Marion County v. Rives & McChord
118 S.W. 309
Ky. Ct. App.
1909
Check Treatment

Opinion of the Court by

Vm. Rogers Clay, Commissioner

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 *479county entered orders appropriating certain money belonging to tbe county to tbe county attorney and the several magistrates. R. D. Thornbury, as a citizen and taxpayer of the county instituted an action to have the orders declared void and to recover the money so paid. This action was brought for the use of himself and the other taxpayers of the county. In his effort he was successful in the circuit court, and also in this court'. In the prosecution of the suit, Thornbury employed appellees, who are regular practicing attorneys of Lebanon, Ky. Upon the payment of the money recovered into the county treasury, appellees ashed an allowance 'by the fiscal court for their services. The fiscal court declined to mahe them an allowance. This action was instituted to recover a fee of $500. After setting forth the above facts, the petition concludes as follows: “Plaintiffs say that their services in prosecuting the claim committed to them, and recovering the money so recovered and paid into the treasury of Marion county for the joint benefit of all the taxpayers of said county, were reasonably worth the sum of $500, for which sum they had and 'have a lien on the claim, and on the amount recovered, and that, the employment and recovery having been at the instance of one of said taxpayers, and for the joint benefit of all, the taxpayers of the county cannot, in equity, be permitted to accept and retain the whole sum recovered, free from all expense of recovery, and without contributing ratably to the payment of the plaintiffs’ fee as attorneys.” The defendant, Marion county, demurred to the petition, and the demurrer was overruled. It then filed an answer in two paragraphs, which it will be unnecessary to set forth. The question of what was a *480reasonable fee was submitted to the jury, and a verdict in plaintiff’s favor for $250 was returned. Judgment was entered thereon, and Marion county appeals.

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.”

*481We are unable to see liow the doctrine of contribution can apply in this ease. There is no direct recovery by any of the taxpayers. None of the proceeds are -distributed to them. The money recovered went into the county treasury. The recovery only incidentally benefits all the taxpayers. It may, perhaps, serve to decrease the amount of taxes thereafter to be paid by them, but they have no control over the sum recovered. None of it belongs to them in their individual capacity. Not even the county could' distribute it among them except for public purposes. Any one of them might institute an action to prevent the sum from being illegally expended, but that is as far as the power of the individual taxpayer goes. It is manifest that Section 4-89 of the Kentucky Statutes, has no application to a case of this kind. It applies only to money or property held in joint tenancy, coparcenary, or as tenants in common. It further contemplates that there shall be distributees among whom the property or fund shall be divided. Certainly the taxpayers of the county are not joint tenants, coparceners, or tenants in common of funds paid into the county treasury 'and belonging to the county. The statute further contemplates that the fund or property shall be distributed among those who are to contribute to the fees and costs. As said above, public funds can never be distributed among the taxpayers except for lawful, public purposes.

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*482ties. ’ ’ The distinction is well pointed ont by Dillon, in Ms work on Municipal Corporations (volume 1, Sec. 23), as follows: “The distinction between municipal corporations proper, such as chartered towns and cities, or towns and cities voluntarily organized under general incorporating acts, such as exist in a number of the States, and involuntary quasi corporations, such as counties, has been very clearly drawn by the Supreme Court of Ohio: ‘Municipal corporations proper are called into existence either at the direct solicitation or by the free consent of the persons composing them, for the promotion of their own local and private advantage and convenience.’ On the other hand: ‘Counties are at most but local organizations, wMch, for the purposes of civil administration, are invested with a few functions characteristic of a corporate existence. They are local subdivsions of the State, created by the sovereign power of the State, of its own sovereign will, without the particular solicitation, consent,- or concurrent action of the people who inhabit them. The former (municipal) organization is asked for, or at least assented to, by the people it embraces; the latter organization (counties) is superimposed by a sovereign and paramount authority.’ ‘A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and civil administration, in matters of finance, of education, of provisions for the poor, of military organization, of the means of travel and transport, and especially for the general iadministrati-on of justice. With scarcely an exception, all the *483powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are, in fact, but a branch of the general administration of that policy.’ ”

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 *484to sue is much larger than their right to be sued, and this follows from the fact that, having control of the bridges, highways, and public buildings of the county, it is necessary that they should he invested with all needful power to protect and preserve them, and so it has been held that a county may main ■ tain an action for injury to its courthouse or public roads. Christian County v. Rankin & Tharp, 2 Duv. 503, 87 Am. Dec. 505; Lawrence County v. Chattaroi R. Co., 81 Ky. 225; 5 R. 36; L. & N. R. R. Co. v. Whitley County, 95 Ky. 215, 24 S. W. 604, 44 Am. St. Rep. 220, 15 R. 734. 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. There is a marked distinction between counties and municipal corpora-, tions such as cities and towns, in respect to the power to sue and be sued. The latter, by the act creating them, are expressly authorized to sue and he sued and hence may he parties plaintiff or defendant in any case in the absence of a statute or judicial determination to the contrary, and it has been frequently announced that an action against them will lie in behalf of a taxpayer. City of Covington v. Powell, 2 Met. 226; City of Louisville v. Anderson, 79 Ky. 334, 2 R. 344, 42 Am. Rep. 220. When taxes have been wrongfully collected by county officials, and are in the hands of the collecting or distributing officers, a direct action may he brought by the taxpayers against the person holding the tax. Whaley v. Commonwealth, 110 Ky. 154, 61 S. W. 35, 12 R. 1292; Blair v. Carlisle, etc., Turnpike Co., 4 Bush, 157; Commonwealth v. Stone, 114 Ky. 511, 71 S. W. 428, 24 R. 1297. But after the taxes collected have been paid out, the taxpayer is without remedy as against the county. We *485conclude therefore, that the action of the lower court in sustaining the demurrer in. behalf of Kenton county was proper, and the judgment is affirmed.

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 *486Mm is simply a contribution made towards good government, and lie must find bis recompense in the conviction that be has performed bis duty as a citizen. An attorney who undertakes such employment must look alone to the taxpayer who employed him, until the Legislature provides to the contrary.

For the reasons given the judgment is reversed, and cause remanded, with directions to dismiss the petition.