133 Ky. 477 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversed.
The sole question involved on this appeal is whether or not an attorney of a taxpayer, who institutes a suit -on behalf of all the taxpayers of the county- and recovers money illegally appropriated, can assert a lien .thereon for his services and recover a judgment against the county. The question arises in the following manner: The fiscal court of Marion
The position of appellees is: That Thornbury, as a party in interest, had the right to employ attorneys to prosecute the action referred to for the benefit of himself and the other taxpayers of the county; that their efforts were successful; that their services were rendered, not for Thornbury in the establishment of a personal' claim, but to recover a sum in which every taxpayer in the county had a proportionate interest. It is therefore insisted that the other taxpayers should not be permitted to take to themselves and enjoy the fruits of appellees’ labor without sharing’ in the reasonable expense incident to the recovery, and that under the doctrine of contribution the county is liable. It is furthermore insisted that the recovery in this case is authorized by Section 489 of the Kentucky Statutes (Russell’s St. Sec. 1806), which is as follows: “In actions for the settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, if it shall be made to appear that one or more of the legatees, devisees, distributees or parties in interest have prosecuted for the benefit of others interested with themselves, and have been at trouble and expense in conducting the same, it shall be the duty of the court to allow such person or persons reasonable compensation for such trouble, and for necessary expenses, in addition to the fees and costs; said allowance- to be paid out of the funds recovered before distribution, the persons interested having notice of the application for such allowance.”
While the appellees are asserting a lien on the sum recovered, they are seeking to do so in an action against the county. The question, then, arises: Can such an action be maintained? With respect to the right of a party to sue them, there is a wide difference between “municipal corporations” and “coun
In discussing the same question, this court, in the case of Commonwealth v. Baske, 124 Ky. 468, 99 S. W. 316, used the following language: “It is a well-established doctrine in this State, and in harmony with the rule generally prevailing, that counties are not liable to suit, unless authority for it can be found in. the statute, or it follows by necessary implication from some express power given. The reason upon which this rule rests is that counties are subordinate political subdivisions of the State. They are created for public purposes, and are a part of the necesr sary machinery of government, and can no more be sued by the citizen than can the State. Downingv.Mason County, 87 Ky. 208; 8 S. W. 264, 10 R. 105, 12 Am. St. Rep. 473; Wheatly v. Mercer County, 9 Bush, 704; Hite v. Whitley County, 91 Ky. 168, 15 S. W. 57, 12 R. 764, 11 L. R. A. 122; Simons v. Gregory, 120 Ky. 116, 85 S. W. 752, 27 R. 509; Sinkhorn v. Lexington T. P. Co., 112 Ky. 205, 65 S. W. 356, 23 R. 1479. It is true that in these cases damages were sought to be recovered for injury to person or property, but the principle announced and the ground upon which the opinions rest, is that, in the absence of statutory authority or necessary implication flowing from the exercise of a power granted, an action against a county will not lie. We have not been able to find any authority in the statute for an action such as this. In fact there are very few actions that can be maintained against counties. The right of these political subdivisions of the State
In the recent case of First National Bank v. Christian County, 106 S. W. 831, this court, in explanation of the statement, “And where a county has-¡authority to make a contract, it would follow as an incident that it might sue or be sued concerning it,” contained in the opinion in Commonwealth v. Boske, supra, used the following language: “Counsel for appellant earnestly contends that the statement in the above opinion, to the effect that, where a county has authority to make a contract, it would follow as an incident that it might sue or be sued concerning it, authorizes this action, claiming that where taxes have been illegally collected there arises upon the part of the county an implied contract to pay them back. This, however, is not the meaning of the language used. That language refers only to an express contract. It was not intended to convey the idea, nor would it be proper to do so, that the right to sue could be implied from an implied contract.”
It is manifest from the foregoing that a county can not be sued except upon an express contract. Tliornbury had no power to make a contract with ap - pellees that would be binding upon Marion county. As to Marion county, he was a mere volunteer. He sustained the same relation to the other taxpayers of the county. Where a party undertakes, on behalf of himself and other taxpayers of the county, to prevent the illegal expenditure of money, or to recover money illegally expended, he can not, without direct authority contained in the statutes, expect his attorneys to be paid by the county. The sum expended by
For the reasons given the judgment is reversed, and cause remanded, with directions to dismiss the petition.