153 Ky. 296 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
The county judge of Campbell County, at a meeting of tbe fiscal court, held December 2, 1912, informed tbe members tbat he bad appointed tbe appellant, George C. graver, county road engineer of Campbell County, and asked tbe members of tbe fiscal court to consent thereto. A motion to tbat effect was defeated, four of tbe six magistrates of tbe county present voting in tbe negative, one in tbe affirmative and tbe remaining magistrate and tbe .county judge refusing to vote. Thereupon tbe appellant and tbe county judge, suing in tbe name of the Commonwealth and in their own right, brought this action in tbe Campbell Circuit Court against tbe magistrates composing tbe fiscal court, praying tbat they be required, by tbe writ of mandamus, to confirm or consent to tbe appellant Traver’s appointment to tbe office in question.
The petition set forth tbe latter’s qualifications for tbe office and tbat be bad successfully passed, at tbe bands of tbe State Commissioner of Public Roads, tbe examination required by tbe statute and .received from tbat officer a certificate to tbat effect, and alleged tbat. tbe action of tbe members of the fiscal court in refusing their consent to bis appointment as county road engineer was without cause, unreasonable and arbitrary,. and, therefore, an abuse of tbe discretion with which the statute clothed them.
The General Assembly, by an act entitled, “An Act defining Public Roads — providing for their establishment, regulation and construction and use and maintenance — creating the office of road engineer, and prescribing the' duties thereof,” approved March 18, 1912, made numerous and radical changes in the road law; of the State. Section 48 of the act provides:
“There is hereby created in the several counties of the State of Kentucky the office of county road engineer. The county judge of each of the counties of this State, by and with the consent of the fiscal court, shall within thirty days after this law becomes operative, on or before the first day of October, 1912, and every two years thereafter, appoint a county road engineer, who, shall be either a reputable civil engineer or a man who. has had practical experience as a road supervisor or builder for two' years, and who shall have passed a creditable examination by the State Commissioner of Public Roads or one of his representatives. * * *”
Other provisions of the same section fix the salary Of the county road engineer require of him the taking of an oath of office, execution of a proper bond, maintenance of an office at the county seat, and provide for his: removal from office at any time by the county judge for incompetency, malfeasance or misfeasance in office, upon written charges, after a hearing, of which he shall have á ten days’ notice etc.
Other- sections of the act specifically define the duties and* powers of the county road engineer, and prescribe certain penalties for his failure to properly exercise and' perform same.
The only' evidence heard by the circuit court was furnished by the testimony of the appellant, Traver. It. proved him to be possessed of the qualifications required
So, if, as argued by counsel for appellants and we are willing to concede, the act of the fiscal court in consenting or refusing to consent to the appointment of the person nominated for county road engineer by the county judge is a purely ministerial act, it is, nevertheless, an act in respect to which that court has a discretion that is beyond the control of the circuit court or this court.
As said in City of Louisville v. Kean, 18 B. Monroe, 17, and reaffirmed in numerous cases of more recent date: “But the doctrine seems to be well settled that when the inferior tribunal, or its subordinate agents, have a discretion over the subject matter, that discretion cannot be controlled by mandamus, although it may have been improperly exercised. If there be a refusal to act upon the subject, or to pass upon the question upon which such -discretion is to be exercised, then the writ may be used to enforce obedience to the law; but when the question
The general principle which applies to the issue of a writ of mandamus is familiar. It may be issued to compel the performance of a ministerial act, but not to control discretion. It may also issue against a tribunal, or one who acts in a judicial capacity, to require it or him to proceed, but the manner of proceeding must be left to his or its discretion. If the case here presented were one in which the fiscal court of Campbell County had refused to act at all, the writ would lie to compel it to do so, but it would have to be left to its discretion to consent or refuse its consent to the appointment to the office of county road engineer of the person named by the county judge therefor. But such is not the case; the fiscal court did act and a majority of its members by voting refused to consent to the appellant Traver’s appointment to the office of county road engineer; this being true, they cannot again be required to vote upon the question whether they will consent to the appointment of Traver. Appellants rely upon the case of Morgan, Judge, &c. v. Champion, county road engineer, 150 Ky., 396, in which it was held that Champion, there asserting a right to the office of county road engineer for Anderson County, had not been legally appointed to the; office, the following excerpt from the opinion being regarded by appellants’ counsel as sustaining their right to .the relief here sought:
“Under section 48 of the statute it is made imperative upon the county judge, with the consent of the fiscal court, to make the appointment. If that duty is not performed, they can be compelled .by proper proceeding to perform the duty which the statute lays upon them. They will not be permitted for whimsical or arbitrary reasons to avoid the operation of the statute. We do not consider it proper at this time to go into a discussion of what reasons might be sufficient to sustain the refusal of the fiscal court to consent to any particular appointment or any particular selection which might be made by the county judge; but rest the matter by saying that they cannot, by their own arbitrary refusal to consent, defeat the filling of the office.”
The above paragraph does not sustain appellants’ contention. While it says the fiscal court will not be permitted for. whimsical or arbitrary reasons to avoid the
That feature of the opinion means no more than is expressed in the closing line of the quotation, viz: ‘ ‘ That the members of the fiscal court cannot, by their own arbitrary refusal' to consent, defeat the filling of the office.”
There is nothing in the record before us to indicate a whimsical or arbitrary purpose on the part of the fiscal court to prevent the election of a county road engineer for Campbell County. They cannot, without depriving them of the discretion given them by the statute, by mandamus, be compelled to vote for any particular person who may be appointed by the county judge. The county judge can, however, make another appointment, or others successively, until a person of his selection is named for the office to whose appointment a majority of the members of the fiscal court will consent.
Judgment affirmed.