129 Ky. 48 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
■ In the month of April, 1905, the fiscal court of Logan county elected appellant C. Henry Harrison to the position of county treasurer. He qualified as such, and executed bond with the United States Fidelity & Guaranty Company of Baltimore as surety. Harrison held the office for 11 months, settled his accounts in full with a committee appointed by the fiscal court, and resigned his office on March 8, 1906. This settlement was reported to the fiscal court by the committee, and it was approved and ordered to be recorded by that court in the month of April, 1906. In May, 1906, appellees Logan county and John W. Milliken, its then treasurer, brought this action against appellants, seeking a judgment against them for $5,095.06. It was alleged in the petition that during Harrison term of office there was paid to him from various sources different sums of public money, amounting in the aggregate to $58,934.29, and that during his term of office he only paid out the sum of
Counsel for each party have filed able and exhaustive briefs, but after considering them and the record in the case we deem it unnecessary to consider and discuss all the points presented. Section 931, Ky. Stats., 1903, is, in part, as follows: “It shall be the duty of said treasurer to receive and receipt for all moneys due, or to become due, to said county from the several collecting officers thereof, or from any other person or persons whose duty it is to pay money into the county treasury; all moneys so received by him to be held subject to the order of the fiscal court of the county.” Thus it will be seen that the treasurer is purely a ministerial officer, and is the custodian of the funds belonging to the county, and must pay them out under the orders of the fiscal court. It is not charged that Harrison paid out this money without orders of the fiscal court, but the claim is that he paid
The first of these cases is Morgantown Deposit Bank v. Johnson, 108 Ky. 507, 56 S. W. 825, 22 Ky. Law Rep. 210. The matter in litigation in that case was a claim allowed the county court clerk for recording a school census report. The clerk assigned his-claim to the bank, and it instituted an action against, the sheriff and the county for the recovery of the amount of the claim. The lower court refused the
The third case is Pulaski County v. Sears, 117 Ky. 249, 78. S. W. 123, 25 Ky. Law Rep. 1381. In that case the fiscal court of Pulaski county appointed a justice of the peace in each magisterial district with the power to assist thé county judge in keeping the roads in repair in that county in their respective districts, and were subsequently allowed, by an order of the fiscal court, a sum in payment for their- services, and the county refused to settle. Sears, one of the magistrates, brought the action to recover the money allowed him. The lower court sustained his claim, but upon, appeal to this court the judgment was
The fourth case is Vaughn v. Hulett, 119 Ky. 380, 84 S. W. 309, 27 Ky. Law Rep. 35. In that case the fiscal court allowed the overseers of the roads in the county a salary not exceeding $50 per annum. This-court decided that the fiscal court was without power to make such an allowance, as the statute fixed the compensation for overseers, and the fiscal court had no right to change the statutes in this manner. The action was brought hy a taxpayer.
The fifth case in Boyd Co. v. Arthur, etc., 118Ky. 932, 82 S. W. 613, 26 Ky. L. R. 906. In that case the fiscal court made appropriations to work the roadsineach of the magisterial districts, and then appointed the justices of the peace to work in their respective districts in constructing and maintaining the county roads, and allowed each of them $3 a day. The county judge ordered an appeal from the order, and appointed an attorney to take and prosecute the appeal. This court decided that the order was improperly made; that the fiscal court had no right to appoint the members thereof to the position named, and they had no right to hold dual positions, and could only receive as pay or fees such compensation as was allowed hy law to justices of the peace.
The sixth case is Mitchell v. Henry Co., 124 Ky. 833, 100 S. "W. 220, 30 Ky. L. R. 1051. In that case the fiscal court made an annual allowance to the jailer of the county in lieu of all fees allowed him hy statute. This court decided that the order was void because the fiscal court had no power to change the statute' and make an allowance not authorized hy it.
These cases have no direct applieatipn to the one
It is also claimed that the warrants issued by the clerk and the orders of the overseers upon the treasurer were without authority of law. The form of the warrant issued by the clerk is as follows: “No. 346. State of Kentucky, Fiscal Court of Logan County. October Term, 1904. It is ordered by the court that J. W. Clark be and he is hereby allowed the sum of five hundred dollars, payable out of levy 1905, for courthouse commr. Attest: M. B. Morton* Clerk F. C. L. C.” Appellees’ counsel claim that there is no law authorizing the clerk to issue such a warrant; that his duty was to copy the’ whole of the order of the fiscal court. The statute is silent as to the duty of the clerk in this regard. "We know that this manner of issuing warrants has been in voghe by the county clerks of the State for a great many years. An order of the fiscal court in allowing claims against the county often covers several pages of an order book. The form, however, is about as follows: It is ordered by the fiscal court, naming the county, that the following claims be and they are hereby allowed, and then continues, giving the names of the persons and the amounts allowed each of them, and a short statement of the services rendered for which the money was appropriated. It would be unnecessary and a great hardship to require the clerk to copy for each person named in the order the whole of it. In our opinion it was no violation of the law for the clerk to issue the warrant referred to.
Appellees also contend that the orders with reference to payments made for labor on the roads were made without authority of law. By section 4311, Ky. Stats., 1903, the overseers of roads are required to
Appellant Harrison paid some small claims, amounting in all to about $100, upon orders which were irregular; but it appears they were proper and just claims against the county. Appellant Harrison should not be required to pay these claims, for they were just claims against the county, and there is no doubt about his good faith in the payment of them. This principle was expressly enunciated in the case of Sweeney v. Commonwealth, 118 Ky. 912, 82 S. W. 639, 26 Ky. Law Rep. 877.
_ For these reasons the judgment of the lower court is affirmed on the cross-appeal, and reversed on the original appeal, and remanded for further proceedings consistent herewith.
Petition for rehearing by appellee overruled.