Louisville & N.R. Co. v. Bullitt County

• Decision Date: 14 February 1933
• Citation: 247 Ky. 489,57 S.W.2d 506
• Parties: LOUISVILLE & N. R. CO. v. BULLITT COUNTY.
• Court: Kentucky Court of Appeals

57 S.W.2d 506

247 Ky. 489

LOUISVILLE & N. R. CO. v. BULLITT COUNTY.

Court of Appeals of Kentucky

February 14, 1933

Appeal from Circuit Court, Bullitt County.

Action by the Louisville & Nashville Railroad Company against Bullitt County. From a judgment sustaining a demurrer to the petition, plaintiff appeals.

Reversed.

Ashby M. Warren and Woodward, Hamilton & Hobson, all of Louisville and J. F. Combs, of Shepherdsville, for appellant.

A. E Funk, Jr., of Shepherdsville, for appellee.

RICHARDSON J.

The sufficiency of the petition as amended when tested by a demurrer is presented by this appeal. It is conceded that a county cannot contract except through the fiscal court acting in a body and speaking through its records (Holbrook v Letcher County, 223 Ky. 597, 4 S.W.2d 382), and for a purpose expressly provided by the statutes. Leslie County v. Keith, 227 Ky. 663, 13 S.W.2d 1012. It is not disputed that the petition as amended sets forth facts sufficient to constitute a cause of action on a contract with the county. With the original petition the order of the fiscal court approving the contract, and the contract itself were not filed. The county entered a motion, which was sustained by the court, to require the plaintiff to file the contract upon which its cause of action was based, and the order of the fiscal court showing that it was executed, by and through the fiscal court, or approved by it. In obedience to the ruling of the court there was filed the following: "Special Term Bullitt Fiscal Court held 15th day of May 1911. Adjourned over from May 1st, 1911. Present Leroy Daniel, Judge.

Moved by Coakley, seconded by Bell that the contract between Bullitt County and the L & N R R Company, concerning the bridge over the railroad at The Gap in Knob be and is approved and ordered to be recorded."

Immediately below this was copied a contract and an attestation, signed by the clerk of the county court. This contract purports to have been signed by the Louisville & Nashville Railroad Company on May 2, 1911. It is recited in the contract that the railroad company and the county agreed to relocate a certain county highway, grade and macadamize it, and erect a bridge of certain dimensions, with designated material; the railroad company to furnish creosoted form bents, resting upon concrete pedestals, superstructure to have iron stringers on which wooden floor joists were to rest, and floor and handrails to be erected, the county to accept it, and to assume the responsibility and expense of maintaining the floor of the bridge; all other parts to be maintained by the railroad company. The contract contains this clause: "This contract is accepted by the party of the second part by attaching its signature hereto, and by the party of the second part by having same entered of record on the orders of the fiscal court of the county." The above order of the fiscal court and contract constitute the foundation of the plaintiff's cause of action. It is argued by the county that the exhibit contradicts the averments of the pleading, and, under the prevailing rule, the exhibit must control. Ky. Mut. Sec. Fund Co. v. Logan's Adm'r, 90 Ky. 364, 14 S.W. 337, 12 Ky. Law Rep. 327; Hudson v. Scottish Union & Nat. Ins. Co., 110 Ky. 722, 62 S.W. 513, 23 Ky. Law Rep. 116; Kalfus v. Davie's Ex'r, 164 Ky. 390, 175 S.W. 652; Nixon v. Gammon, 191 Ky. 175, 229 S.W. 75; Howard v. Howard, 236 Ky. 557, 33 S.W.2d 635. The petition as amended sets out correctly and adequately the terms and conditions of the contract, and charges that it was accepted by the fiscal court, and that the order accepting it was entered of record, at a meeting regularly called, at which a quorum of the fiscal court was present, and then the order was signed by the county judge of Bullitt county.

It is earnestly and vigorously insisted by the county that the copy of the order and of the contract upon which the railroad company relies, as the foundation of its cause of action, contradicts the allegations of the petition as amended, and therefore it is bad on demurrer. Durham v. Elliott, 180 Ky. 724, 203 S.W. 539.

This rule of practice is not disputed. It is stated in briefs that the trial court interpreted the order of court, which is part of the exhibit, as merely showing that a motion was entered to accept the contract, but not acted upon by the fiscal court, and upon this ground the demurrer was sustained to the petition. The language of the order neither authorizes nor justifies such interpretation. Not only does the language of the order connote that the motion was made and seconded to approve the contract, but it expressly states that "it is approved and ordered to be recorded." In Carter v. Krueger & Son. 175 Ky. 399, 194 S.W. 553, 554, and Danville, Dix River, etc., Co. v. Lincoln County Fiscal Court, 77 S.W. 379, 25 Ky. Law Rep. 1162, orders of the fiscal court, in form and substance identical with the one in the present case, were involved, and were held by this court adequate for the purpose for which they were intended, and that the respective counties were thereby bound and liable. In the Carter Case the order reads: "Moved and seconded that Jas. P. Bailey be and he is hereby authorized to see P. M. McRoberts and secure him as one of the arbitrators in a settlement between Lincoln county and F. Krueger & Son."

In the Danville, Dix River, etc., Co. Case, the order reads: "Moved and seconded that this court accept the proposition of J. S. Robinson, president of the Danville, Dix River & Lancaster Turnpike Road Company, at the price of twelve hundred and fifty ($1,250) dollars, for 3 3/4 miles of said road in Lincoln county, for the individual stock owned in said road, it being 51/92 part of the whole road, including one-half of two bridges--one across Dix river, and the other over Hanging Ford creek. The same to be paid for as follows: $312.50 to be paid out of the levy of 1898, $312.50, out of the levy of 1899, $312.50 out of the levy of 1900, and $312.50 out of the levy of 1901; all sums to bear interest at the rate of five per cent. until paid. The insurance on the bridges is to be transferred at once, there being $1,000 on each bridge."

Section 1842, Ky. Statutes, provides: "Before every adjournment the minutes of the proceedings of said court shall be publicly read by the clerk of the court, and corrected, if necessary; and the same shall be signed by the county judge or presiding judge, with the approval of the justices of the peace present when the court was held."

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