Hopkins County v. St. Bernard Coal Co.

Opinion of the court by JUDGE HOBSON — Affirming. The appellee John Robinson and 95 others, suing for the use and benefit of the St. Bernard Mining Company, and that company for itself, filed this suit against the county of Hopkins and the members of the Hopkins fiscal court, asserting claims, amounting in the aggregate to $2,408 against the county of Hopkins, growing out of their services in guarding the property of the St. Bernard Coal Company7 when summoned by the sheriff pursuant to an crder of the county judge of Hopkins county, under section 1241a, Kentucky Statutes. The court .gave judgment in favor of the plaintiffs, and the defendants have appealed. The validity of this statute was upheld by this court in Cahill v. Perrine 20 R., 1454, 49 S. W., 344, and upon a re-examination of the question we see no reason to recede from the conclusion then reached. The material parts of the statute are set out in that opinion, and all the grounds of,objection to it which are now made, as shown by the [157] opinion and dissenting opinion, were considered by the court. The statute authorizes the judge to “order the sheriff or any constable of the county to summon a posse of not. less than two nor more than ten discreet, able-bodied men between twenty-one and fifty years of age, for each piece of property threatened with injury or destruction,, to be placed at or in such property armed with guns and ammunition, until the judge is satisfied the cause no longer exists, not to exceed thirty days at one time.” The discretion of determining whether the posse shall consist of only two men or more- than two (but not moire than ten) is vested in the sheriff. The county judge is not required to fix the number to be summoned by the. sheriff, for he, on the ground, can determine this as there may be need. The county judge, therefore, in his order in the case before us, properly followed the language of the statute, and left the number of the posse to be determined by the sheriff within the limits fixed by the statute. If no discretion was left to the sheriff as to the size of his posse in time of exigency, the purpose of the act might he entirely defeated, or greatly unnecessary cost might be entailed. It is insisted that the liability thus imposed on the county is in violation of section 157 of the Constitution, which, so far as material is as follows: “No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted in any manner or for any purpose to an amount exceeding- in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, and any indebtedness contracted in violation of this section shall be void. Nor shall sudh contract be enforceable by the person with whom made; nor shall sucli municipality ever be authorized to. assume [158] the same.” It is a part of the history of this State that in times of popular excitement many of the counties, and towns of the State had voted subscriptions to railroads and other public improvements, which had well-nigh wrecked them; and this section of the Constitution, which was borrowed from other States was adopted as a remedy for the evil. Beard v. Hopkinsville, 95 Ky., 237 (15 R., 756) 24 S. W., 872, 23 L. R. A., 402; 44 Am. St. Rep., 222. In Belknap v. City of Louisville, 99 Ky., 486 (18 R., 313) 36 S. W., 1118; 34 L. R. A., 256, 59 Am. St. Rep., 478, construing this provision, the court said that the object of the provision was to protect the people from their own improvidence and that oif their officials. That improvident contracts were in the mind of the framers of the Constitution is shown by the concluding wrords, “nor shall such contract be enforceable by the person with whom made.” The prohibition is against becoming indebted or voluntarily incurring a legal liability. The words, “no county . . . shall be authorized or permitted to become indebted,” can not reasonably refer to the necessary expenses of the governmental functions of the county, which are compulsory obligations cast on it by law, but only to that class of which is optional with the county to incur. Any other construction, as has been well said, would destroy the fundamental safeguards and bulwarks of organized society. Barnard & Co. v. Knox Co. (C. C.), 37 Fed., 563, 2 L. R. A., 426; Rauch v. Chapman (Wash.), 48 Pac., 253, 36 L. R. A., 408, 58 Am. St. Rep., 52; Grant County v. Lake County, 17 Or., 453, 21 Pac., 447; Sackett v. New Albany, 45 Am. Rep., 461. The duty of preserving i.he public peace and protecting life and property can not be avoided because the income provided for the year by the fiscal court will be insufficient to pay the guards provided by the stat [159] ute. It is the duty of the fiscal eo'int to provide a sufficient fund for this purpose when the necessity arises, if it has not been provided before. It was not the purpose of the Constitution to disable the municipalities of the State from maintaining the public peace or protecting the good name of the State. On the contrary,, the Constitution was enacted by its makers, “grateful to Almighty God for the civil, political and religious liberties we enjoy,” and that “the great and essential principles of liberty and free government may be recognized and' established.” See preamble. No objection appears to have been made in the circuit court on the ground that mo affidavit was filed before the county judge — at - least, this matter is not noticed in the opinion of the trial court; and as the order of the county court recites the facts, it should be presumed that the recitals are true, in the absence of an express denial and proof to the contrary. The original claimants uniting in the suit with the assignee, the St. Bernard Mining Company, and no objection being made to the joinder of parties, no question is presented as to whether that company could have sued in its own name alone. The objection that its purchase of the claims was ultra vires, and therefore vested no title in it to them, can not be maintained. The original claimants are before the court. The money was going to them, if not to the mining company, and the county has not been prejudiced by the form of the judgment. Judgment affirmed. Chief Justice Guffy and Judge White dissent.