103 S.W.2d 272 | Ky. Ct. App. | 1937
Reversing.
The fiscal court of Johnson County allowed a claim in favor of the High Test Oil Gas Company for the sum of $427.60. From that order the county attorney, on behalf of the county, appealed to the circuit court. There the appeal was dismissed on the ground that the county attorney was without authority to prosecute the appeal. The correctness of that ruling is before us for review.
As the amount in controversy, exclusive of interest and costs, was over $25, and therefore the order was one from which an appeal would lie, section 978, Kentucky Statutes, the only question is, whether the county attorney may take the appeal without an order of the fiscal court.
The duties of the county attorney are prescribed by sections 126 and 127, Kentucky Statutes, reading as follows:
"Sec. 126. Each county attorney shall attend all county and fiscal courts held in his county, and conduct all cases and business in said court touching the right or interests of the county, and oppose the allowances of all claims not legally presented or unjust, and give the court and the several county officers legal advice concerning any county business within the jurisdiction of any of them."
"Sec. 127. He shall attend to the prosecution of all cases in his county in which the Commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend, and conduct actions, motions and proceedings of every description, before any of the courts of this Commonwealth in which the county is interested, and shall in no instance take a fee or act as counsel in any case in opposition to the interests of the county. He shall also attend the circuit courts held in his county, and aid the Commonwealth's attorney in all prosecutions therein, and in the absence of an acting Commonwealth's attorney, *762 he shall attend to all Commonwealth's business in said courts."
In support of the ruling below it is argued that the words "and oppose the allowances of all claims not legally presented or unjust," appearing in section 126, supra, merely impose on the county attorney the duty of appearing in the fiscal court and there opposing the allowance of claims and not elsewhere, and that by virtue of the language of section 127, the county attorney has authority to institute, defend, and conduct actions, motions, and proceedings of every description, before any of the courts of the commonwealth, only when so directed by the county or fiscal court. The question arose many years ago in the case of Jefferson County v. Waters,
"Section 126 makes it the duty of the county attorney to oppose the allowance of all claims not legally presented or unjust, and we are of the opinion that from this provision the authority of the county attorney is implied to prosecute an appeal from an order allowing a claim against the county. If we are in error in this conclusion, then it is perfectly plain that he has such authority when the county court orders him to do so."
Later on the question again arose in Breckinridge County v. Rhodes,
Judgment reversed and cause remanded for proceedings consistent with this opinion.