113 Ky. 325 | Ky. Ct. App. | 1902
Opinion of the court by
Affirming.
The grand jury of Boyle county found a true bill and indictment against “The Fiscal Court of Boyle County, Kentucky,” charging the defendant with having unlawfully suffered and permitted a public nuisance on the public highway, “committed in manner and form as follows: The said fiscal court of Boyle county, Kentucky, in the county and (State aforesaid, on the - day of December, 1899, 'A. D., before the finding of this indictment, did -unlawfully and willfully suffer and permit the turnpike road, a public highway commonly known as the 'Danville and Perryville Turnpike Road,’ to become unfit for public travel and obstructed at a point on said road in front of and opposite the premises of A. B. Wingate; did unlawfully suffer and permit an engine and crusher to be left on said road at said point, and rocks to be piled up on said road at said point, and to so remain in said condition for an unreasonable length of time, to wit, for the period of ten days, so as to •become inconvenient and dangerous for the purpose of the ’travek'ug public, and a common nuisance of all good citizens passing and repassing over and along said public highway; the said public highway having been at the time acquired by the said fiscal court, and said court having assumed authority and ownership of same.” A demurrer was sustained to the indictment, and the Commonwealth has appealedfiection 144 of the Constitution provides that each county shall have a fiscal court, which may consist of the judge of the county court and the justices of the peace; or a county
But, having found- that the duty of keeping the public highways of the county in proper repair is one imposed by the law of this State upon the fiscal courts of the respective counties, the question then arises, can the court be proceeded against by its name as such, without naming or joining the officers constituting it? In Montgomery Co. v. Menefee Co. Ct., 93 Ky., 33, (13 R., 891), (18 S. W., 1021), this court had before It the question of practice in a mandamus proceeding seeking the performance of a ministerial duty, namely, the levy of a tax to discharge the liability of the defendant county. The defendant was proceeded against as “The Menefee County Court.” Said this court: “It seems to us that the delinquency complained of is the refusal of the individual officials intrusted with the performance of that duty to execute it. And such persons should be sued by.name, in order that the court might determine whether or not they are the proper persons to perform that duty, and to command them to p'erform it.” So, in the case at bar, if there is a duty imposed upon the court, it is one to be discharged by the officials constituting
We therefore conclude that the circuit court properly sustained the demurrer in this case, and the judgment is. affirmed.