Pulaski County v. Richardson, Co. Treasurer

• Decision Date: 19 October 1928
• Citation: 225 Ky. 556
• Parties: Pulaski County, et al., v. Richardson, County Treasurer, et al.
• Court: United States State Supreme Court — District of Kentucky

225 Ky. 556

Pulaski County, et al., v. Richardson, County Treasurer, et al.

Court of Appeals of Kentucky.

Decided June 22, 1928.

As Modified on Denial of Rehearing, October 19, 1928.

1. Counties. — Where the fiscal court had directed the county treasurer by order not to pay any claim without a specific order, notwithstanding which the treasurer paid a claim which was invalid, he could not resist recovery of its amount, when sued by the county, on the ground that he had no notice that the claim was invalid, since the order of the fiscal court was sufficient notice thereof.

2. Counties. — Persons contracting with a county have a right to presume the county is going to make every possible effort to comply

with its contract, and hence that county is going to levy all possible taxes and raise all available revenue.

3. Counties. — In determining limit of county's indebtedness under Constitution, sec. 157, amount that a poll tax would have yielded, even though such tax was not levied and amount was not raised, must be included as part of income and revenue for county.

4. Counties. — In action by county against treasurer and his surety to recover amount alleged to have been improperly paid by treasurer on claims against county because county's indebtedness exceeded limit prescribed by Constitution, sec. 157, held that, since all county warrants are prima facie valid, burden rested on treasurer to show that claims which county alleged were older and superior to the ones treasurer had paid were invalid, thus establishing validity of debts paid by treasurer, or to show that debts which treasurer paid were older and superior to such other claims.

5. Counties. — Where the county fiscal court allows a claim against the county, the court acts judicially, and cannot thereafter reconsider its action.

6. Counties. — Even though a county fiscal court has allowed a claim against the county and the county treasurer has paid it, if the claim was illegal, the county can recover it from the man who wrongfully got the money.

7. Counties. — Though county fiscal court, after allowing a valid claim, cannot reconsider its action after adjournment of term at which it was allowed, when it allows and issues a warrant to pay an invalid claim its action is absolutely void and of no binding effect on county.

8. Counties. — When a county treasurer is confronted by conflicting orders of fiscal court, he should obey the last one, for the presumption is that the court is proceeding within its jurisdiction, and is honestly endeavoring to discharge its duty and only doing what it has a right to do.

9. Counties. — Petition, in action by county against treasurer and surety on his bond, to recover sums alleged to have been paid by treasurer on claims against county after fiscal court had made an order that treasurer should not pay out such sums, held to state a cause of action, in that it has alleged facts showing that claims paid by treasurer were invalid.

Appeal from Pulaski Circuit Court.

G.W. SHADOUN, KENNEDY & JONES and DENTON & PERKINS for appellants.

WILLIAM WADDLE for appellees.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

Pulaski county, suing by its proper authorities, sought to recover of J.M. Richardson, its treasurer, and J.H. Gibson, his surety, $29,215.16, which it claimed the treasurer had improperly paid out and failed to account for. It was unsuccessful, and has appealed.

As this case went off on a demurrer to the county's petition as amended, the correctness of that ruling is the only question before us. The county offered to file five amendments to its petition, and was allowed to file all of them except its amendment No. 4, which it was properly not permitted to file, as that amendment was not germane to the issue. In its petition and its amendments 1, 2, 3, and 5, which make up 52 pages of the record, there are many conclusions pleaded and much that is immaterial, but the county has in its petition as amended alleged sufficiently the following:

(a) The official capacity of appellants to sue, in the name of the county.

(b) That Richardson was the treasurer of Pulaski county, and Gibson was the surety on his bond.

(c) That Richardson had paid out $29,215.16 upon alleged debts of the county not made in the year 1926, and represented by alleged warrants not issued in the year 1926.

(d) That the funds paid out were funds arising from taxation levied in for the year 1926.

(e) That the fiscal court had on January 15, 1926, made an order that the treasurer should not pay out such money upon any notes, vouchers, claims, or checks for years prior to 1925, and that Richardson paid out this $29,215.16 after notice of this order.

(f) That the property in Pulaski county, subject to taxation for the year 1921, was $11,815,121, upon which a levy of 50 cents per $100 (the highest permissible levy) had been made.

(g) That this yielded a revenue of $59,075.60, and was all the funds, assets, or revenue of the county on hand or possible for that year, except a sum not in excess of $6,000, which might have been realized from a poll tax which was not levied.

(h) That the claims or warrants upon which the treasurer paid out these funds were issued in the year 1921.

(i) That $25,000 of the 1921 revenue was required and used to pay the official salaries and other current expenses of the county for the year 1921.

(j) That, besides paying its current expenses of $25,000 for the year 1921, out of the funds available for that year, and when the vouchers or orders for this $29,215.16 were issued, and at the time of the attempted incurring of the debts for which they were issued the county had already issued vouchers and warrants aggregating $40,374.87, and there was further then an indebtedness existing against the county in notes to Eyer & Co. for $45,000 and funding bonds of the county for $28,500.

(k) That no election had ever been held by which any of this indebtedness had been authorized.

The county's pleading is by no means a model, still we are able to spell this out of it, and it had stated a case so far as the year 1921 and warrants of that year are concerned. If it is able to establish all these things by proof, it is entitled to some recovery, but how much we do not decide, as that question is not before us.

It is very strenuously argued on behalf of Richardson that no notice was ever given him that this indebtedness was invalid, but in their second amendment to their petition the plaintiffs plead:

"For further amendment to their petition, the plaintiffs state that on January 15, 1926, the court entered an order directing the county treasurer not to pay any notes, vouchers, claims, or checks issued against either the road fund or general fund of this county, prior to the year 1925, without having a specific order of the present court so to do, giving the dates, number, and in whose favor and on what fund, and that at the same time an order of the present court appropriating money for the payment of same.

"That the county judge of Pulaski county notified the defendant county treasurer, on January 20, 1927, by a notice duly served upon said defendant treasurer on the 20th day of January, 1927, by the sheriff of Pulaski county, that said fiscal court had entered an order, a copy of which was delivered to the said defendant treasurer, in which the said treasurer was directed to pay no claims against the county without a specific order directing the plaintiffs to be paid, and at the same time an appropriation out of which to pay same."

As an exhibit with that amended petition the plaintiffs filed copy of an order entered by the Pulaski fiscal court from which the following is taken:

"It is further ordered that the said county treasurer be and he is directed not to pay any notes vouchers, claims, or checks issued either against the general fund or the road fund of this county for the years prior to the year 1925 without having the specific order of the present court so to do, giving the date, number, in whose favor, and on what fund, and at the same time the present court making an order appropriating funds for the payment of same, nor to pay any notes, vouchers, claims, or checks of any fund out of money derived from a levy and collection for another fund; nor to pay the notes, vouchers, claims, or checks issued on any fund for any year with money derived from the levy and collection of revenues for a different year, though it may be the same fund for a different year without the specific order of the present court so to do. . . . The clerk of this court is ordered and directed to deliver a copy of this order to the said county treasurer."

This was positive notice to the treasurer that the fiscal court did not want him to pay any notes, vouchers, claims, or checks issued prior to the year 1925 without a specific order of the fiscal court, as it was constituted in 1927, directing him so to do, and, as the fiscal court could not revoke an order once made for the payment of a valid claim, this order was equivalent to a notice to the treasurer that these claims were invalid. The treasurer is never required to assume judicial functions, or to undertake to say what orders of the fiscal court are valid and what are invalid; that is a matter for the fiscal court to determine. All he has to do is to obey, and it is true the fiscal court does not tell him in this order that claims issued prior to the year 1925 were invalid; but it does tell him not to pay them, and his present difficulties are not the result of an erroneous judgment on his part, but result from his disobedience. When he received a copy of that notice, he should have obeyed it, and, if the holder of a valid claim had sued him, it would have been the duty of the county attorney, under section 127, Kentucky Statutes, to have defended the action for the treasurer, for this was a matter in which the county was interested

Its allegations as to the...