Page images
PDF
EPUB

Opinion of the Court.

This court held that the power given by the Kentucky statutes to adjoining counties to construct bridges across boundary streams at joint expense did not take away the common law right of each of the counties to construct such bridges at its sole cost.

It also held, in effect, that the allegations of the petition and amended petition, being admitted to be true by the demurrer, the contract sued on must be held to have been made under that section of the statutes which confers upon the County Court jurisdiction to erect public buildings, bridges and other structures, and not under the section providing for the joint action of contiguous counties, as was contended on behalf of the plaintiff in error; and that therefore the averments of the petition disclosed a right of action in the plaintiffs.

Upon the return of the case to the Circuit Court, Bullitt County filed an answer specifically denying the truth of every material allegation of the petition and amended petition, the chief and controlling defence being that the contract sued on was not the contract of Bullitt County. As a part of its answer the county filed a complete transcript of the orders of its County Court. Plaintiffs replied to the answer, and afterwards, with the leave of the court and against the defendant's objection, filed a second amended petition. Issue was joined, and the case was tried by a jury, resulting in a verdict for the plaintiffs for the full amount claimed by them, upon which judgment was rendered. A motion for a new trial having been overruled, this writ of error was thereupon sued out.

The first assignment of error, namely, that the court erred in allowing the second amended petition to be filed, has been so frequently considered and declared unfounded by this court that it may be dismissed with the remark that amendments are discretionary with the court below, and not reviewable here. See the opinion of the court in the case of Chapman v. Barney, 129 U. S. 667, decided March 5, 1889, and the authorities there cited. The same remark applies to the assignment that the court erred in overruling a motion for a new trial. Arkansas Valley Co. v. Mann, ante, 69, decided March 5, 1889, and the cases there cited.

VOL. CXXX-10

Opinion of the Court.

The leading assignments of error substantially present but one proposition, to wit: Conceding that the county had the power to build the bridge, (as was determined by this court on the former writ of error,) the averments of the plaintiff's petitions were not sustained by the evidence adduced at the trial, and the contract sued on was not made by the county in the mode provided by law.

The statute law of Kentucky applicable to such contracts made by a county is found in Art. 17, § 1,1 c. 28, of the General Statutes of that State (Frankfort, 1873):

§ 5.

"The county court is a court of record." (Page 307.) 9. "The records of the county court shall at all times show by whom the court is holden. When the justices of the peace compose a part of the court the records must state the names of those who take their seats, and when a member leaves the bench his absence must be noted."

§ 1, Art. 3, c. 27. "The county court, except for the county of Jefferson, unless composed of a majority of the justices of the peace of said county in commission, shall not have power to make appropriation of the county revenue or levy, or to make any charge thereon greater than fifty dollars for any one object."

It is contended that the contract sued on was not made in conformity with those requirements; that it was neither made nor authorized by the County Court, composed of the county judge and a majority of the justices of the peace of the county; and that there is no record of the County Court so constituted, showing that the contract was, as a matter of fact, authorized to be made.

In order to test the soundness of this position, it is necessary to consider the entire record taken together. In the first place,

1 § 1. The county judge in each county shall hold the County Court on the days prescribed by law; but at the Court of Claims, which shall be held once in each year, the justices of the peace of the county shall be associated with him and constitute the court; a majority of whom shall constitute a quorum for the transaction of business; which shall be confined to laying the county levy, appropriating money, and transacting other financial business of the county.

Opinion of the Court.

it cannot be denied, indeed the plaintiff in error concedes, that there are a number of orders which, even quoad hoc, come up to the requirements of "orders of record," and "of the court properly constituted," having been made when a majority of the justices were present.

Among these are

First. The order of June 18, 1877. This order recognized Ridgway as commissioner; it adjudicated the necessity of erecting the bridge; it adopted the Brawner site for that bridge; and it appointed Ridgway a commissioner to confer with a commissioner from Jefferson County concerning plans and specifications and cost.

Second. The order of July 16, 1877. This order appropriated $600 for the building of the bridge at the Brawner site; it directed the commissioner to report plans and specifications, and the bids made; it authorized the county judge (W. Carpenter) to receive bids and to accept or reject the same as he might think proper, looking to the interest of the two counties. Third. The second order of November 19, 1877, which appropriated $600 for the bridge.

Fourth. The order of November 18, 1878. This order showed a levy of a tax on the taxable property of the county for the purpose of paying for the bridge; a recognition of Washer as contractor for building the bridge, and of Danenhauer and Baecker as his assignees; and an allowance to them, as such assignees, in part payment of the bridge.

Fifth. The order of November 18, 1879. This order appointed a committee to examine the work on the bridge, and to report.

Sixth. The order of January 19, 1880. This order confirmed the committee's report, and discharged the committee. Such is that portion of the record which is admitted to be the record of the court "properly constituted." It is claimed that the record is defective in the following particulars :

It gave neither the judge nor the commissioner power to contract; although it is conceded that the power was given to the county judge to accept bids. The alleged contract does not appear to have been reported to the court; nor was there

Opinion of the Court.

any note of record that it was made by Ridgway; nor was the contract ever filed; nor does it show that the county judge accepted it. And lastly, while the record shows a knowledge of the fact that a contract existed, and was with the defendants in error, yet it does not show a knowledge of the fact that the contract assumed to bind Bullitt County for the whole cost.

Now, inasmuch as the record does show affirmatively an adjudication of the necessity of the contract; an appropriation for the preliminary work; the appointment of an agent (Carpenter) to make the contract; and a recognition of the contract by directing the levy of taxes to pay the contractor and his assignees for the work done; we do not think it necessary, in order to fix a liability upon the county, that the record should also show, affirmatively, the existence of those outside incidents which, as enumerated, it does not set out.

The case of Mercer County Court v. Kentucky River Navigation Co., and Garrard County Court v. Same, 8 Bush, 300, much relied on and quoted from by counsel for plaintiff in error, is, as a brief analysis will show, inapplicable to the controversy in the present case.

[ocr errors]
[ocr errors]

may on a majority

An act of the Kentucky legislature, passed in 1865, to incorporate the Kentucky River Navigation Company, provided in one of its sections: "that the county courts of the several counties bordering on the Kentucky River, the application of the corporation named, of all the justices of the peace being present, subscribe stock in said company, and levy a tax on all taxable property of said county sufficient to pay the whole amount of said subscription in three years from the time it was made, which tax shall be collected in all respects as taxes for state revenue are now collected." The Mercer County Court, a majority of the justices being present, made an order "that the sum of seventy-five thousand dollars be directed to be subscribed," and appointed one Joseph A. Thompson, a commissioner to subscribe the same in the Kentucky River Navigation Company. The Garrard County Court in like manner made an order that the sum of one hundred thousand dollars should be subscribed on the part of Garrard County, and also appointed an agent

Opinion of the Court.

to subscribe the same in said company. In pursuance of said orders the subscriptions were made by the persons appointed, on the books of the company, for and on behalf of each of said counties by its agent. The court held that the above orders and subscriptions were not binding, and did not amount to contracts of subscription, because the County Court had no authority under the statute to appoint a commissioner or agent to make the subscription.

The decision was simply that, where the County Court, assuming to act under a special statute, whereby was delegated to that court the extraordinary power of determining whether a county should subscribe in aid of the Navigation Company, and of making such subscription, undertook to appoint an agent to make the subscription, such appointment was void as being unauthorized by law. The whole question was, as to the power to appoint the agent; and the court held that, as no such power to appoint existed, the court could not bind the county, except by an order which itself amounted to a subscription, and which must be made, as evidenced by the record alone, when a majority of the justices were present. The court, however, clearly recognized the principle that it was legally possible to imply a subscription from the subsequent adoption and ratification by a full court of the act of Thompson.

Now, in the case at bar, the power to appoint an agent or commissioner is undeniable, and is not challenged. On the contrary, it is admitted. So also is it shown that the agent (Carpenter) was appointed. And, as we have seen, one of the orders of the court imports upon its face a knowledge of the contract made by its commissioner, and amounts to a ratification of such contract.

The well-settled maxim that a court of record can act only through its orders made of record, when applied to judicial proceedings, means that where the court must itself act, and act directly, that action must always be evidenced by the record. But in this instance, where a body has large administrative and executive powers, and is by law authorized to appoint agents, the principle cannot be so extended as to mean that all the acts of its agents shall appear of record.

« PreviousContinue »