131 Ky. 642 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
Appellant, suing as a citizen and taxpayer of Lexington on his own behalf and on the behalf of all other taxpayers of the city, brought this suit against appellee, Kaufman, as auditor of the city, and bis surety, to recover in the name and for the city certain sums of money alleged to have been illegally audited by Kaufman as auditor, and paid out of the city treasury. During Kaufman’s term of office as city auditor there was paid about $1,000 to members of
Appellee argues that the members are to receive $3 a day for each day the council is in session, whether they are in attendance or not, inasmuch as the statute does not predicate their right to pay upon the fact of their attendance. But if one did not attend, he should forfeit double that sum, unless he was too sick, or was absent from the city. In that view the section w’ou-ld mean that the member was to get $3 for each meeting, although he may not have attended.. If he was absent (unless sick or out of town), he should forfeit $6 for each meeting, which would leave it that if he was out of town, or too sick to attend, he got $3 for each meeting, as well as $3 for each meeting that he attended. Appellant’s contention is that the pay provided by the statute is for service; that there could not be service without attendance; that the forfeiture of double pay for inexcusable absence,, under the context of whole clause, implies that for excusable non-attendance he shall not forfeit anything, but that he shall not be paid anything for a. service he did not render. To give the section the-construction contended for by appellant there- would have- to be read into it the words “for each meeting-attended. ’ ’ It must be presumed that the ^legislature
The duties of the city auditor are set out in sections 3127-3130, Ky. Stats., 1903. Under these pro
In this view of the case, as the petition did not state that the claims paid by appellee to the councilmen and aldermen were not certified and approved as required by the statute, the presumption must be that they were so certified; and, as- the petition did1 not claim that there was not an appropriation, and the money on hand, to pay the claims, it must be presumed on the demurrer that the appropriation had been made, and the money was on hand.