Woodruff v. Shea

• Decision Date: 06 March 1913
• Citation: 153 S.W. 1005,152 Ky. 657
• Parties: WOODRUFF v. SHEA et al. [d]
• Court: Kentucky Court of Appeals

153 S.W. 1005

152 Ky. 657

WOODRUFF v. SHEA et al. ^[d]

Court of Appeals of Kentucky.

March 6, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by W. F. Woodruff against John H. Shea and others. From a judgment of dismissal, plaintiff appeals. Affirmed in part and reversed in part.

Burwell K. Marshall, of Louisville, for appellant.

E. P Humphrey, of Louisville, for appellees.

LASSING J.

Two questions are raised upon this appeal: First, the right or power of the fiscal court to create an office not provided for by statute, and to provide for the compensation of the appointee to such office; and, second, whether or not the members of the fiscal court and the county judge, sitting as a member of that body, are, under section 4281t, subsec. 2 of the Kentucky Statutes, liable individually and on their official bonds for the money so expended, in the event it is held that the court was without power to create the office and make the appointment.

This litigation arose in this way:

The fiscal court of Jefferson county, on January 4, 1910, elected or appointed John H. Shea clerk of the fiscal court, at a salary of $225 for the month of January and $250 per month from February 1, 1910, to May 31, 1910, at which time he resigned as clerk of the fiscal court. On June 7, 1910, the court adopted the following resolution: "It was moved by Justice Dorsey and seconded by Justice Vogt that the order allowing three thousand ($3,000) dollars per annum to the county clerk for services rendered fiscal court be reconsidered; and that commencing June 1st, 1910, the county clerk be allowed two hundred ($200) dollars per annum for attending the meetings of the fiscal court and taking the minutes as required by section 1835 of the Kentucky Statutes; and that commencing June 1st, 1910, three hundred and fifty ($350) dollars per month be allowed an auditor for keeping the accounts of the fiscal court, the accounts of the contractors on road work and auditing all claims, etc., against the county."

Under this employment the said Shea worked until January 31, 1912, when, by resolution, his salary was increased to $400 per month, and he continued to receive said salary from that time until August 31, 1912; the total sum received by him, under said employment as clerk and auditor of the fiscal court, amounting to $11,025.

Conceiving that the appointment of Shea, as clerk and auditor of the fiscal court, was unauthorized by statute, illegal, and void, W. F. Woodruff, a taxpayer of Jefferson county, for himself and other taxpayers, requested the county attorney to institute suit against said Shea to test the validity of his employment, and, if found illegal, to recover of him the money which he had received thereunder, and likewise to recover of the members of the fiscal court and the county judge, as a member of said court, any part of said moneys which could not be recovered of said employé. The county attorney, evidently being of opinion that the employment was valid, declined to bring suit, and thereafter Woodruff himself instituted suit against Shea, in which he set out the fact of his employment and the payment to him thereunder of the sum which the record shows he had received, to wit, $11,025, and prayed judgment against him for that amount. The members of the fiscal court and the county judge, as a member of that body, were made parties, and a recovery against them individually was sought under section 4281t of the Kentucky Statutes. The defendants demurred to the petition, and, upon consideration, the trial judge, being of opinion that the employment was valid, sustained said demurrer. The plaintiff declined to plead further, the petition was dismissed, and he appeals.

Section 1840 of the Kentucky Statutes, defining the jurisdiction of the fiscal courts, has been many times before us for construction. Wortham v. Grayson County, 13 Bush, 53; Morgantown Deposit Bank v. Johnson, 108 Ky. 507, 56 S.W. 825, 22 Ky. Law Rep. 210; City of Covington v. Kenton County, 82 S.W. 392, 26 Ky. Law Rep. 677; Hopkins County v. Givens, 96 S.W. 819, 29 Ky. Law Rep. 993; Young v. Jefferson County, 100 S.W. 335, 30 Ky. Law Rep. 1209; Kline v. Jefferson County, 101 S.W. 356, 30 Ky. Law Rep. 1344; Fiscal Court v. Pflanz, 127 Ky. 8, 104 S.W. 1002, 31 Ky. Law Rep. 1242; Mitchell v. Henry County, 124 Ky. 833, 100 S.W. 220, 30 Ky. Law Rep. 1051; Vaughn v. Hulett, 119 Ky. 380, 84 S.W. 309, 27 Ky. Law Rep. 35; Hollis v. Weissinger, 142 Ky. 129, 134 S.W. 176. An examination of these cases shows that this court has uniformly held that the fiscal court is a court of limited jurisdiction or powers, and that it had no rights or power to appropriate or expends funds of the county, excepts provision is made therefor in the statute. Not only so, but it has also held, wherever the question has arisen, that the fiscal court is without power or authority to pay for the services of persons appointed to office, when there was no express authority in law for their appointment. Hopkins County v. Givens, 96 S.W. 819, 29 Ky. Law Rep. 993; Vaughn v. Hulett, 119, Ky. 380, 84 S.W. 309, 27 Ky. Law Rep. 35; Fleming County v. Howe, 121 Ky. 478, 89 S.W. 225, 28 Ky. Law Rep. 458; Flowers v. Logan County, 148 Ky. 822, 147 S.W. 918. It has also held that the court is without authority to pay for services which, by statute, are required to be rendered by a public officer, when no provision is made for compensation for such services. Wortham v. Grayson County, 13 Bush, 53; Morgantown Deposit Bank v. Johnson, 108 Ky. 507, 56 S.W. 825, 22 Ky. Law Rep. 210.

In the face of these decisions, it cannot successfully be maintained that the fiscal court, in appointing appellee Shea clerk of its said body, acted within its jurisdiction; nor was such act justified by the necessity arising out of the fact that the business of the court has so increased, in recent years, that the best interests of the county required such appointment to be made. Practically this same question arose in Morgantown Deposit Bank v. Johnson, 108 Ky. 507, 56 S.W. 825, 22 Ky. Law Rep. 210. There, the fiscal court attempted to pay to the county clerk $350 for recording the school census reports for a number of years. The court proceeded upon the idea that the recording of these reports materially increased the labors of the county clerk, and that he was entitled to compensation therefor. In denying this right this court said: "The fiscal court is a court of limited powers, and has no jurisdiction to appropriate county funds, except as it is authorized by law to do so (Kentucky Statutes, § 1840), and there is no provision of the statute which authorizes it to pay the county court clerk for his services in recording the list of children filed in his office by the trustees of the school districts, as provided by Kentucky Statutes, § 4449; and it is expressly provided in subsection 1 of section 1749 of the Kentucky Statutes that no officer shall demand or receive any fee for services rendered, when the law has not fixed a compensation therefor. This provision of the statute was construed in the case of Wortham v. Grayson County Court, and it was held that when the state requires services to be performed by its officers, for which no remuneration is provided, they must be regarded as ex officio services, for which no charge can be made."

In Mitchell v. Henry County, 124 Ky. 833, 100 S.W. 220, 30 Ky. Law Rep. 1051, the fiscal court undertook to create the office of janitor for the jail building, grounds, etc., and fixed his salary at $250 per annum. There was a provision in the order that the jailer might, at his option, perform the services of janitor and receive the salary, instead of an appointee to that position. These services were, by statute, required to be performed by the jailer, and no remuneration therefor was provided. This court, in disposing of the claim of this officer to compensation fixed by the fiscal court, said: "The fiscal court is one of special and limited jurisdiction. It has no power to appropriate money of the county, except as authorized by law. *** There is no statute authorizing the fiscal court to make any kind or character of contract with the jailer. The jailer is elected by the people; the statute fixes his allowances and fees for all services rendered by him; and the court has no power to change or allow them in any other manner. *** By section 1749 of the Statutes it is provided: 'No fee bill shall be made out or compensation allowed hereafter for any ex officio services rendered or to be rendered by any officer.' Therefore, when the statute requires services to be performed by its officers (as in section 3948), for which no remuneration is allowed, they must be regarded as ex officio, for which no charge can be made."

In Hollis v. Weissinger, 142 Ky. 129, 134 S.W. 176, the fiscal court of Jefferson county made an appropriation for the purchase and use of an automobile, for use of its members in inspecting and supervising the public roads. It sought to justify its action upon the ground of the necessity and economy of such method of inspection and supervision. Upon appeal, this court disposed of the question in the following language: "This argument would be entitled to great weight, if the matter of the appropriation for the purchase of the automobile had been merely a question of necessity addressed to the discretion of the fiscal court; but it can have no effect upon our decision of the case, if the appropriation or expenditure of the county's funds by the fiscal court for the automobile was unauthorized by law. If we reach the conclusion that the fiscal court was without power to so apply the funds of the county, the question of whether the purchase...