Slayton v. Rogers

• Decision Date: 06 February 1908
• Citation: 107 S.W. 696,128 Ky. 106
• Parties: SLAYTON ET AL. v. ROGERS ET AL.
• Court: Kentucky Court of Appeals

107 S.W. 696

128 Ky. 106

SLAYTON ET AL. v. ROGERS ET AL.

Court of Appeals of Kentucky.

February 6, 1908

Appeal from Circuit Court, Muhlenberg County.

"To be officially reported."

Action by T. J. Slayton, suing for his own use and for the benefit of all other taxpayers in Muhlenberg county, against J. L Rogers and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Willis & Meredith, for appellants.

Belcher & Sparks, for appellees.

CLAY C.

In this action T. J. Slayton, suing for his own use and for the benefit of all other taxpayers of Muhlenberg county, seeks to recover the sum of $500, which was allowed by the fiscal court of Muhlenberg county to J. L. Rogers, county attorney for services performed under an appointment by the fiscal court to act as commissioner in the settlement and compromise of the bonded indebtedness of said county; also for the sum of $375, composed of several sums allowed to appellee J. L Rogers while he was county attorney of Muhlenberg county for services as commissioner appointed by the fiscal court to settle with the sheriff of the county for the years 1899, 1900, 1901, 1902, and 1904. The petition is in two paragraphs; the first setting out the sum allowed appellee Rogers for services as commissioner in the settlement of the bonded indebtedness, and the second embracing the items allowed him for services as commissioner in settling with the sheriff of Muhlenberg county. Appellee filed a demurrer to each paragraph of the petition. The demurrer as to the first paragraph was overruled, and as to the second sustained. Appellee thereupon filed an answer and an amended answer to the first paragraph, alleging that his services as commissioner to settle the bonded indebtedness were performed under appointment by the fiscal court, and in the federal court and in courts outside of the state of Kentucky. Appellant thereupon filed a demurrer to appellee Rogers' amended answer, which was overruled. Appellant declining to plead further, his petition was dismissed, and an appeal granted to this court.

Besides other sections of the statutes which relate to the opening and closing of roads, and the granting and refusing of licenses, and which it will not be necessary to consider, the duties of the county attorney are embraced in sections 126, 127, Ky. St. 1903. Section 126 is as follows: "Each county attorney shall attend all county and fiscal courts held in his county, and conduct all cases and business in said court touching the rights or interests of the county, and oppose the allowance of all claims not legally presented or unjust, and give the court and the several county officers legal advice concerning any county business within the jurisdiction of any of them." This section provides merely that the county attorney shall transact the county's business in the county and fiscal courts of his own county, and he shall give county officers legal advice concerning any of the county's business within the jurisdiction of any of them. It will be observed that this section does not make it the duty of the county attorney to advise said county officers or court except it be county business and within their jurisdiction. Section 127 is as follows: "He shall attend to the prosecution of all cases in his county in which the commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend, and conduct actions, motions and proceedings of every description, before any of the courts of this commonwealth in which the county is interested, and shall in no instance take a fee or act as counsel in any case in opposition to the interests of the county. He shall also attend the circuit court held in his county, and aid the commonwealth attorney in all prosecutions therein, and in the absence of an acting commonwealth's attorney, he shall attend to all commonwealth's business in said courts." This is the broadest clause covering county attorneys' duties. In construing sections 126 and 127, this court has gone to the extent of holding that, even without direction by the fiscal court, the county attorney has the authority to prosecute appeals to this court; but it has never been, nor could it be, held that these sections require the county attorney to perform services in a federal court, or in courts outside of the state of Kentucky. The language, "courts of this commonwealth," can mean only such courts as are organized under the Constitution and laws of the state of Kentucky. Neither the federal courts nor the courts of other states, then, are courts of this commonwealth. Under the most liberal construction of the above sections of the statute, it cannot be said that the law imposes upon the county attorney the duty of representing the county anywhere else except in the courts of the commonwealth of Kentucky. Nor is the duty of settling with the sheriff one imposed by law upon the county attorney. Section 4146, Ky. St. 1903, is in part as follows: "Each sheriff shall, when required by the fiscal court, settle his accounts of county or district taxes; and at the regular October term of each year the fiscal court shall appoint some competent person to settle the accounts of the sheriff of money due the county or district."

It is the contention of appellant, not that the duty of settling with the sheriff is imposed upon the county attorney, but that it was the evident purpose of the Legislature that the county attorney should not be appointed for that purpose. The reason advanced is that the county attorney is required by law to file exceptions to the settlements of sheriffs, and that this duty disqualifies him from acting as commissioner. As is well argued by counsel for appellee, if the county attorney be disqualified for this reason, then the sheriff would also be disqualified for the same reason; for the law provides: "Exceptions may be filed by either the sheriff or the county attorney." The question before us however, is not one of policy, but of law. So far as the question of policy is concerned, the Legislature in the acts of 1906 (Acts 1906, p. 158, c. 22, § 18), has provided that the commissioner appointed to settle with the sheriff shall be some other person than the commonwealth or county attorney. But, even if the question in this case were considered from the standpoint of policy alone, we are unable to say that the knowledge and information gained by the county attorney in going over the sheriff's accounts and making settlements with him would not better prepare him to determine whether or not exceptions should be filed to the settlement. As said before, however, the only question before us is one of law, i. e., was the county attorney, at the time of the services rendered in this action, disqualified by the Constitution or laws of this state from accepting the appointment by the fiscal court to settle with the sheriff? The statute provides for the appointment of a competent person. Competency is the only qualification prescribed. Nowhere in the Constitution or the statutes is there any provision disqualifying the county attorney from accepting the appointment. We therefore conclude that the fiscal court had the power to appoint appellee Rogers as...