183 Ky. 294 | Ky. Ct. App. | 1919
Opinion op the Court by
Reversing.
The county of Breathitt erected a bridge over a branch of the Kentucky river, which flows through the city of Jackson, which is the capital of the county. For a number of years, the fiscal court of the county, leased the right to collect tolls, from persons and vehicles, using the bridge, to the highest bidder, and the sums paid by the lessees, were turned into the treasury of the county and expended by its fiscal court, in defraying the necessary expenses of the county. On the 12th day of November, 1912, it was held, by a decision of this court, in the action of Breathitt County v. Hammond, et al., 150 Ky. 502, that the county of Breathitt did not have the .right to require the payment of tolls by the individuals of the public, who used the bridge. Thereafter, the appellee, O. A. Hagins, instituted this action against the county, to recover from it the tolls, which he had paid for the use of the bridge during a great number of years. The county denied its liability and, also, interposed a plea of the five years statute of limitation. Before answering, however, the county demurred generally to appellee’s cause of action, as stated, in his petition, but, the demurrer was overruled. The evidence upon the trial proved, that the fiscal court assuming the right to require the payment of tolls for the use of the bridge by the public, made orders, directing the leasing of the privilege of collecting' tolls,. for the use of the bridge, and entered into contracts with the lessees, who paid the sums agreed upon between them and the fiscal court for the right to collect tolls, into the county treasury and presumably were, thereafter, expended by the county, in the conduct of its. fiscal affairs. The custodians of the county’s funds, were not made parties to the suit, nor the lessees of the bridge, who collected the tolls. At the conclusion of the evidence offered upon the trial, the county moved the court to direct a verdict in its favor, but this motion was overruled. Instead, the court directed the jury to return a verdict for the sum of
It is not questioned, that if appellee had a right of recovery, at all, the judgment was for the proper amount, and the question of the right to sue the county and to recover upon the claim made hy appellee, was presented, by his demurrer to the petition and upon his motion for a directed verdict. A county is only a. quasi corporation and is distinguishable, so far as liabilities are concerned, from a private or municipal corporation, as a city or town. It is a political division of the state and a division for the purposes of government, and its activities, are, nearly, if not quite all, expended in matters of government, and in administering the sovereignties of the state, and for that reason, there are only a few things, for which a citizen may maintain a suit against the county. Being a portion of the state for governmental purposes, a county can not be sued, unless there is a statute, which expressly authorizes such an action to be maintained, or the right to do so, can be necessarily implied from an express power given, or it may be sued upon an express contract, which the county has authority to make. In accordance with this doctrine, it has been held, that an action can not be maintained against a county, for injuries sustained from neglect of its officials, in keeping public roads and bridges, in repair; nor for damages sufferred by prisoners, on account of defective, unhealthy jails; nor for defects, in the buildings of the county, which cause injuries, although the negligence, of the officials of the county, was gross; nor can the county be made liable for a positive wrongful act of its officials, in connection -with their duties as officials, unless the liability is imposed by statute either directly, or by necessary implication. Neither can a county be made liable to attorneys, who sue for a citizen, who maintains a suit for all taxpayers, and secured the return to the county of funds, which have been illegally disbursed. Downing v Mason County, 87 Ky. 208; Marion County V. Rives, etc., 133 Ky. 477; Wheatley v. Mercer County, etc., 9 Bush, 704; Hite v. Whitley Co., 91 Ky. 168; Simmons v. Gregory, 120. Ky. 116; Moberly v. Carter, 5 K. L. R. 694; Shepherd v. Pulaski Co., 18 S. W. 15; Sinkhorn v. Lexington, etc., 112 Ky. 205; Hardwick v. Franklin, 120 Ky. 78; Coleman v. Eaker, 111 Ky. 131; Moss v. Rowlett, 112
The judgment is therefore reversed and cause remanded for proceedings consistent with this opinion.