133 Ky. 425 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
Appellant, a citizen and taxpayer of Clark countv, brought this suit on his own behalf, and the behalf of all other taxpayers of Clark connty, against appellee Haggard, as supervisor of roads of Clark county, for mandamus, requiring the appellee to comply with the statute concerning the letting of work on the public roads of tbe county at competitive bidding, instead of private contract. It is charged that the latter course was being pursued as to all tbe roads of Clark county. A general demurrer was sustained to tbe petition, and tbe action was dismissed. We are advised in briefs of counsel that the learned circuit judge based bis judgment upon a construction of the statute, which will presently be adverted to; but appellee here contends that there are certain technical defects in the- petition which alone are sufficient to sustain the lower court’s ruling. He also con
While at the common law player for process was the approved practice, under our Code that is not necessary. Upon the allegation of sufficient facts, process which is suitable to the relief demanded may be issued by the clerk where.the law allows him to issue it, or may be awarded by the court. There was not a notice by the plaintiff of the motion for mandamus in this ease. Appellee insists that, until there was such notice, the action of the trial court in ruling upon the demurrer to the petition was not a final order, although the petition was dismissed by the judgment; that the Code contemplates in this proceeding that the granting or refusing the writ of mandamus is the final order of the case; and that neither can be done until there is a motion for the mandamus. Under our Code of Practice the writ of mandamus is a statutory -writ, and is granted as a matter of right in a proper case to a party aggrieved. Maddox v. Graham & Knox, 2 Metc. 56. The trial is summary. Section 475, Civ. Code Prac. By Section 474, Civ. Code Prac., it is provided that, except in writs used by the court in enforcing its judgments, the writ of mandamus shall be obtained by motion as provided in title 10, c. 5, Code (applying to the trial of motions upon notice), and that “the applicant shall file ia petition wherein he shall state
The petition does not allege that appellant will sustain special damage, -or that anybody will sustain damage by reason of the alleged conduct or failure of the defendant to comply with the statute as to letting the work on the roads. There is no express provision of the statute in this State making it the duty of any public officer to prosecute actions for mandamus against derelict road supervisors. The duties of the latter officer appertain to a subject that directly concerns the public at large — the maintenance of the public roads of the counties. It affects them not -only in their convenience, but as taxpayers.
The petition in this case does not allege that Clark county works its road by taxation. It is argued by appellee that, unless the roads are worked by taxation, there is no authority for the supervisor’s letting the work at competitive bidding. Our statutes contemplate several different ways of maintaining our highways. One is the tollgate system, either by a private corporation or by the counties. Another is by the hands allotted to do the work, when overseers are appointed to superintendent the work. Another is by taxation or allotment of hands or both. In the last instances a supervisor may be appointed who, under the fiscal court, has charge of the work. There is no provision for the appointment of a supervisor of roads unless the county has elected to keep up its roads in whole or in part by taxation. Section 4313, Ky. St. So, when the petition alleges
This brings -ns to the consideration of the statute, the construction of which is involved in this action. It is Section 4315, Ky. St., as amended by the act of 1906 (Acts 1906, p. 431, c. 118), and as amended also by the act of March 24, 1908, p. 107, c. 42. This suit was begun four days after the amendment of March, 1908, and, as there was an emergency clause to the act, it took immediate effect. Appellant was doubtless unaware of that amendment. However, the statute before the amendment and now is not changed so far as the principal feature of this case is concerned. Biefore the last amendment, it was provided: “In counties wherein roads are worked by taxation it shall be the duty of the supervisor at the court house door in his county, on the first Monday in March in each year after twenty days written or printed notice posted at each voting place in the county, to let out to the lowest and best bidder, who shall give bonds with surety, approved by the supervisor, the working and keeping in repair of all the roads of said county,” etc. Under the statute as it now stands, it is provided that the supervisor “shall advertise for fifteen days in succession in some newspaper having general circulation in his county, or by written or printed notices posted up in three or more conspicuous places in each voting place in said county just preceding the regular monthly meeting of the fiscal court in April in each year, that the fiscal court
The scheme evolved by the Legislature for maintaining the public roads of the State contemplates
Although the writ can not go to the extent prayed for, in so far as the defendant ought to act, it can go and he will be required to advertise the letting of the work for bids to be submitted to the fiscal court of the county in accordance with the directions of the statute, as amended by the act of March, 1908. It is not suggested, nor do we apprehend- that it is a fact, that appellee was actuated by other than an honest
The judgment is reversed and cause remanded for proceedings consistent herewith.