Roberts v. Fiscal Court of McLean County

• Citation: 244 Ky. 596
• Parties: Roberts v. Fiscal Court of McLean County et al.
• Decision Date: 21 June 1932
• Court: United States State Supreme Court (Kentucky)

244 Ky. 596

Roberts v. Fiscal Court of McLean County et al.

Court of Appeals of Kentucky.

Decided June 21, 1932.

1. Counties. — Compromise settlement made by fiscal court need not be filed and approved by county court.

2. Counties. — Compromise of disputed account between sheriff and fiscal court held not illegal as "releasing or extinguishing indebtedness to county," where there was genuine dispute as to amount due and as to whether sheriff owed county (Constitution, sec. 52).

3. Reference. — Allowance made special commissioner for services on reference held erroneous where report was not under oath (Ky. Stats., sec. 396).

Appeal from McLean Circuit Court.

BARNES & SMITH and L.P. TANNER for appellant.

CARY, MILLER & KIRK for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

C.L. Roberts was sheriff of McLean county for the years 1922, 1923, 1924, and 1925, and settled his accounts with commissioners appointed by the fiscal court. In the year 1925 a dispute arose as to the correctness of the settlements for the years 1922, 1923, and 1924. At the suggestion of Roberts, the fiscal court employed a firm of accountants to audit his books and accounts. The audit was completed in the summer of 1925, and showed a balance due by Roberts of several thousand dollars. On September 8, 1925, the fiscal court entered an order directing that suit be brought against Roberts and his surety to compel him to settle his accounts. On the same day Roberts and representatives of the county, and of the county board of education, reached an agreement which was embodied in the following order entered by the fiscal court:

"Motion by Esquire Nall and seconded by Esquire Moore that a settlement this day made between R. Alexander county attorney, for the McLean County Fiscal Court, Mr. John Dillehay for the schools and Mr. C.L. Roberts and his counsel for himself be and the same is hereby accepted, namely that he pay over to the county treasurer, Mrs. Jennie Franklin, for McLean County for the years 1922, $753.92; for 1923, $71.38; for the year 1924, $82.26; for the rock road fund $1,172.26, and the school board is to refund to Mr. C.L. Roberts, sheriff, $198.77. Yeas: Moore, King, Bohannon, Nall, Johnson. Naes: Cook."

Following the entry of this order Roberts made the payments therein required, and the school board paid to him the sum of $198.77.

Later on a dispute arose as to the correctness of Roberts' settlement of "The Rock Road Fund" for the year 1925; Roberts claiming that in his settlement he had overpaid the county. The dispute was finally ended on September 4, 1928, by the following order made by the fiscal court:

"Motion by Esq. Nall, and seconded by Esq. Johnson, that C.L. Roberts be and he is hereby allowed the sum of $462.24 for overcharge made in settlement by W.A. Taylor, Special Commissioner on 1925 Road Fund, payable out of the Rock Road fund 1928 levy."

The $462.24 mentioned in the order was paid to and accepted by Roberts.

In the year 1928, Roberts employed an expert accountant who reported that the county was indebted to him in a considerable sum.

On March 8, 1929, Roberts brought this action to surcharge his settlements for the years 1922, 1923, and 1924, and also the Rock Road Fund settlement of 1925, and to recover alleged overpayments aggregating about $5,000. In addition to denying the allegations of the petition and amended petition, the fiscal court of the county pleaded the compromise agreements of September 8, 1925, and September 4, 1928, in bar of his right to recover. Upon completion of the pleadings, the cause was referred to a special commissioner to determine and report whether any binding settlement had been made between the parties, and whether or not McLean county was indebted to Roberts in any sum. After hearing the evidence, the commissioner reported that the compromise agreement of September 8, 1925, was valid, but made no report as to the compromise of September 4, 1928. He further reported that the records kept by Roberts were not in such shape as to enable him to tell whether Roberts or the county was correct, and that in his opinion one or the other of the statements of account filed by the parties would have to be accepted in toto. He also asked for an allowance of $250 for his services. Exceptions to his report were overruled, and the report was confirmed. From the order confirming the report and dismissing Roberts' petition as amended, he appeals. He has also prayed an appeal from the order allowing the commissioner a fee of $250.

Our conclusions on the questions involved are these:

1. The evidence does not justify the conclusion that the alleged settlements were obtained by fraud or duress.

2. The requirement that settlements made with a commissioner appointed by the fiscal court shall be filed and approved by the county court applies only to such settlements as are required by sections 4146, Kentucky Statutes, and does not apply to a compromise settlement made by the fiscal court.

3. Section 52 of the Constitution provides:

"The general assembly shall have no power to release, extinguish, or authorize the releasing or extinguishing, in whole or in part, the indebtedness or liability of any corporation or individual to this commonwealth or to any county or municipality thereof."

An examination of the cases construing this section will show that the power to compromise has been denied in every case where the liability of the taxpayer or officer was fixed and certain, but that the court was careful to point out that the Constitution did not forbid the settlement of an unliquidated claim. Thus in City of Louisville v. Louisville Railway Co., 111 Ky. 1, 63 S.W. 14, 23 Ky. Law Rep. 390, 98 Am. St. Rep. 387, a franchise tax was...