191 Ky. 45 | Ky. Ct. App. | 1921
Opinion op the Court by
Overruling motion to grant injunction.
The purpose of this suit, filed in the Lawrence circuit court by Lawrence county on relation of the county attorney against the fiscal court of the county and others, was to enjoin the fiscal court from carrying into execution a resolution which it is claimed to have passed at a special session held on December 29, 1920, wherein it proposed to donate to the Commonwealth of Kentucky the sum of $125,000 to be used in the construction of a public highway running through the county, which forms a part of a proposed state highway traversing the eastern part of the state to be known as the Mayo Trail, and which in turn is a part of Project No. 6 of the system of state highways provided by an act passed by the General Assembly at its 1920 session, which is chapter J7, Session Acts 1920, page 76. Upon the hearing of the motion for the injunction the pleadings, consisting of the petition as amended, the answer, and a number of affidavits filed by the defendants were considered and the court
Many collateral points are discussed in briefs, but it is quite apparent that the grounds relied on to defeat the proposed action of the fiscal court, and in support of the relief sought, may be included in the classifications of (1) that the resolution offering to make the donation was not passed by the requisite number of votes and is therefore invalid; (2) that the legislature is-without authority to confer the power on the fiscal court of a county to donate the funds of the latter to the proposed purpose; (3) that in fact the 1920 act does not confer such authority, and (4) that if mistaken in the first three grounds, the fiscal court of the county can not donate the particular fund involved, which is one-half of the proceeds of a road and bridge bond issue voted by the electors of the county at an election held on December 20, 1919, before the 1920 act was passed, and which bonded indebtedness was stated in the petition calling for the election to be for the purpose of constructing four designated roads in the county, and that to donate any part of the funds arising from a sale of the bonds would pervert the purpose for which they were voted. These contentions will be disposed of in the order named.
1. The record discloses that there are seven justices of the peace in Lawrence county, who with the county judge compose the fiscal court. (Section 144 constitution). It is stated in brief that there are eight justices in the county, but from the view we take of the case (as hereinafter shown) it makes no difference whether there were seven or eight in the county, although under the condition of the record we are not authorized to consider any other number than seven. The records of the fiscal court affirmatively show that on the day the questioned resolution was passed there were seven justices present and the county judge; that a roll call of the justices showed four votes cast for the resolution and three, against it. The record is silent as to the action of the county judge. Immediately following the recorded vote, and, as it seems, a part of the same proceedings, an order was made by the fiscal court directing a sale of $125,-000 of the bonds and appointing the county judge trustee of the funds arising therefrom and authorizing him to
The argument is made on behalf of plaintiff that the county judge is a member of the fiscal court, which is true, (Bath County, etc. v. Dougherty, Commissioner, 113 Ky. 518, and Stevens v. Wilson, etc., 115 Ky. 27) and that he with the seven justices of the peace, who were present when the resolution was considered, made eight members of the court present and that it was necessary in order to carry the resolution for it to receive five votes, and having received only four votes, it failed to pass- and conferred no authority upon the fiscal court to do any of the things proposed therein. It is not disputed but that the seven voting members constituted a quorum of the entire membership of the court, even if we consider that there are eight justices of the peace in the county, and that according to parliamentary rules governing the procedure of representative bodies generally the four votes east for the resolution were a majority of that quorum and would under such parliamentary procedure be sufficient to adopt the resolution. And this accords with section 144 of the constitution, which provides that ‘ ‘ A majority of the members of said (fiscal)- court shall constitute a court -for the transaction of busness.” But, it is insisted that section 1837 of the statutes requires that before any proposition shall be adopted by the fiscal court it shall receive the votes of at least a majority of the members present, although a majority of the quorum voting upon the proposition may be cast in its favor. That section says: “Not less than a majority of the members of the fiscal court shall constitute a quorum -for the transaction of business, and no proposition shall be adopted unless by the concurrence of at least a majority of the members of the court present.” The question, therefore, is, under the condition of the record, was the resolution here involved adopted by a majority of the members of the court present as contemplated by that section? Manifestly there is involved in the answer to this question the further one as to whether the non-voting member (the county judge) who was present, may be treated as voting and, if so, how? °
In the case of Ray v. Armstrong, 140 Ky. 800, the question was presented whether an order of the then
“But in this- instance all the members were present— eight. Pour voted to raise the assessment of Jefferson county, and three voted against the proposition. Pour is not a majority of eight. The remaining member, though present and sitting in the board, did not vote. What is the legal effect of this conduct? If it be held that his not voting had the same effect as if he had been absent, it would belie the facts. Por he was not absent. His silence should, we think, be construed as concurring with the majority. His silence is acquiescence rather than opposition. His refusal to vote is, in effect, a declaration that he concurs with the majority. Otherwise he should vote against the majority, which would have defeated the proposition. (Rushville Gas Co. v. City of Rushville, 6 L. R. A. 315; Wilcock, Corp. section 546; State v. Green, 37 Ohio St. 227; Luntz v. People, 113 Ill. 137; Cass County v. Johnson, 95 U. S. 369; St. Joseph Twp. v. Rogers, 83 U. S. 16; State v. Renik, 37 Mo. 270; Everett v. Smith, 22 Minn. 53; Oldknow v. Wainwright. 2 Burr. 1017; First Parish, etc. v. Stearns, 21 Pick. 148.)”
The doctrine of the Ray case was held by this court, in the csae of Morgan v. Champion, 150 Ky. 336, to apply to the proceedings of fiscal courts. The question there involved was the ratification by the fiscal court of the appointment of a county road engineer by the county judge, which ratification is required by section 4325 of the statutes, and the fiscal court of Anderson county (whose action was under consideration) consisted of six justices of the peace and the county judge. The ratification of the appointment by the county judge re
Under these authorities we gather the rule to be that when the requisite number of the body to form a quorum is present and has an opportunity to and does vote upon a proposition, those members who are present and do not vote will be considered as acquiescing with the majority and their silence construed as they voting with the majority. But we must confess that were it not for the cases, supra, we would have some hesitation, in view of section 1837 of the statute, in arriving at that conclusion. However, we think that it is better for the rule to remain as settled by the above cases, which casts responsibility upon the non-voting members under the circumstances, than to disturb what may have become a settled rule of procedure in reliance on them.
2. A county is one of the public territorial divisions of the state. It is organized and given its existence foi local public purposes, which are connected more or less with the administration of the state government and, generally speaking, the legislature may confer upon it such powers -as are not forbidden by the constitution, and such as do not violate the fundamental maxims of right and justice with respect to which all governments, as well as sub-divisions thereof, are supposed to be organized. An illustration of an effort to do the latter will
The road, in the constructora of which the donation by the county of Lawrence is proposed to be made, lies entirely within the county, and it is an internal improvement, which, under the law as it existed prior to the 1920 act, was required to be maintained exclusively by the county, and it is such a local public purpose as that the county may lawfully donate its funds to aid in its con
Much is said in brief of counsel for plaintiff about the fiscal court of a county not having authority to delegate its powers to others (the State Highway Commission in this case) and in support of this contention the cases of J. I. Case Threshing Co. v. Commonwealth, 177 Ky. 454 and O’Kelly v. Lockwood, 154 Ky. 554, and cases referred to therein, are relied on. But the doctrine of those cases does not apply to the facts we have here. The delegation of the authority, which is denied in those cases, is a discretionary authority, lodged with the fiscal court in the management of the public affairs of the county, 'and pspecally in the expenditures of its finances, but none of those cases denies the right or the authority of the fiscal court to employ or designate another to construct a public improvement, or to perform the mechanical work of executing any other public duty. If,'in this case, the fiscal court had undertaken to delegate to some other functionary or agent the authority or power to determine whether the donation of the funds of Lawrence county should be made for the purposes proposed, then the doctrine of those cases would apply, but we have no such case here, and the cases relied on are not pertinent. On the contrary, it would seem that, independently of the 1920 statute the fiscal court, under the doctrine of the cases of Orphans’ Society of Lexington v. Fayette County, 6 Bush 413, and Board Trustees House of Reform v. City of Lexington, 112 Ky. 171, the fiscal court of Lawrence county, under the facts of this case, was authorized to make the donation involved to the state highway commission for the purpose of constructing roads within the county, since that duty was already expressly imposed upon the county by statute and the procuring of the state through its
3. If we are correct in what has been stated in the last sentence above the contention made in ground (3), if true, would not affect the merits of the case; but it i-s our conclusion that the language of the 1920 act is broad enough to grant the authority (contested in this case) to the fiscal court of Lawrence county. In’saying this we do not overlook the ruling of this court in the case of Bussell County v. Hill, 164 Ky. 360, and others to the effect that fiscal courts may not make appropriations, nor levy-taxes, nor perform any act with reference to the collection and disposition .of public funds without statutory authority for the purpose, and that statutes purporting to confer such authority must not be extended by construction “beyond the natural and fair meaning of the words used,” and that the granting of such authority must be strictly construed.
In the latter part of section 5 of the 1920 act, after providing the fund, which the state might employ for the construction of the system -of roads created, and, declaring that after construction they should be maintained entirely by the state, it is said: “But nothing herein shall prevent any county, municipality, association, firm or individual from making a donation to the state in aid of the construction or maintenance of any of the said roads of the state, 'and the state shall have the right to accept any donation on the terms and conditions prescribed by the state highway commission.” Our conclusion is that the “fair meaning of the words used” is- sufficient to confer the authority proposed to be exercised. To hold otherwise would convict the legislature of the employment of meaningless and useless words; for, how could a county donate to the state in aid of the construction or maintenance of the roads provided for without the power and authority to do so; and how could the state highway commission negotiate with a county in prescribing the terms upon which the donation would -be accepted without any power in the county to make the donation? The fair inference is that it was the intention of the legislature to confer such authority upon the county and we think, under even the strict construction rule, the language employed is sufficient for that purpose.
Considerable argument is indulged in to the effect that when the election authorizing the issuance of the bonds was held there was in existence what is known as the State Aid plan for the construction of certain roads in the various counties, and that the bonds were voted
Upon the whole case we conclude that the order attacked is valid and the injunction was properly refused. Chief Justice Hurt and Judges Quin and Clay considered this motion with the writer and concur in this opinion, which is ordered to be published in the official Reports and in the Advance Sheets.