Milliken v. Harrod

• Decision Date: 25 November 1938
• Citation: 122 S.W.2d 148,275 Ky. 597
• Parties: MILLIKEN et al. v. HARROD, Constable, et al.
• Court: Kentucky Court of Appeals

122 S.W.2d 148

275 Ky. 597

MILLIKEN et al. v. HARROD, Constable, et al.

Court of Appeals of Kentucky

November 25, 1938

Appeal from Circuit Court, Warren County.

Suit by William Harrod, Constable for Magisterial District No. 2, and others against G. D. Milliken, Jr., Judge of the Warren County Court, and others to enjoin the defendants from paying county funds to county patrolmen and to enjoin the patrolmen from acting as deputy constables in Magisterial District No 2 of Warren County, wherein defendants filed a demurrer. From a judgment, defendants appeal.

Affirmed.

Laurence B. Finn and Wm. H. Natcher, both of Bowling Green, Hubert Meredith, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellants.

Max B Harlin and M. B. Harlin, Jr., both of Bowling Green, for appellees.

RATLIFF Justice.

Appellee William Harrod, suing individually as a taxpayer and resident of Warren County, Kentucky, and as constable for magisterial district No. 2, instituted this suit in the Warren circuit court against the appellants, G. D. Milliken, Jr., Judge of the Warren County Court, and the eight magistrates of Warren County, namely, L. E. White, J. C. Davenport, Will Anderson Emmett Smith, J. W. Van Meter, Neil Comfort, Eugene Murray and Tom Wilson, together with the county judge composing the fiscal court of Warren county, Raymond G. Stahl, County Treasurer for Warren County, and Webb A. Howard, Samuel P. Martin, Fred G. Vail, and Edwin Topmiller, county patrolmen for Warren county, seeking to enjoin the said county judge and magistrates from paying out of the public funds of Warren county the salaries of said county patrolmen, and further to enjoin the said county patrolmen from acting as deputy constables in magisterial district No. 2 of Warren county. We will refer to appellee as plaintiff and to appellants as defendants according to their status in the lower court.

The plaintiff alleged in his petition, in substance, that he was elected constable for magisterial district No. 2 in Warren county at the November 1937 election and qualified on the first Monday in January, 1938, and entered upon the duties of the office; that on January 3, 1938, the defendant county judge called a special term of the Warren county court and pursuant to the call the defendants, magistrates and county judge, convened together and undertook to divide Warren county into four patrol districts; that district No. 1 embraces magisterial district No. 2, in which the plaintiff was elected constable as aforesaid, and that at the same meeting the defendant members of the fiscal court further undertook to appoint the defendants Howard, Vail, Martin and Topmiller as county patrolmen for the various respecttive patrol districts, for a period of one year, and further undertook to provide that the patrolmen be paid a salary for their services payable out of the county treasury. It is further alleged that at a later meeting the defendants county judge and magistrates, composing the fiscal court, undertook to appoint patrolmen Howard, Martin, Vail and Topmiller deputy constables for magisterial district No. 2 and that they are acting or attempting to act as deputy constables in plaintiff's magisterial district and that their purported appointments were made solely by the defendant county judge and that plaintiff did not designate or appoint any of said defendants as constables and that their appointments purported to have been made by the county judge alone was without plaintiff's co-operation and consent, and that said patrolmen have been undertaking and attempting to function and act both as county patrolmen and deputy constables and have been and are exercising the powers and duties of deputy constables as well as county patrolmen and undertaking to receive and collect compensation and remuneration therefor provided for by the orders of the fiscal court. It is further alleged that the defendant members of the fiscal court have no right or authority of law to appoint county patrolmen and that the county judge had no right to appoint deputy constables in and for magisterial district No. 2 and all orders or purported orders attempting to create and establish patrol districts in Warren county and purporting to appoint patrolmen and deputy constables in the manner aforesaid and the attempted appropriation of the public funds of the county to pay the patrolmen are void and of no effect. He prayed for an order of injunction in accordance with the allegations of the petition.

The court entered an order granting a temporary injunction according to the prayer of the petition and appellants entered motion before a member of this court to dissolve the temporary injunction, which motion was overruled, and upon a return of the case to the Warren circuit court the case was further prepared and tried on the merits and the court entered a final judgment making the temporary injunction permanent and granted the plaintiff the relief prayed. To reverse that judgment the defendants have prosecuted this appeal.

A number of questions are raised in brief of defendants pertaining to the court's ruling on demurrers, special demurrers, motion to strike and to paragraph. But since questions of law only are involved, and the court as indicated in the written opinion made part of the record, considered all issues and questions of law raised and determined the case upon its merits, we do not think the questions of practice are of any importance as affecting the merits of the case.

It is insisted for defendants that the allegations of plaintiff's petition to the effect that the defendants patrolmen were illegally appointed and unlawfully holding the office of patrolmen and deputy constables, in effect charge the defendants with being usurpers of such offices, and, therefore, plaintiff has no right to maintain this action, that function being vested in the Attorney General and Commonwealth's Attorney, and rely on sections 480-485, of the Civil Code of Practice which provides that an ordinary action may be brought by a person entitled to the office against usurpers and if no person is entitled to the office, then an ordinary action may be brought by the Attorney General or Commonwealth's Attorney. We are unable to agree with defendants as to the nature and purpose of the action. In the chancellor's opinion he clearly points out the distinction between such actions provided for by the Code, supra, and an action by a taxpayer, not to contest the right of a person to hold an office, but to enjoin the payment of salaries not authorized by law, and the right of an officer to enjoin another person from unlawful interference with his possession of his office.

After stating the purpose and nature of the litigation, as we have indicated, the chancellor wrote:

"Defendants file a special demurrer challenging plaintiff's authority to maintain this action and the case is now before the court on this special demurrer. The court is not concerned with the exigencies of the appointment of Howard, Vale, and Topmiller as deputy constables by the county judge, or with the exigencies with their appointment as county patrolmen. At this stage of the proceeding the sole questions to be determined are: First, can the plaintiff as constable maintain this suit to prevent the three named deputy constables from performing the duties of the office to which he was legally elected, qualified and is now acting? Second, can the plaintiff as a citizen and taxpayer maintain this action to challenge the authority of the fiscal court to expend public funds to pay these three patrolmen? "Sections 480-485 of the Civil Code provide an ordinary action may be brought by the person entitled to the office against usurpers; and if no person is entitled to the office, then an ordinary action may be brought by the Attorney General or Commonwealth Attorney. It is well settled in Kentucky a taxpayer, or any person not entitled to the office usurped, cannot maintain an action against a usurper; in such instances the action must be brought by the Attorney General or the Commonwealth Attorney. King v. Kahne, 87 S.W. 807, 27 Ky. Law Rep. 1080; Anderson v. Fowler, 180 Ky. 587, 203 S.W. 322. But it is equally well settled in this state a person entitled to an office may maintain an action against the person usurping the office. Morgan v. Adams, 250 Ky. 441, 63 S.W.2d 479; Poyntz v. Shackelford, 107 Ky. 546, 54 S.W. 855, 21 Ky.Law Rep. 1323. Counsel for defendants argue there is a decided difference between a constable and a deputy constable, and that while a deputy constable could maintain this suit against another deputy constable, the constable himself cannot maintain it against a deputy constable. Our mind cannot grasp the distinction. It is an elementary principle of law an agent has no greater authority than his principal; then certainly the principal, or here the chief officer, will not be denied any right or privilege his agent or deputy has. It is further argued these three deputy constables were appointed by the county court and hold office for the term to which they were appointed and they can only be removed as provided by Sec. 3766a-6, Ky.Stats. Sec. 425, Ky.Stats., authorizes a constable to appoint one or more deputies by and with the consent of the county judge. Certainly this section does not give the county judge the right to appoint deputy constables; it merely gives the county judge a veto on any appointments made by the constable. We know of no statute authorizing the county judge to appoint deputy constables and the industrious and learned counsel for defendants have cited none to us. Section 3766a-6 relates to the removal from office of any sheriff, jailer, constable, or other peace officer, by the governor for

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