Crittenden County Court v. Shanks

88 Ky. 475 | Ky. Ct. App. | 1889

JUDGE PRYOR

delivered the opinion of ti-ie court.

At the October term of the Crittenden County Court for the year 1882, the county judge, in conjunction with the magistrates of the county, and in accordance with the report of commissioners appointed for that purpose, made an appropriation for the construction of two bridges across Camp creek in said county at a cost of $2,250.

One of the appellees, Wilson, was appointed bridge commissioner to superintend the work with the power attempted to be conferred upon him to borrow the money at a fixed rate of interest and to execute the obligation of the county for its payment.

After these orders had been made, the court, being of the opinion that the location of the bridges made them liable to overflow and perhaps destruction by high water when built, concluded to have a route surveyed or designated for what is called in the record, a high water road, thereby avoiding the danger that would result to the structures if built as intended by the original order. Commissioners were appointed for that purpose, who made a favorable report, and the road located above or beyond the reach of high water. The order making the appropriation for building tlie bridges was set aside, and the commissioner, Wilson, in obedience to the order of the court refused or declined to make any negotiation, or take .any step for the erection of the bridges. The bridges to be built constituted, when erected, a part of the public highways of the county.

The appellees, who are citizens of the county, filed a petition in the Crittenden Circuit Court asking for a mandamus compelling the county court and its agent or •commissioner, Wilson, to construct the bridges as directed under the original order appropriating the money for that purpose. The circuit judge granted the writ requiring the appellant, the county court, and its commissioner to erect the bridges, upon the idea that the county court having once adjudged that the bridges were necessary, and appropriated money for that purpose, could not at a subsequent term of the court rescind that order. This is the only question raised, and we think was improperly decided by the court below. Petitions were presented to the county court asking for the erection of the bridges across or along the common highway, and also petitions favoring the discontinuance of so much of the old road as would be dispensed with by changing the route so as to place the highway beyond high water mark. These petitions were presented by those having a common interest in the highways of the county, and advised the county court as to the wants of the people, but no right of property was involved, or any individual right advanced or ■disregarded by making the order for the construction of the bridges or the order rescinding that order. No contract had been entered into with any one to perform this work, but the county court, as the representative of the corporation, or the county, had only exercised its discretion in making an appropriation that at one time they thought advisable; but, upon further consideration, deemed unwise. They had contracted with no one, and, in their legislative capacity, undertook to make the appropriation, but, whether legislative or judicial, it was the only party to the proceeding and had the right at any time to revoke the order making the appropriation until the rights of others became involved. In Lexington & Harrodsburg Turnpike Co. v. McMurtry, 6 B. M., 215, this court held that a judicial act by the county court determining the rights of individuals was final and could not, at a subsequent term of the court, be set aside at the mere will of the court. This doctrine is well understood, but has no application to a case like this, where the magistrates are assembled as a court of claims to make ordinary appropriations for public improvements, in which one citizen has as much interest as another. In fact, such an appropriation is non-judicial, and may' be. disregarded, at its' discretion, unless individual rights, have become involved. A municipal corporation, through its council, might make an appropriation for the improvement of its streets, and before any contract right had accrued deem it expedient to withdraw or annul the order making the appropriation, and the right to do so can not be questioned. The discretion confided to a county court in regard to the finances of the county and the appropriation of money for public or county purposes, can not well be controlled by the action of a higher tribunal. There was no money in the treasury and no levy had been made for the purpose of raising this money, and the commissioner had no power, as he, doubtless, wisely concluded, to pledge the obligation of the county for the loan of the money to enable him to make the improvements. Our attention has not been called to any special or general statute under which the counties of the State, or any of them, have the power, through their agents, to create obligations for the loan of' money, although the purpose may be to apply it to the use of the public, and, in the absence of such legislation,, the power does not exist. It results, therefore, that the county court, in the exercise of its discretion, has said that the bridges should be dispensed with, and, having complete power over the subject, the writ of mandamus should have been refused.

It seems that the county court discontinued that part of the old road rendered unnecessary by the establishment of the new road, and the appellees remonstrated against-the discontinuance and appealed to the circuit court from the order discontinuing it, and that ease has been considered with the case for the mandamus. That judgment must be reversed, because the jurisdiction of the circuit-court is appellate only in such cases, and there was no bill of evidence or exceptions from the county court, when it is plain that evidence was heard.

The judgment in each case is reversed and remanded, with directions to dismiss the appeal in the one case and dismiss the petition for a mandamus in the other, and for proceedings consistent with this opinion.