Daviess County v. Goodwin

Opinion of ti-ie court by JUDGE HOBSON Affirming. Appellant, H. M. Haskins, was elected c-ountj judge of Daviess county at the regular election in November, 1901, and at the January term, 1902, of the fiscal court, his salary was fixed at $1,000 per year. At its April term, 1903, the fiscal court made an order appointing him also county supervisor of the public roads and bridges of Daviess county, and fixed bis salary as supervisor at the sum of $900 per year. Appellee, William Goodwin, a citizen and taxpayer of Daviess county, thereupon filed this suit to- enjoin the treasurer from paying Haskins the $900 per year as supervisor, and, the circuit court having granted the relief prayed, the county judge appeals. The ground of the judgment of the circuit court is that under the statute the county judge can not fill the office of [897] road supervisor, and that the fiscal court is without authority to appoint the county judge to the office. It is earnestly insisted that the circuit court erred. By section 4306, Kentucky Statutes, 1899, the public roads shall be maintained either by taxation or by hands allotted to work thereon (or both), in the discretion of the fiscal court. By section 4312, in counties where the roads are worked by taxation, it is the duty of the overseer to report promptly to the supervisor all obstructions to travel, and to report to the county judge all failures of the contractors to comply with their contracts, and all violations or neglect of duty of the supervisor with regard to the road. By section 4313 the supervisor is to be appointed by the fiscal court, and in case of a vacancy in the office it is the duty of the county judge to fill it till the next regular term of the fiscal court. By section 4314 the supervisor must execute bond at the next regular term of the county court after his appointment, with sureties to be approved by it. By section 4315 it is. the duty of the supervisor to report in writing to the county judge all failures of contractors to comply with their contracts. With the consent of the county judge, he may designate certain roads not to be let out, but kept in repair by special contact made privately, or by hands and teams hired by him or by delinquent taxpayers, or by persons sentenced to labor; “provided, however, that the fiscal court of any county wherein roads are worked by taxation may, instead of appointing a supervisor, authorize the county judge to so let out the working of the roads and the building or repairing of bridges and to take and approve the bonds hereinbefore required. In such cases the other power herein conferred and the duties imposed upon the supervisor shall be exercised and discharged by the road overseers in their [898] respective precincts.” By section 4317, for any violation of duty by the supervisor a warrant in the name of the Commonwealth may be issued by and returned before the county judge, and it is the duty of the judge to issue the warrant upon his own knowledge or upon information of another upon oath. By section 4318 the supervisor may, on the order of the county judge entered of record, hire wagons, scrapers, and teams, and procure forage for them, and either hire or purchase such tools and implements as may be necessary. By section 4335 penalties are provided for injury to the roads, tools, or implements, and it is the duty of the supervisor to report promptly to the county judge or some justice of the peace all violations of the act. By section 4338 no money shall be paid out, “except upon the order of the supervisor (specifying what for) with the indorsement thereon of the county judge of- his approval or when no supervisor, .upon order of the overseer or commissioner having charge so endorsed.” By section 4339 the supervisor, upon the order of the county judge entered on the order book of his court, may let out by written contract the grading or cutting down of hills upon the public road, and give an order for the money, which order is to be indorsed “Approved” by the judge. These provisions do not contemplate that the supervisor and the county judge may be the same person. On the contrary, they contemplate that the county judge is to hold the supervisor to a strict responsibility, and that, to protect the interests of the county, there must be the concurrent judgment of both the county judge and the supervisor in important matters. It is true that under section 4315 the fiscal court, instead of. appointing a supervisor, may authorize the county judge to let out the working of the roads; but in that event he acts as county judge, and not as supervisor, and is entitled to [899] .no additional compensation for his services, the other duties imposed upon the supervisor being in that event discharged by the road overseers in their respective precincts. If the county judge may act as supervisor, the purpose of the statute in providing for both a supervisor and a county judge to protect the interests of the county, would be entirely defeated. The fiscal court is a body of limited authority. It is without power under the statute to appoint the county judge as supervisor. Its action was therefore nugatory. The authorities relied on for appellant as to the acceptance of an incompatible office have no application, as the order of the fiscal court appointing the county judge as supervisor was void, and vested in him no right to the office. The appellee, Goodwin, is a citizen and taxpayer of the county suing for himself and all other taxpayers, and may as such maintain the action to prevent a misappropriation/ of the county’s funds, for, if the money of the county is wrongfully expended, taxes must be,levied to supply its place in the treasury, and thus an additional burden will be cast on the taxpayer. Judgment affirmed. Petition for rehearing for appellant overruled.