 396, 150 S.W. 517, to apply to the proceedings of fiscal courts. The question there involved was the ratification by the fiscal court of the appointment of a county road engineer by the county judge, which is required by section 4325 of the statutes, and the fiscal court of Anderson county (whose action was under consideration) consisted of six justices of the peace and the county judge. The ratification of the appointment by the county judge received only two votes, and there was nothing in the record to show that the other members who were present were given an opportunity to vote. It was because of the latter fact that the court, in its opinion, held that the appointment was improperly ratified. But it expressly referred to and approved the doctrine of the Ray Case, saying:

"If we should support an order of the nature made in the case here and should apply the doctrine of the Ray Case (which is sound and should be applied), the presiding officer of a county court would

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