McKenna v. Nichols

• Decision Date: 01 October 1943
• Citation: 295 Ky. 778,175 S.W.2d 121
• Parties: McKENNA et al. v. NICHOLS, County Judge, et al.
• Court: Kentucky Court of Appeals

175 S.W.2d 121

295 Ky. 778

McKENNA et al. v. NICHOLS, County Judge, et al.

Court of Appeals of Kentucky

October 1, 1943

Rehearing Denied December 3, 1943.

Appeal from Circuit Court, Fayette County; William B. Gess, Special Judge.

Action by Mary Fisher McKenna and others, for and on behalf of taxpayers, etc., against William E. Nichols, County Judge etc., and others for a declaration of rights as to whether defendant could appoint a deputy county clerk as clerk of the quarterly court without entering an order of record and as to the right of the person appointed to retain the costs collected by him as compensation for services. From an adverse decision, plaintiffs appeal.

Affirmed.

Jay W Harlan and Henry Jackson, both of Danville, and S. Jewell Rice, of Lexington, for appellants.

R. P Moloney, of Lexington, for appellees.

SIMS Justice.

Hon William E. Nichols has been Judge of the Fayette County Court since January, 1934, and by § 139 of the Kentucky Constitution he is the presiding Judge of the Quarterly Court of Fayette County. His predecessor in office, Hon. Chester D. Adams, on September 22, 1932, by an order duly entered, appointed E. H. Fuller, then Clerk of the Fayette County Court, as clerk of the quarterly court pursuant to § 703 of the Civil Code of Practice. But Judge Nichols never by an order appointed a clerk of the quarterly court, although in April, 1934, he orally designated J. Robert Ledford, then a duly qualified deputy clerk of the county court, to act as clerk of the quarterly court. Ledford has continued to act as deputy county court clerk and as clerk of the quarterly court up until this time. He has received a fixed salary as deputy county court clerk, and as compensation for his services as clerk of the quarterly court he has, with the consent of the county judge, retained the statutory court costs collected from civil suits filed in the quarterly court.

Mary Fisher McKenna and L. M. Land, on behalf of themselves and other taxpayers in Fayette County, caused this action to be instituted in the Fayette Circuit Court for a declaration of rights as to whether the county judge could appoint a deputy county court clerk as clerk of the quarterly court without entering an order of record, and as to the right of Ledford as such clerk to retain the costs collected by him as compensation for his services; or whether the county judge, the surety on his official bond, and Ledford could be compelled to account for the fees collected by Ledford.

Hon. William B. Gess, sitting as special judge, rendered a written opinion in which he upheld Ledford's right to retain the fees he had collected. Judge Gess' theory was that under § 703, subsec. 4, of the Civil Code of Practice, the county clerk shall act as clerk of the quarterly court, in the absence of the County Judge from his office, without an appointment; and when he acts without such an appointment it is presumed he did so in the absence of the county judge, which presumption was not rebutted in this record; and under§ 678 of the Code a deputy clerk may perform any ministerial duty imposed upon the clerk. He based his decision largely on Daniels v. Dils, 4 Ky. Law Rep. 836.

Appellants insist that the county judge can only appoint a clerk of the quarterly court by an order of record; that at the time of Ledford's appointment and until after this suit was instituted there was no provision of law whereby the county could compensate him for his services as such clerk until the enactment of KRS 64.035, subsec. 2, by the General Assembly in 1942; and in the absence of an express provision of law to that effect, the county is not required or permitted to pay for the services of its officers, citing Wortham v. Grayson County Court, 76 Ky. 53; Harlan County v. Blair, 243 Ky. 777, 49 S.W.2d 1028; Baker v. Tedders, 244 Ky. 736, 52 S.W.2d 715; Taxpayers' League of Bell County v. Vanbeber et al., 252 Ky. 282, 66 S.W.2d 516.

A court of record may speak only through its orders. Adams' Heirs v. McCoy, 212 Ky. 731, 279 S.W. 1103; Baker v Tedders, 244 Ky. 736, 52 S.W.2d 715. Subsection 2 of § 703 of the Civil Code of Practice provides that the county judge by an order entered of record in the quarterly court (our italics) may empower the county clerk to act as clerk of the quarterly court. So it seems to us that Ledford's designation by the county judge as clerk of the quarterly court was irregular and defective. However, the oral designation by the county judge of Ledford as clerk of the quarterly court, and Ledford's assumption of the office and the performance of its duties under such irregular appointment, made him a de facto officer. It is well-settled that one who enters into possession of an office and exercises its functions by reason of an appointment which is informal or defective, or where the appointing power was exercised in an irregular manner, becomes a de facto officer. Overall v. City of Madisonville, 125 Ky. 684, 102 S.W. 278, 12...