138 Ky. 59 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
The affairs of the county, whether honestly administered, had been, to say the least of it, loosely conducted; that is, there were not such records of accounts kept as would be a proper check upon the public expenditures, and in many instances no record at all was kept. The practice of letting individuals of the fiscal court expend the public money as they deemed necessary was irregular as well as dangerous. Confusion necessarily resulted. Opportunity was undeniably made for peculation and extravagances. Public accountants employed by’ the new administration made up a balance sheet of the county’s af
Appellant by his testimony, and by what is a more satisfactory character of evidence, his passbooks kept by the bank where he deposited the money, shows satisfactorily that every dollar which had been placed in his hands by the fiscal court had been applied for the purposes designated by the court, and where none Avas designated, as in the instances where he sold the material in the old courthouse building, it was applied to other county purposes, all of which was reported to the fiscal court, and approved by that body by entries of record. Logan county contends in this suit, that notwithstanding such application, it ought to recover the money, because the manner of its appropriation by the fiscal court was contrary to the statute, and was therefore void. The opinion in Boyd County v. Arthur et al., 118 Ky. 932, 82 S. W. 613, 26 Ky. Law Rep. 906, is relied on by appellee as controlling authority. In that case the Boyd county fiscal court had done, so far as appropriating public money for public road purposes, apportioning it among the magisterial districts, and appointing the magistrates commissioners to expend it, just what had been done by Logan county here. But the proceeding in the B'oyd County Case was radically different from the nature of this action. We held in
Upon the facts in this record the circuit court found that the public money in the hands of ’Squire Flowers had all been accounted for, had been applied to legal ends, and that the county had received, and the public enjoyed the benefits from the expenditures in as full a manner as if the most exact compliance with the statute had been observed. We do not feel authorized from this record to disturb that finding. The burden was upon appellant to show a proper application of the money. No presumption is indulged in his behalf under such circumstances. He did not keep accounts of his dealings, nor separate accounts of the various funds given into his charge. Ordinarily that circumstance would warrant an inference unfavorable to him. He was an old man, a farmer who had large business interests, and who was a successful business man. He did not know hów to keep books, it seems. But his knowledge of how to build and how to repair roads, and how to buy material and employ labor, how to sell what he had to sell, and how to drive a good bargain in making contracts for public works, was first class. He was also diligent, attentive to the public affairs, and exacting on its behalf. He was a forceful, practical man, whose judgment and services in these matters appear to have been really valuable. It seems as if he was the leading spirit in the movement in his county for public improvements. No charge is made against his honesty. No doubt is entertained as to his business sagacity. No question was suggested as to his vigilance. The only point now urged is that
One of the items which was originally embraced in the suit, but later withdrawn, was the appropriation to the appellant of $1,650 to build a bridge across Muddy river at Duncan’s. Appellant had discounted that warrant to Geo. L. Gillum & Son. He used $1,108.17 in building the bridge. $260 he paid out in repairing public roads in his district, which he had been directed by the fiscal court to have repaired. The remainder he asked to have applied on account of his services. The warrant which he had sold to Gillum & Son was repudiated by the county. Gillum & Son-brought suit upon it against the county treasurer, and against this appellant Flowers. The court adjudged that although the warrant was void, and the assignment of it was without authority, yet as all the parties had acted in good faith, and the county had actually received the benefit of the expenditure of $1,108.17 in the building of the bridge, it was compelled to pay to Gillum & Son that much of the warrant sued on. Milliken v. Gillum &
The several fiscal courts of the state are given jurisdiction to appropriate county funds authorized by law to be appropriated; to erect- and keep in repair necessary public buildings; to build bridges and keep them in repair; to provide a poorhouse and farm (section 1840, Ky. St. [Russell’s St. section 2795]); and by section 4306, Ky. St. (Russell’s St. section 5439), those courts .have general charge and supervision of the public roads and bridges of the county. The section continues: “The public roads shall be maintained either by taxation or by hands allotted to work thereon (or both) in the discretion of the respective counties.” The roads-and bridges of Logan county were kept up by taxation and allotment of hands. Most of the roads were not macadamized. But especially in Russellville precinct there were some six or eight turnpike roads, aggregating considerable mileage. They had been built many years ago at the expense of the precinct in which they were located, under a provision of a special statute. There had never been tollgates upon them. They were a part of the public road system of the county, free to public travel, maintained by the fiscal court in the
The contention of appellee is, and such was the view seemingly entertained by the court below, that the members of the fiscal court cannot be allowed anything for their services except their attendance upon sessions of the court. It was held that Logan county does not maintain a free system of turnpikes under the control and supervision of the fiscal court. The county does maintain a system of turnpike roads, although the system has not yet been extended to every part of the county. These roads are free for public travel. The turnpikes of this state as originally operated were toll roads, whether owned by the state or the counties, or private corporations, or by the counties, state and private ownership jointly, as was frequently the case. In later years provision had been made by law for the counties’ acquiring the entire ownership of such roads, and when so acquired, as has been done in most instances, they may be operated by the counties as toll roads or as free roads. If operated as free roads, then they are
Boyd County v. Arthur is again cited and relied upon by the appellee. That case does not show whether there was a system of free turnpike roads in Boyd copnty. The court assumed, in absence of such allegation, that there was not, and held that in that event the members of the court could not be appointed to do work for the court and to be paid by the county. That was because a statute forbade it in that state of case (section 1749, Ky. St. as frequently applied by this court. Wortham v. Grayson Co., 13 Bush, 53; Mitchell v. Henry Co., 124 Ky. 833, 100 S. W. 220, 30 Ky. Law Rep. 1051; Pulaski Co. v. Sears, 117 Ky. 249, 78 S. W. 123, 25 Ky. Law Rep. 1381; Daviess Co. v. Goodwin,, 116 Ky. 891, 77 S. W. 185, 25 Ky. Law Rep. 1081. There is no public policy which prohibits the Legislature from doing anything which the Constitution does not prohibit. The idea that a public official cannot employ himself to do work for the public is the common-law view of the implied limitations on the powers of a trustee. But
Whereupon the judgment is reversed on the original appeal and affirmed on the -cross-appeal. Remanded, with directions to dismiss the petition.