Trimble County Fiscal Court v. Trimble County Bd. of Health

• Citation: 587 S.W.2d 276
• Parties: . TRIMBLE COUNTY BOARD OF HEALTH, Clyde Greenwood, County Judge, and Robert Moore, County Court Clerk, Appellees. Court of Appeals of Kentucky
• Decision Date: 14 September 1979
• Court: Kentucky Court of Appeals

Page 276

587 S.W.2d 276

TRIMBLE COUNTY FISCAL COURT, Dallas Moore, Magistrate Orvile Smith, Magistrate, Ivan Louden, Magistrate and Morris Garrett, Magistrate, Appellants, v. TRIMBLE COUNTY BOARD OF HEALTH, Clyde Greenwood, County Judge, and Robert Moore, County Court Clerk, Appellees.

Court of Appeals of Kentucky.

Sept. 14, 1979.

James F. Thomas, Newcastle, Bobby K. True, Bedford, for appellants.

E. Irene P. Long, Bedford, for appellee Trimble County Bd. of Health.

Hamilton, McClellan, Croley & Fendley, Bruce R. Hamilton, LaGrange, for appellee Clyde E. Greenwood.

Before HOGGE, HOWERTON and VANCE, JJ.

HOWERTON, Judge.

Dallas Moore, Orvile Smith, Ivan Louden, and Morris Garrett are magistrates in Trimble County, Kentucky; and, together with the county judge, they constitute the fiscal court. The magistrates appeal from a writ of mandamus issued by the Trimble Circuit Court ordering them to set a health tax rate of four (4) cents per $100 assessed property value. The rate had been established and requested by the Trimble County Board of Health, pursuant to KRS 212.725. The judgment also directed the appellee, Robert Moore, as county court clerk, to prepare the 1978 tax bills with the four-cent levy. Moore has not appealed from that judgment. The action was dismissed as to the appellee, County Judge Clyde Greenwood. As a member of the Board of Health and as chairman of the fiscal court, he supported the four-cent levy. Finally, the magistrates were ordered to personally pay the cost of this action which had been initiated against all of the parties herein by the plaintiff-appellee, Trimble County Board of Health.

On April 14, 1978, the Board of Health determined that the previous levy of 3.1 cents was insufficient to produce the revenue required to meet the public health needs in the county. A resolution was unanimously passed imposing a health tax rate of four cents, the maximum allowed by law. Only four of the seven members were present at the meeting. The resolution was approved by the Kentucky Department for Human Resources on May 1, 1978. The resolution was copied on a printed form for such purposes, and the document was signed by each of the four members who had approved its passage as well as the appropriate officer for the Department for Human Resources. However, the certification had not been completed by the Board secretary at the time the document was forwarded to the fiscal court.

The fiscal court met on September 28, September 30, and October 9, 1978, and each time the magistrates refused to set a rate higher than 3.1 cents. The Board of Health filed this action on October 21, 1978.

The magistrates have presented several allegations of error. We will not attempt to list each of them, but we will consider all of them in the order in which they were argued.

First, we find no reversible error in the trial court's refusal to permit the magistrates to depose the members of the Health Board. Even if we determined it would be proper for the magistrates to delve into the motives and factual reasons for the decision to raise the rate to the maximum amount of four cents, we cannot say that the trial judge abused his discretion in denying the request. CR 26 and CR 30. The court had ample reasons to deny the request on the grounds of relevancy, timeliness, delay in the proceedings, expense, and because the information desired was either public record, stipulated, or offered to be provided by the Board of Health at the court hearing, which was already scheduled.

The magistrates next complain that the trial court had no authority to order the county court clerk to place a four-cent health tax rate on the tax bills, since they had not approved the rate. The clerk was made a party and indicated that he would prepare the tax bills according to directions received from the circuit court. KRS 68.100 provides for tax levies to be adopted by the fiscal court, but if the trial court has the authority to require the fiscal court to levy the health tax rate, and we conclude that it does, then requiring the clerk to prepare the bills merely recognizes that what has been ordered to be done will be done.

The magistrates argue that the court costs should have been assessed against the fiscal court rather than against them individually, citing Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959). Hogan was an action by taxpayers to recover school funds expended for attorney fees and court costs in an action against the school board members. The case holds that the members have implied authority to employ an attorney and expend school funds to defend such actions. If the action does not concern individual responsibilities or malfeasance, a defense is necessary to accomplish the purpose for which the board was created.

In this case, the action was to require the members to perform a duty required by KRS 212.725. The court determined that the magistrates had failed to carry out their statutory duty, and the record is void of any reason for their refusal to act. The validity of the Board's resolution was never questioned until after the suit was filed. Good faith by the magistrates is certainly questionable due to their refusal to follow the advice of the county attorney, and because of their publication of a newspaper ad designed to create a public controversy with the tax increase.

We find a genuine distinction between the situation in Hogan, supra, and in this case. We cannot say that the trial judge abused his discretion in requiring the magistrates to pay the cost. KRS 453.040 and CR 54.04. See also, Mooney v. Denhardt, Judge, 144 Ky. 263, 137 S.W. 1059 (1911), authorizing the imposition of costs against a public official, and See Board of Aldermen of City of Ashland v. Hunt, 284 Ky. 720, 145 S.W.2d 814 (1940), concerning the effect of good faith.

The magistrates' most troublesome and serious allegation is that it was error for the trial court to issue the mandamus against them. The argument is not based on the appropriateness of mandamus or the power of the court. Instead, they attack the validity and enforceability of the Board's resolution on three grounds. First, they argue that the resolution was not "duly certified" as is required by KRS 212.725. Secondly, they contend that the resolution was premature, since it was considered and passed before the Department of Revenue certified the total amount of assessments for Trimble County in 1978. Finally, they allege that the resolution was not properly adopted by a majority of the members of the Board of Health.

KRS 212.725 provides that the Board of Health shall determine the health needs in the county, and if adequate funds are not otherwise appropriated, it shall establish a tax rate to meet the financial requirements. The Department for Human Resources must approve such action by a health board, and when such is done, a certified copy of the resolution is forwarded to the fiscal court which is then required to include the rate in the county's tax levy, along with levies for school districts, fire districts, and other taxing jurisdictions. The appropriate part of the statute reads, "The fiscal court shall upon receipt of a Duly certified copy of said resolution include in the next county ad valorem tax levy said public health tax . . . ." (Emphasis added.)

The resolution was passed on April 14, 1978. The four members present and voting signed the copy of the resolution. No official certification was added to any circulated copy until October 21, 1978, when the petition for mandamus was filed. The resolution was approved by the Department for Human Resources on May 1, 1978, and a copy of the form was mailed to Judge Greenwood on May 5, with directions to forward it to the fiscal court. The trial judge made no finding as to when the county court clerk received the copy on behalf of the fiscal court, but he did find that it was received prior to the time of...