127 Ky. 444 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
Willis Green and others on the 30th day of April, 1907, filed in the county court of Breckinridge county their petition for the opening of a new road. By consent of the parties, a jury was waived and the question of -damages accruing to those over whose land the proposed road was to run was submitted to the county court. This court awarded appellee W. E. Rhodes the sum of $850. The county attorney of Breckinridge county, believing that the allowance of $850 was excessive, appealed on his own motion, and without any order from the county or fiscal court, to the circuit court of Breckinridge county from so much of the order as allowed appellee the sum of $850.
Por the purpose of getting the question involved fairly before us, it will be necessary to set out the following sections of the Kentucky Statutes of 1903;
“Sec. 126. Each county attorney shall attend all county and fiscal courts held in his county and conduct all cases and business in said court touching the rights or interests of the county, and oppose the allowance of all claims not legally presented or unjust, and give the court and the several county officers legal advice concerning any county business within the jurisdiction of any of them.
“Sec. 127. He shall attend the prosecution of all eases in his county in which the Commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend and conduct actions, motions and proceedings of every description, before any of the courts of this Commonwealth in which the county is interested, and shall in no instance take a fee or act as counsel in any case ini opposition to the interests of the county. He shall also attend the circuit courts held in his county, and aid the Commonwealth in all prosecutions therein, and in the absence of an acting Commonwealth attorney, he shall attend to all Commonwealth’s business in said courts. ’ ’
“Sec. 129. He shall oppose the wrongful opening, alteration or discontinuance of any public road, and oppose the improper granting of tavern, merchant’s*447 and drug license, and may, if he thinks a license has been improperly granted, prosecute an appeal without security to the circuit court in the name of the Commonwealth. ’ ’
“Sec. 4303. No appeal shall lie to the Court of Appeals from the decision of a county court ordering a new road to be opened, or refusing such an order, or ordering an alteration in a road, or refusing the same, or discontinuing a road, or refusing such discontinuance, allowing gates to be erected across a road, or refusing to allow the same, or abolishing such gates. But in all such cases, the party aggrieved may prosecute an appeal within sixty days by executing bond as required in other cases to the circuit court of the county, and the appeal shall be tried de novo; and from the decision of the circuit court either party may prosecute an appeal to the Court of Appeals, and the latter court shall have jurisdiction only of matters of law arising on the record of such cases. ’ ’
“Sec. 978. Appeals may be taken to the circuit court from all orders and judgments of the fiscal or quarterly court in civil cases where the value in controversy is over fifty dollars, exclusive of interest and costs, * * * and in all other cases allowed by law.”
Prom the above sections of the Kentucky Statutes, it will appear that the county attorney must oppose illegal claims and unjust allowances of public money; that he must give legal advice to the county officials ; that he must prosecute all cases on behalf of the county; that he must oppose the wrongful opening, alteration, discontinuance of any public road, and the wrongful and improper granting of tavern, merchant’s,- or drug license, and may, if he thinks a
In discussing this question, it is not our purpose in the least to reflect upon the men constituting our county and fiscal courts, for we are of the opinion that in by far the greater number of the counties of this Commonwealth these men are conscientious, faithful, and efficient officers. Now and then, however, there are officers who do not perform their duties as they should, or perform them in such a manner as to be subversive of the true interests of the people. For the purpose of meeting the latter condition, no limitation should be put upon the rights of the courts to review their action, unless it appears from the Statutes that the Legislature plainly intended it. To hold that the courts making the error are vested with the sole power of determining whether or not an appeal should be prosecuted from their judgment would virtually be to deny the. fight of appeal in the very eases where the interests of the county demand it. If the county attorney, believing firmly that the action of the county or fiscal court was improper, had to turn to these courts and ask the right to prosecute an appeal for the purpose of reviewing their action, we fear that, instead of being the legal representative of the county and its people, he would become the mere tool of the county or fiscal court. It may be contended that to allow the county
Counsel for appellee relied upon the case of Montgomery County v. Tipton, 15 S. W. 249, 12 Ky. Law Rep. 847. In that case the court said: “There is no provision requiring the county attorney to oppose the opening of a new road, and, while we think such a duty is incumbent upon him when the county court determines the necessity for the road and establishes it, no- appeal should be allowed unless directed by the county court, conceding that the right of appeal exists in behalf of the county. The statute provides that it shall be the duty of the county attorney, when directed by the county court, to institute and conduct suits, motions, and prosecutions of every description before any of the courts of this Commonwealth in which the county is interested. In this case the county court wants the road established, and, in our opinion, the appeal in such a case should be dismissed.” Prior to this decision, this court, in Commonwealth v. Kimberlin, 8 Bush, 444, laid down the following rule: “Any private citizen who will be affected by a proposed alteration in a publib road may make himself a party to the proceeding, and, if aggrieved by the final order of the county court,
Judgment reversed, and cause remanded for proceedings consistent with this opinion.