Shipp v. Rodes
| Decision Date | 22 February 1927 |
| Citation | 293 S.W. 543,219 Ky. 349 |
| Parties | SHIPP, FOR USE OF FAYETTE COUNTY, ET AL. v. RODES ET AL. |
| Court | Kentucky Court of Appeals |
Rehearing Denied May 17, 1927.
Appeal from Circuit Court, Fayette County.
Action by Paul E. Shipp, for the use of Fayette County and others against J. Waller Rodes and others. Judgment for defendants and plaintiff appeals. Reversed and remanded, with directions.
N. B Hays, of Lexington, for appellant.
Hunt, Northcutt & Bush, of Lexington, Humphrey, Crawford & Middleton, of Louisville, and George C. Webb, of Lexington, for appellees.
This case and the companion case of Shipp v. Bradley, 293 S.W. 553, have been before this court on one question or another a number of times. Shipp v. Rodes, 196 Ky. 523, 245 S.W. 157; Shipp v. Bradley, 210 Ky. 51, 275 S.W. 1; Shipp v. Stoll, 200 Ky. 646, 255 S.W. 75; Shipp v. Doak, 211 Ky. 737, 277 S.W. 1020.
The facts out of which this controversy grows in their various aspects are stated in the opinions referred to, and will not be again stated in this opinion.
When this case was sent back to the circuit court and before a hearing in that court, the fiscal court of Fayette county entered into a compromise agreement with Rodes and also with Bradley, by the terms of which agreement the claims made against the said Rodes and Bradley were settled and compromised. These compromise agreements were filed in the proceedings in the circuit court and relied upon by Rodes and Bradley as a complete settlement and compromise of all matters and things between each of them and Fayette county. The question arose as to whether, under the circumstances and facts in this case, the fiscal court of Fayette county had the authority under the law to enter into the compromise agreements. It was insisted by the appellant Paul E. Shipp, who brought the taxpayer's suits, that the fiscal court of Fayette county had no such authority and that the suits which he had instituted and prosecuted could not be compromised or settled by the fiscal court, as he alone was representing Fayette county in this litigation, and that he had the authority to manage and control the course of the litigation until it came to an end.
This court in the case of Shipp v Rodes, 196 Ky. 523, 245 S.W. 157, has held that Shipp had authority to maintain the taxpayer's suits, but we do not understand the opinion to hold that the fiscal court was forever ousted of its authority to exercise the corporate powers of Fayette county, and we do not understand that opinion to hold that the power of the fiscal court so well defined, as it relates to matters such as are involved herein in the case of Commonwealth of Kentucky v. Tilton, 111 Ky. 341, 63 S.W. 602, 23 Ky. Law Rep. 753, and Williams v. Stallard, 185 Ky. 10, 213 S.W. 197, was modified or restricted.
The controlling question before the court at this time is whether the fiscal court, acting in good faith, had authority to make the compromise agreements which are relied upon as a complete accord and satisfaction of the claims in the taxpayer's suits. If the fiscal court was ousted of its jurisdiction so far as these matters are concerned by the institution of the taxpayer's suits, and if these suits were subject only to the control of the taxpayer without the direction or guidance or interference of the fiscal court, then the compromise agreements were made without authority and are wholly void. There is no middle ground. We must either hold that the corporate powers of the several counties of this state which are exercised by the fiscal courts may be completely destroyed by a taxpayer who sees proper to institute a suit which, in his judgment, ought to be instituted and which, in his judgment, the fiscal court has improperly refused to institute, or we must hold that the corporate powers of the several counties of the state cannot be so destroyed.
If it be assumed that the fiscal court of a county is sometimes derelict in its duty, that only proves that it is made up of fallible human beings, and if, by reason of such dereliction, some officious taxpayer desires to assume the duty of exercising the corporate powers of a county he may walk in and do so without let or hindrance, if we are to hold that the fiscal court may destroy its right to act concerning a particular matter because it did not act at the time some taxpayer thought it should act. If the fiscal court may be thus ousted of its jurisdiction, the corporate powers of a county may be easily destroyed, and when the corporate powers of a county are destroyed, then we can have no responsible head to the fiscal affairs of the county, and chaos would be the result. However, these questions are determinable from the law as we find it written in our statutes and the decisions of our courts construing the statutes. So far as this court is concerned, this question is one of first impressions. It has not heretofore been considered by the court. It is necessary, therefore, to consider the statutes conferring power upon the fiscal courts, and, as the statutes are not numerous, the task is not difficult.
The fiscal court is a constitutional court provided for by section 144 of the Constitution of our state. It consists of the judge of the county court and the justice of the peace, unless steps have been adopted for the court to consist of three commissioners elected by the voters from the county at large and the judge of the county court. The duties and powers of the fiscal court are not defined by the Constitution. Therefore it was left to the Legislature to prescribe its powers and duties.
Section 1834, Kentucky Statutes, is as follows:
"Unless otherwise provided by law, the corporate powers of the several counties of this state shall be exercised by the fiscal courts thereof respectively."
Section 1840, Kentucky Statutes, is as follows:
"The fiscal court shall have jurisdiction to appropriate county funds authorized by law to be appropriated; to erect and keep in repair necessary public buildings, secure a sufficient jail and a comfortable and convenient place for holding court at the county seat; to erect and keep in repair bridges and other structures and superintend the same; to regulate and control the fiscal affairs and property of the county; to make provisions for the maintenance of the poor and provide a poorhouse and farm and provide for the care, treatment and maintenance of the sick and poor, and provide a hospital for said purpose, or contract with any hospital in the county to do so, and provide for the good condition of the highways in the county, and to appropriate county funds to make provision to secure immigration into the county, and to advertise the resources of the county, and to appropriate county funds for the benefit of colleges and for infirmaries for the sick located in the county, and to execute all of its orders consistent with the law and within its jurisdiction, and shall have jurisdiction of all such other matters relating to the levying of taxes as is by any special act now conferred on the county court of levy and claims."
The first of the above-quoted sections provides that the corporate powers of the several counties of the state shall be exercised by the fiscal court. The second section quoted defines generally the powers and jurisdiction of the fiscal court. Among these powers is that "to regulate and control the fiscal affairs and property of the county."
In the case of Commonwealth v. Tilton, 48 S.W. 148, 20 Ky. Law Rep. 1056, the court after quoting section 1834, Ky. Stats., and referring to section 1840, said:
"We are of opinion that by these two sections of the statute all right of action for and on behalf of the county is in the fiscal court; and that until that court refuses to institute suit no one else may do so."
It would be a peculiar situation if all right of action for and on behalf of the county is in the fiscal court and yet the fiscal court has not the power to enter into a settlement in good faith of a matter involving the fiscal affairs of the county. As we understand this record, the fiscal court of Fayette county never at any time refused to institute a suit on the claims set up in the taxpayer's suits, but this court held that the circumstances were such that a refusal on the part of the fiscal court to institute the suit was not necessary before the taxpayer might proceed, but the fact remains, nevertheless, that the fiscal court did not refuse to institute a suit on these claims, and that cannot be charged against the court in a consideration of the question as to whether it has been ousted of its legal functions by reason of its conduct in connection with this litigation.
In the case of Henderson County v. Henderson Bridge Co., 116 Ky. 164, 75 S.W. 239, 25 Ky. Law Rep. 421, 105 Am.St.Rep. 197, the court had occasion to discuss the question as to whether a judgment against the sheriff enjoining him from the collection of taxes was a bar to a suit by the county to recover the same taxes. Judge Hobson, writing for the court, said: "Thus in Lyman v. Faris, 53 Iowa 498, 5 N.W. 621, the validity of a tax having been determined in an action against the board of supervisors, who were the managing agents of the county, it was held that an action to enjoin the collection of the tax could not be maintained by a taxpayer, as the supervisors represented all the taxpayers of the county in the defense which they had made to the former action on the same ground."
If the board of supervisors acting as managing agents for a county had entered into litigation wherein the validity of a tax was determined, their action was no stronger than that of a fiscal court compromising a...
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