165 Ky. 835 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
The appellants, taxpayers of Marion County, brought this equitable action against the members of the fiscal court of that county seeking to enjoin the court from pro-' ceeding to expend on the Lebanon and Bradfordsville turnpike road $7,000, which the court had appropriated tó be expended on it, together with such sum as might be allowed out of the state aid fund. ■ •
The petition further alleges that the Lebanon and Bradfordsville road is not ah inter-county-seat road, but is wholly within the county of Marion and is not the most direct and practical route between Lebanon, the county seat of Marion County, and the county seat of any adjoining county.
The answer, as amended, put in issue the material allegations of the petition except as to the levying of the tax' the amount of the fund, and the appropriation thereof.
, • In the circuit court evidence was heard on the issue as to. whether the Lebanon and Bradfordsville. road constituted tfie most direct and practical route between Lebanon, the county seat of Marion County, and Liberty, the
The evidence heard on this issue was the only evidence introduced, the record failing to show whether either, party introduced in evidence the orders of the- Fiscal Court referred to in the pleadings; nor have we been-favored with a copy of any one of them in the transcript.
Two questions are made, (1) that the Lebanon and Bradfordsville road being wholly within Marion County,, is not an inter-county-seat road within the meaning of the Act of 1914, establishing a system of state highways, and (2) that the appropriation of $7,000 to be expended on the Lebanon and Bradfordsville road is violative of Sec. 157 of the Constitution of this State because the appropriation could not be paid out of the revenues of that year for the reason that the Fiscal Court had previously appropriated to the limit of the revenues of that year.
See. 4356w, Carroll’s 1915 Kentucky Statutes, is a part of the Act of 1914, and is as follows:
“There is hereby created a system of public State highways, which shall consist of roads connecting • the county seat of each county of the Commonwealth with the county seats of the adjoining counties by the most direct and practical route, and the county seat of the border counties of the Commonwealth with the' State line on the most direct and practical route leading from said county seats to the county seats of the adjoining counties in the adjacent States. These roads shall be the first to receive State aid, and after such roads are constructed in any county of the Commonwealth, then all other roads to which State, aid is furnished thereafter' may be deemed public State highways; and all such roads eligible to receive State aid under the provisions'
There was also passed at the 1914 session of the General Assembly an Act providing for the construction and maintenance of public roads in this State, being Sec. 4356x, Carroll’s 1915 Kentucky Statutes. Sub-section 8 of the last named Act provides:
“When more roads are petitioned for in any county than can be constructed in any one year, the fiscal court of the county, with the consent of the state commissioner of public roads, shall have power and authority to select from the roads petitioned for the ones first to be constructed, having due regard for the most important road and the distribution of the benefits of this act to all parts of the county. ”
Construing these two sections together it is apparent that the Fiscal Court had the right to designate the road in its county which should first receive the benefit of the State -aid fund by and with the consent and approval of the State Highway Commissioner, and the question is whether the Lebanon and Bradfordsville road was such an inter-county-seat road as was contemplated by the Act of 1914.
The Lebanon and Bradfordsville road, and the Bradfordsville and Houstonville road were originally two separate roads owned and operated by two separate corporations, but several years ago the county of Marion acquired the Lebanon and Bradfordsville road and about the same time also acquired that part of the’ Bradfordsville and Houstonville road located in Marion County. So that at the time of the appropriation herein complained of Marion County owned the whole road from Lebanon to the Casey County line going in the direction of Liberty.
The contention that thé Fiscal Court had no authority to select only that part of the road between Lebanon and Bradfordsville for reconstruction and improvement and ignore that part between Bradfordsville and the county, line is not tenable; Sub-section 7 of the Act last quoted expressly authorized the fiscal court to,provide for improvements of a road or a section thereof within the county. It was evidently contemplated by the Act that many of the counties of the State, even with the aid of’ state funds, might not be able in any one year to recon-■ struct and improve the whole of an inter-county-seat' road which might be within its borders.
The further contention of appellants is that as the; fiscal court had already previously appropriated the whole of the road fund for the year of 1915 that it exceeded its authority under Section 157 of the constitution when it undertook to appropriate the $7,000 to the Lebanon and Bradfordsville road; while it is the-general argument of the appellees that the $7,000 which it originally appropriated for the three turnpikes, and which action the State Commissioner of Public Highways 'declined to approve, is the same $7,000 which it subsequently appropriated to the Lebanon and Bradfordsville road alone, thereby eliminating the, other two roads for L the present from the benefit of the State aid fund, which action became necessary on account of the attitude of the State Highway Commissioner.
In the absence of the orders of the’fiscal court'manifestly this court cannot determine what they mean, and there being nothing in the record to show to the contrary the presumption is that the fiscal court did not exceed its authority and that the appropriation was valid. (Southern Bithulitic Co. v. De Treville, 156 Ky., 513.)
Construing plaintiff’s petition most strongly against them it would seem that the $7,000 originally appropriated for the three roads is the same $7,000 which was subsequently appropriated for the one road; for they, after, alleging thát the appropriation of $7,000.00 was made for three roads on the 15th of April, 1915, further allege that on the 10th day of May, 1915, the fiscal court then undertook “to apply all the $7,000 appropriated from county funds and also an equal amount to'be received from the State road fund to the Lebanon and Bradfordsville road.”
It seems clear that if the last-named appropriation of $7,000.00 for the one road, was the same $7,000.00 origin-, ally intended to be appropriated for the three roads but which failed because of the position taken by the State Highway Commissioner, that the $20,000.00 road fund for 1915 had not been exhausted.
Judgment affirmed.
