McDonald's Adm'x v. Franklin County

Opinion op the Court by Judge O’Rear Affirming. Franklin county had a bonded indebtedness of $62,000, which it desired to refund. The fiscal court of the county entered an order on its records directing the refunding of the debt, and appointing a committee composed of Magistrate Thompson, County Attorney .Polsgrove, and County Clerk Smith to advertise for bids for the funding bonds. The committee acted, and the bonds were sold to a Cincinnati firm of brokers. Pat McDonald, Sr., participated to some extent in the transaction. His representatives claim he acted as a financial agent for the county by its employment. -The county claims he was acting for the brokers. After Mr. McDonald’s death, which occurred not a great while after the debt was refunded, his son presented a claim to some of the magistrates, if not to the fiscal court, for his services. There is no record of the fiscal court either that McDonald was employed in the matter at all, or that any claim for his services was presented to the court. A paper was drawn up and signed, which was taken as authority for the issuance of a warrant upon the county treasury for $450, in payment of the claim. This paper was not presented in or acted upon by the fiscal court in session. The paper is in the following words: “That the undersigned request and [210] authorize N. B. Smith, C. F. C. 0., to issue a Co. "warrant payable to Pat McDonald, Jr., for $450.00 in full payment for Pat McDonald, Sr. (deceased), attorney to sell Co. bonds $65,000 in amount in the year payable out of the levy 1901. S. M. Tinsley, J. P. F. C. George B. Thompson, J. P. F. C. W.' C. Guthrie, J. P. F. C. Joseph P. Pfeiffer, J. P. J. D. Moore: Franklin county, Monday, October 28th, 1901. ” This paper was presented to the county clerk, who entered it upon the records of the county court proceeding's, and issued a warrant for $450 in favor of Pat McDonald, Jr. This warrant was paid by the sheriff out of the county levy funds, and was received by the representatives of !Pat McDonald, Sr. . County Attorney Polsgrove prosecuted an appeal to the circuit court from the order of the county court allowing the claim; but before the appeal was disposed of there had been a change of officials, and the fiscal court directed County Attorney Buford to bring an action against Pat McDonald, Sr.’s, representative to recover the $450. This suit was brought under that authority. The result was a judgment.in favor of the county adjudging that it recover from the McDonalds the money paid out on the wararnt. They prosecute this- appeal from that judgment. Their first contention is that.the county could not prosecute both actions at the same time — the appeal referred to, and this suit at law for money had and received. In the view we have taken of the matter the appeal need not to be further considered, nor considered at all in this case; for we have reached the conclusion that the warrant was void, as was the order upon which it was issued. That being so, it was not necessary for the county to prosecute an appeal from the order before! it could pursue any other remedy to [211] which it was entitled. Whether Mir. McDonald acted for the county in the transaction of refunding the bonds we do not deem it necessary to inquire, though the proof on the point was conflicting; but the court is of opinion that a county cannot become indebted for personal services rendered it upon implied assumpsit. The county is a political subdivision of the state, though for many purposes it is deemed a municipality. Its power of contracting indebtedness is limited to the’matters expressly conferred by the Legislature, or which are conferred by necessary implication as an incident of powers expressly conferred. Not only is it limited as to the things for which, but it is limited as to the manner in which,- it may become bound by contract. It may be' conceded that being expressly authorized to refund its bonded debt it was impliedly empowered to employ all necessary agents, and incur all necessary expenses in doing so. The fiscal affairs of the county are not, as seems to be supposed, confided to a certain number of magistrates, but are given solely to the fiscal court of the county (or to county commissioners, if the people of the county so elect). This tribunal acts as a body. It can only act at stated or called public meetings, at which a majority of the magistrates constituting it must be present, and a majority of those present concurring. Section 1837, Ky. Stats., 1903. It must keep a record of its acts. It must show by whom it was holden, and be signed by its presiding officer, or its acts are null. Section 1843, Ky. Stats., 1903. As stated, there is no record of the alleged employment of Mr. McDonald in the bond matter. Consequently there was no action by the fiscal court as such in making such employment. The paper signed by County Judge Moore and by [212] certain of the county magistrates', even though it were signed by all the magistrates of the county, and therefore by all constituting the fiscal court, is not an act of the court. The paper is of no legal effect. Such bodies, when acting for the municipality, must act as a unit — as a body. There is a wise reason for the provision. Public meetings at which the county attorney, the legal representative of the county, must be present, or have an opportunity to be present, give security against heedless measures being adopted. They invite discussion and examination, and are some guard against ill-advised action. Publicity in such matters concerning the community is one of the best guaranties against improvident action by the public representatives. Then the public record which is required to be kept is an additional safeguard to the public, affording the best evidence of what is done on its behalf, and a check against irresponsibility and extravagance. Before the present Constitution, the fiscal affairs, of the counties were intrusted to the county court, composed, it is true, of the same magistracy, but in certain limited matters presided over alone by the county judge. The county courts now have no such jurisdiction. Therefore the action of the county court in recording the order for the warrant in this ease was void for want of jurisdiction in that tribunal. Nor is that oi’der, or the paper upon which it was based, such an order or judgment as that they could not be collaterally, attacked by the county or anybody else concerned. Being void, they might be, and should have been, disregarded by all. The admitted facts are that appellants have, without lawful authority or legal right., got possession of $450 belonging to the county. Doubtless it was by a mistake on the part of the county clerk and sheriff, [213] as well as on the part of appellants. Nevertheless, it was without warrant of law. An action to recover it as for money had and received properly-lies' in the name, and on behalf of the county. Such was the judgment of the circuit court, which is affirmed.