Scott v. Forrest

• Decision Date: 16 March 1917
• Citation: 192 S.W. 691,174 Ky. 672
• Parties: SCOTT v. FORREST, COUNTY JUDGE, ET AL.
• Court: Kentucky Court of Appeals

192 S.W. 691

174 Ky. 672

SCOTT v. FORREST, COUNTY JUDGE, ET AL.

Court of Appeals of Kentucky.

March 16, 1917

Appeal from Circuit Court, Metcalfe County.

Mandamus by M. O. Scott against C. H. Forrest, County Judge, and others, members of the Fiscal Court of Metcalfe County, in which W. A. Ross intervened and filed an answer on behalf of himself and others. Mandamus issued, leaving certain matters in issue to their discretion, and plaintiff appeals, and L Boston and M. B. Shaw prosecute a cross-appeal. Affirmed on the original and cross appeals.

W. L Porter and Baird & Richardson, all of Glasgow, for appellant.

W. S Smith, of Glasgow, Larimore & Wheeler, of Munfordville, J. W. Kinnaird, of Edmonton, and W. R. Lyon, of Horse Cave, for appellees.

CLAY C.

On January 24, 1916, the county court of Metcalfe county, pursuant to a petition signed by the requisite number of legal voters and freeholders, entered an order, directing an election to be held on Saturday, March 25, 1916, in Metcalfe county, to submit to the voters the question whether they were in favor of issuing $30,000 in bonds for the purpose of building roads and bridges. On February 24, 1916, the fiscal court entered the following order:

"Be it resolved that the public interest demands the improvements and construction of a public road on the following established route or as near thereto as practical, it appearing that for the year 1915 there was collected and disbursed for road and bridge purposes in Metcalfe county the sum of approximately $4,200, as shown by sheriff settlement on file in this office:

The Edmonton and Glasgow road leading from Edmonton to Glasgow by the way of Wisdom to the Barren county line, a distance of about nine miles.

The Edmonton and Horse Cave road and Center to the Hart county line the distance of about 20 miles, the Edmonton and Columbia road by the way of Gascon to the Adair county line a distance of about 8 miles, and the Edmonton and Tompkinsville road by the way of Good Luck to the Monroe county line, a distance of about 12 miles, same being a portion of the inter county seat road connecting Edmonton, the county seat of Metcalfe county, with the county seats of Barren, Hart, Adair and Monroe counties in the order above named on the most direct and practicable routes, and it is the sense of this court that said roads be improved under state aid and state supervision during the year 1916.

Application is hereby made to the commissioner of public roads for $30,000 of the state road funds to be apportioned to Metcalfe county for the improvement of said roads.

It appears that this court has not heretofore applied for state aid. It is therefore ordered that the fiscal court of Metcalfe county petition the state of Kentucky and the state commissioner of public roads for $30,000 of the state road funds for the use of this county, for the improvement of the roads aforesaid, and agrees to furnish a like amount.

In case $30,000 exceeds the amount that may be apportioned Metcalfe county for the year 1916, then in that case the fiscal court of Metcalfe county requests the proportional amount of the state road funds that may be apportioned Metcalfe county.

It is further ordered that a copy of these resolutions and a copy of this court's order be certified to the commissioner of public roads for his approval."

At the election, which occurred on March 25, 1916, the proposition was carried by the required vote, and the result properly certified and entered on the records of the fiscal court. On April 5, 1916, the fiscal court passed an order providing for the advertisement, sale, and issue of $20,000 worth of bonds. At the same meeting a resolution was passed, reciting that the public interest demanded the improvement and construction of the Edmonton and Munfordville road for a distance of 10 miles, and that it was the sense of the court that said road be improved under state aid and supervision during the year 1916. In the same resolution application was made for state aid in the sum of $10,000. At a meeting of the fiscal court, held on May 1, 1916, one of the members of the court made the following motion:

"That the court adopt the route leading from the corporate limits of Edmonton, Ky. toward Glasgow to the Barren county line by the most practical route, with the provision that the landowners along said route donate the right of way that may be selected and furnish rock and gravel free along said route."

This motion was lost. At a meeting of the fiscal court, held on July 6, 1916, an order was entered, directing that the proceeds of the $30,000 bond issue be equally divided between the three magisterial districts, and naming certain roads to be improved. This suit was brought on July 18, 1916, by M O Scott against the members of the fiscal court, to obtain a mandamus compelling them first to construct the Edmonton and Glasgow road. The petition proceeds on the theory that the order of February 24th designated that road as the first one to be improved, and that the fiscal court was without authority thereafter to amend or change the order. The county attorney answered on behalf of the county, and joined in the prayer of the petition. W. A. Ross, a taxpayer, intervened and filed an answer on behalf of himself and others. Answers were also filed by the county judge and two other members of the fiscal court. On final hearing the circuit court was of the opinion that the Edmonton and Glasgow road was not designated by the order of February 24th as the first road to be constructed. In view, however, of the fact that the people voted for the bond issue in the belief that the proceeds thereof would be used for the purpose of constructing the four roads named in the order of February 24th, the court also adjudged that the fiscal court was without authority thereafter to divert the proceeds to other purposes, and therefore granted a mandamus, directing the members of the fiscal court to assemble at the courthouse...