Upchurch v. Clinton County

• Decision Date: 18 December 1959
• Citation: 330 S.W.2d 428
• Parties: Welby UPCHURCH, Appellant, v. CLINTON COUNTY, etc., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 428

330 S.W.2d 428

Welby UPCHURCH, Appellant, v. CLINTON COUNTY, etc., et al., Appellees.

Court of Appeals of Kentucky.

Dec. 18, 1959.

Leonard E. Wilson, Jamestown, for appellant.

Hollis E. Edmonds, Russell Springs, John A. Sloan, Albany, for appellees.

STEWART, Judge.

Appellant, Welby Upchurch, is the owner of a farm situated in Clinton County and, among other things, he raises sheep on it. On June 23, 1957, a number of dogs of unknown ownership got into his flock, killing and injuring several of his ewes and lambs, and his damage from this loss was appraised at $1,142. He submitted a claim for this amount to the Commissioner of Agriculture for payment out of the Livestock Fund in accordance with KRS 258.295(2), but payment thereof was denied by the Commissioner. Thereafter, he filed this action against Clinton County and the members comprising the fiscal court of that county, appellees herein, wherein he sought to recover the damages he contends he sustained to his livestock. His complaint was dismissed, and he moves for an appeal.

The complaint stated in substance that, pursuant to the terms of KRS 258.195(1), each county was mandatorily required to employ a dog warden on or before July 1, 1954, and to establish a dog pound on or before July 1, 1955, and thereafter to maintain the same, and that appellees have wilfully failed and neglected, up to the present time, to consummate their official duties in this respect. A pertinent allegation of his complaint was that KRS 258.105(1) empowers the Commissioner of Agriculture to prescribe regulations for the enforcement of the terms and conditions of KRS Chapter 258 (herein referred to as the 'dog law'), and that one of the regulations promulgated by the Commissioner forbids the payment to any citizen of damages caused to livestock by dogs when the fiscal court of that citizen's county has failed to employ a dog warden and otherwise carry out the provisions of the dog law. Appellant further averred that had appellees performed their duty and complied with the dog law he would have been paid his damages above mentioned out of the Livestock Fund of the state, and that the acts of the members of the fiscal court of Clinton County in failing to put the dog law in force in that county caused him to suffer damages in the sum named heretofore. He also asked that an injunction issue requiring appellees to appoint a dog warden and maintain a dog pound in Clinton County.

On motion made by appellees, the lower court dismissed the complaint, giving as the reason that under CR 12.02 it failed to state a claim upon which relief could be granted. Like a general demurrer, filed pursuant to the provisions of the old Civil Code of Practice, such a motion admits as true the material facts of the complaint. See CR 12.02, Clay, Comment 7.

KRS 258.195(1) provides in part that the fiscal court of each county in this state shall on or before July 1, 1954, employ a dog warden, and shall on or before July 1, 1955, establish and conduct a dog pound. Under KRS 258.990(3) a violation of this subsection subjects a fiscal court member to a fine of not less than five nor more than one hundred dollars or to imprisonment from five to sixty days in jail, or he may be both fined and imprisoned.

The trial judge was of the opinion that the appointment of a dog warden by Clinton County and the setting up and maintenance of a dog pound therein were things to be done or not done according to the discretion of the members of the fiscal court of that county. Appellant insists the foregoing statutory subsection in plain unequivocal language imposed a ministerial duty upon appellees which should have been mandatorily complied with by them.

The essentials of a ministerial as contrasted with a discretionary act are thus set forth in 43 Am.Jur., Public Officers, sec. 258, p. 75: 'An official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature. Discretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. However, an act is not necessarily taken out of the class styled 'ministerial' because the officer performing it is vested with a discretion respecting the means or method to be employed.'

Tested by the foregoing statutory provisions and the principles of law recited in the preceding paragraph, it is our view there was a distinct duty expressly imposed by KRS 258.195(1) upon the members of the fiscal court of Clinton County to hire a dog warden and to bring into existence a dog pound. The duty required to be performed under this subsection was not of a discretionary nature; it was ministerial in character. The law states that a dog warden shall be appointed and a dog pound shall be established and maintained. The word 'shall' in each instance imports the absolute necessity of carrying out these legal conditions according to their tenor.

It is argued the...