Case 95 — 'Action by William Goodwin against Daviess County and Others, to Enjoin the Payment of a Salary to the County Judge as Road Supervisor.

Dec. 1.

#### Daviess County, &c., v. Goodwin.

APPEAL FROM DAVIESS CIRCUIT COURT.

Judgment for Plaintiff and Defendant, Haskins, Appeals.

Affirmed.

Road Supervisor — County Judge — Eligibility to Office — Taxpayer — Right to Maintain .Suit — ¡Fiscal Court — Authority.

Held: 1. Kentucky Statutes, 1899, sections 4306, 4339, relative to roads, vest the control ¡of roads ¡ini the fiscal Court. The general scheme there provided is for the appointment of a supervisor, whose duty it is to report to the county judge under whose immediate control he is placed, and in whose court he must execute hand, and from wiblose court warrants may issue for violations ,of duties by the supervisor. In' mjaipy instances the concurrent action 'Of the county judge and supervisor is required, and in ease of a Vacancy in 'the supervisor’s lofiice the county judge miay appoint islome one to fill it until the next term of the fiscal court. Held, that it was contemplated by the statute that the county judge and ¡supervisor should he different persons, although, under slectiom 4315, lit is .provided that the fiscal court, instead of appointing the supervisor, may authorize the county judge to let out the working of roads, the other duties o'f the office being discharged by road ¡overseers, in which ease, however, the county judge acts as judge, and nor as supervisor, and is. entitled to nio adiditional compensation for his services.

2. The fiscal court is a body of limited authority, and its action in, appointing a county judge as supervisor of roads is void, and vests in the judge no right to the ¡office.

3. A citizen and taxpayer of a county suing for himself and .all Other taxpayers may, as such, maintain an ¡action to ¡prevent the payment to the county judge of a salary ¡as ¡supervisor of roads, to which office he was illegally appointed by the fiscal court.

*892¡C. S. WALKER, attorney eor appellants.

SYNOPSIS.

1. There is no incompatibility between the offices *to£*county judge and road supervisor, and where there is mo supervisor, the county judge may be authorized by the fiscal court to discharge certain specified duties of the road supervisor, in which case he and the noad overseers perform all the functions of the office, or he may be appointed by the fiscal court to the position of road supervisor, which is, strictly ¡speaking, not an office, but an employment, and whether so1'authorized to act or so appointed, he is entitled to receive the compensation provided for the service by the statute. Kentucky ¡Statutes secs. 4306, 4307, 4308, 4313, 4315, 4323, 4344, 4346, 4314, 4317, 4312, 4318, 4309, 4311; People v. Green, 58 N. Y., 304, 305; Throop on Pub-, lie Officers, sec. 34; 23 Am. & Eng. Erncy. Law, (2d ed.), 333.

2. Section 1072, Kentucky Statutes, was intended to be a reproduction ¡of section 11, ch. 28, art. 17, ¡of the General Statutes, the former being a mere collection ¡of laws, while the latter has been - adopted by an act of the Legislature as the law of the State. O’Mahoney v. Bullock, 97 Ky., 781; Acts, 1887, 1888, vol. 1, p. 84.

The county judge does not receive a salary, but “an alljow¡ance commensurate to the character 'and quality of the services performed,” and where he is authorized to perform the functions of road supervisor;, he is entitled to the compensation provided for such extra ¡services whether they be regarded as .having been performed *ex officio,*or under a distinct and independent} authorization' or employment. Kentucky Statutes, secs. 1072, 4346; Gen. Stats., sec. 11, cb. 28, art. 17; Ohio County Court v. Newton, 79 Ky., 268, 269; *In re*Conrad, 15 Fed. Rep., 642, 643; 23 Am. *&*Eng. Ency. Law, (2d ed.), 392; Converse v. U. S., 21 How., (U. S.), 469; City of Covington v. Mayberry, 9 BusE, 304; ¡Badeau v. TJ. S., 130 TJ. S., 451; TJ. S. v. Brindle, 110 U. ¡S., 694; U. S. v. Saunders, 120 TI. ■S., 129, 130; U. S. v. Fillebrown; 7 Pet, (U. S.), 28; TJ. S. v. Harsha, 56 Fed. Rep., 953; Board of Education v. Moore, 24 Ky. Law Rep., 1480.

The constitutional provisions, secs. 161, 23¡5, and opinions in Jefferson County v. Waters, 24 Ky. Law Rep., 816; Board, &c. v. Moore, Id., 1478; Commonwealth v. 'Carter, 21 Id., 1509; Morgantown Deposit Bank v. Johnson, 22 M., 210, have mo bearing.

3. If the offices or positions are incompatible, the acceptance hy Haskins of that of road supervisor operated a vacation of *893his office of county judge, and he is entitled to the compensation allowed him as road supervisor. Kentucky Statutes, sec. 3744; Goiodloe v. Eox, 96 Ky., 630; ,Stubhs v. Lee (64 Me., 195), 18 Am, Rep., 253.

4. The right of a .public officer to the compensation of his office, is incidefnt to and dependent upon his title to the office, and if consituitional'ly ineligible, he can not recover for services. 23 Am. *&*Eng. Ency. Law, (2d ed.), 396, 397.

In the present case, according to the decision of the court below, there was no *de jure*supervisor of -roads, and Haskins was a mere *de facto*supervisor, in which -case he is entitled to compensation as incident to the rendition of services. 8 "Am. *&*Eng. Ency. Law, (2d ed.), 813; Behan v. Prison Comrs., 31 Pac. Rep., 521; Miller v. Seney, 81 Ga., 489; Gorman v. Boise County, 1 Idaho, 655; State v. Draper, 48 M-o., 213; State v. (Clark, 52 Mo-., 508; .State v. John, 81 Mo., 13; Dickerson v. Butler, 27 Mo. App., 9; Erwin v. Jersey City, 60 N. J. L., 141; Henderson v. Glynn, 2 Colo. App., 303; Dunoan v. Lucas, 83 Ky., 468.

5. An injunction restraining the person- in possession from1 exercising the functions, or receiving the compensation of an office will .not lie, and the nnly proceeding to try the title to an office in this .State is the statutory .one, -and the title can not be inquired into, in any other proceeding. Throop on Public Officers, sec. 850; 8 Am. & Eng. Ency. Law, (2d. ed.), 826; Civil C-ode, secs. 480, 483) 487'; Hagner v. Heyberger, (7 Watts *&*Sergeant, 104), 42 Am. Dee., 2-21, 222, 223, 224.

6. An action to try the title to office can only he brought by tbe parson entitled/ thereto or the Commonwealth. 'Civil Code, secs. 480, 483, 487; Tillman v. -Otter, 93 Ky., 604, 605; Toney v. Harris, 85 Ky., 463, 464; 30 Am. Dee., 49.

If tbe present action were authorized, it could not be maintained by ¡appellee as a mere taxpayer. Civil Code, see. 25; ¡15 Ency. Plead. & Prac., 642, *et seq.;*Oswald v. .Morris, 92 Ky., 51; Throop on Public Officers, see. 851.

7. Tbe levy .authorized by Kentucky -Statutes, see. 4307, is all that the fiscal court is ¡required to .do to work the roads by taxation.

8. The judgment in the present ease is -a determination collaterally of the title to- an office, aihd an, interference with the proceedings of a subordinate tribunal wlhioh possessed judicial' discretion in tbe matter involved, and is unauthorized. 7 Am. & Eng. Ency. Law, (2d. ed.), 999, 1000, 996-998, and notes, 937; .Sihinkle v. City of Covington, 83 Ky., 429; 23 Am. *&*Eng. Ency. Law, (2d ed.), 372.

*8949. Money paid a county officer, not authorized by the statutes or Constitution, may be recovered, back, and the right of action is primarily in the county. 7 Am. *&*Eng. Ency. Daw, (2d. ed.), 960, 961, and notes; -Howard v. Deposit Bank, 80 Ky., 496.

ADDITIONAL SYNOPSIS.

Section 25 of the Civil iCode, is the same -as the modem common law1, (Hendrix v. Money, 1 Bush, 308; 15 Ency. PI. *&*Pr., 627, *et seq.,*and note on 629), and under it, a mere citizen .and taxpayer can n:ot challenge the -acts of the authority of the fiscal court of a county, unless he can show a direct pecuniary interest arising fr.om his taxes being increased. State, *ex reX,*Saunders v. Kohnke (109 La.), 33 Southern Reporter, 793, 797-8.

LA VEGA CLEMENT'S, attorney for Daviess County, and C. -W. BRANiS-FORD, Treasurer.

THE QUESTION.

The only question to be determined hy this appeal is, whether or not the county judge, whose salary has been fixed hy the fiscal court, can be appointed road supervisor and draw -an additional salary as such supervisor in addition -to his salary as county judge. In tire determination of this question; neither Daviess county nor C. W. Bramsford, treasurer of said county, has any .pecuniary interests, hut are only interested im the legal' determination of .the question so that the funds ,of the county shall he paid -out -according to law. I am not attempting to> argue either side of the contention, hut will make a few suggestions ion the points which arise and are to he determined in this action.

Section 161 of the Constitution- of Kentucky, provides that the salary of no county official shall he increased nr diminished during his term of office. It might he said1 that the salary -of the county judge having been fixed, that any additional salary as read supervisor would be an increase of his salary, and prohibited hy said section. The fact that the salary of the county judge was fixed after his induction into office, rather than before -h'is election and qualification may net vary the .rule, as this court has decided that where the salary of a county judge had not been fixed before he tlook his oath of office, hut afterward had the same effect as though it had been fixed prior to his election and qualification.

*895I call your Honors’ attention to the case of Jefferson County v. Waters, 24 Ky. Law Rep., p. 816, and also, Board of Education of the City of Lexington v. .Moore, 24 Ky. Law Rep., p. 1478, in which questions similar to the one at bar are discussed. I trust that the court will decide this appeal irrespective of technicalities, so that the officials of Daviess county and other counties may be rightfully guided in matters of similar nature that may arise in the future.

W. iSCOTT MORRISON, attorney for appellee.

SYNOPSIS.

1. The appellee who sues for himself and all other taxpayers of Daviess county, shows by his petition and amended petition that he is the owner of property in said county subject to taxation, and the county failing to institute this action and being made a party defendant, -the lajppelleee shows .himself entitled to -institute aind maintain, this action. High on Injunctions, vol. 2, (2d ed.), secs. 1298-99, 1300, Harvey v. Indianapolis R. R. <Go., (32 Indiana, 244), Sinclair v. Board of ‘County Commissioners, American -State Reports, vol. 23, 694; Alkison and Others v. Louisville, Harrods Creek and- Westport R. R. Co., 9 Bush, p. 250; -Crampton v. Zabrískie, II. S. Report, 101, p. 1070; Dillon’s Municipal 'Oonpo,rations (3d ed.), vol. 2, secs. 914-922, subsees. -1, 2, 3; Cooley -on Taxation, -p. 169 (2d. ed.)

■2. There is no question of incompatibility of office presented in this record, nio-r -ajny attempt ito -enjoin maintaining the public roads -of the county by taxation.

3. -Chapter 110, title, “Roads and Passways,” section 4287 to 4347, Kentucky 'Statutes, both inclusive, contain all the provisions of ithe statute with reference to establishing, maintaining and keeping in repair, the Hoads -and bridges -of -the county, as well as the particular manner of the exercise -of the jurisdiction o-f the fiscal court over the same. Chapter 110, Kentucky Statutes, sec. 4287 to 4347, both inclusive.

4. The statute does not confer authority -upon the fiscal court in its discretion to -appoint t-he county judge road supervisor, hut, -on the contrary, the authority is limited to authorizing the county judge to .let -out the working of the roads -and building and repairing -of bridges, -and to take and approve -the bonds of the contractors. Sec. 4315, Kentucky Statutes.

'5. The order of the fiscal court of date, January 27, 1902, (Record 9), fixing the salary -of appellant, Haskins, as county judge at 1,000 per .annum, was the fixing of his salary fo-r his *896entire term of office, amid this $1,000 per 'annum is the full compensation for aH the services he oan perform as county judge. .Sec. 161 of the Constitution; Jefferson County v. Waters, Ky. Law Rep., vol. 24, p. 816; Board of Education of the Oity of Lexington, etc. v. Moore, Ky. Law .Rep., vol. 24, p. 1478; Commonwealth v. 'Carter, 21 Ky. Law Rep., 1509; Morgantown Bank v. Johnson, 22 Ky. Law Rep., 210; Marion County Fiscal Clourt v. Kelly, 2'2 Ky. Law Rep., 174, .Kentucky ■Statutes, sec. 1749, suhsecs. 1, 5; Throop on Public Officers, •sec. 478, and authorities cited; Wortham v. Grayson County Court, 13 Bush, p. 53; Covington, v. Maybury, 9 Bush, 304.

6. The duties of the county judge are prescribed by law, and it is mot within the power of the fiscal court to appoint him to perform other .duties, therelby taking him away from the discharge of the duties imposed upon him by law.

7 The appellant, Haskins, in accepting the office of county judge, assumed all the duties imposed upon that office by law; a part lof the duties which liei thusi assumed was the duty, when .directed by the fiscal court, to let out the working of the-roads and! the building and repairing bridges, and to. take and •approve .the bonds of the contractors, and that being one ¡of the duties of *the*county judge when imposed upon him, .no compensation can be allowed him therefor.

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 *897road 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 *898respective 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.