Perry County v. Engle

Highways — iRepairs—Contracts—Authority oe County Court— Notice oe the Law. 'Held: 1. A county court has no authority to let contracts concerning the repairs of public roads. 2. Under Kentucky Statutes, 1899, section 4339, governing the cutting down of hills on public roads by contract, providing that the road supervisor, on order of the county judge, may let the work to the lowest and best bidder, and concluding, “If there be no snpervisor, the fiscal court may order such work done in the manner provided in this section by the county judge or a commissioner appointed by it,” where the fiscal court had not appointed a supervisor of roads, the action of the county court in appointing a commissioner, and the action of the commissioner in letting such work to. a contractor, were void, and the county was not liable therefor. 3. All persons must take notice that a county can contract only in the manner and by the persons and for the purposes expressly provided by statute.

Case 64 — Claim by Henry Engle eor Work Done by Him on a Public Highway in Perry County. APPEAL PROM PERRY CIRCUIT COURT. Claim Allowed by Circuit Court and Perry County Appeals. At the October term, 1901, of the Perry County Court John Smith was, by an order of said court, appointed a special commissioner for said county to let a contract to blow out rock in .Troublesome creek, opposite Mill Branch, under which authority Smith, as commissioner, made a contract with Henry Engle to do said work, and at the following February term filed his report to said court with a bond taken by him from Engle for the performance thereof. On the same day appellant filed its exceptions to said report and to the order appointing said Smith special commissioner, which were sustained by the court, and the court adjudged .said order void and all proceedings thereunder were held for naught. At rhe April term of the fiscal court of Perry county appellee filed a claim of $400 for said work which was heard and disallowed, and from this order an appeal was prosecuted to the Perry iCircuit Court, which rendered a judgment in favor of appellee for $400, from which judgment this appeal is prosecuted. We contend that the appeal from the judgment or order rejecting the claim in the fiscal court is not well taken: ■1. Because the alleged claim arose upon a contract which was illegal and void. 2. Because an appeal from a'n order of a fiscal court only lies when the question to be decided is based upon the reasonableness of a claim and not when a question of debt is to be litigated, the remedy being for the claimant to file a petition and plead his contract and its performance in the usual way. 3. We contend that the order appointing .Smith special commissioner for Perry county was ultra vires ajid void, and all his acts thereunder were void and that he had no authority to make the contract or any contract with appellee, and the county is not bound by such contract or any act done by Smith. 4. We contend that the building and repairing of all roads and causeways are matters over which the fiscal court has original and exclusive jurisdiction, and over which the county court has neither jurisdiction nor authority. 5. We contend that the county is a body politic; that the fiscal court is its legally organized board of directors, the supervisors, of its affairs, and has the sole right and authority to exercise-jurisdiction over all contracts to, which the county may be a. ■party; to prescribe the manner in which, and the terms upon which, all public utilities may be constructed, and to do all things, needful, especially in all matters involving the expenditure of public money, and the performance of these functions by any other» body is an usurpation of authority and void. 6. We also claim in this case that the work done by appellee was done or completed according to contract. And we ask that the judgment of the lower court be reversed. AUTHORITIES CITED. Ky. Stats., secs. 1840, 1834, 4306, 4339, 4335; 17 Ky., 712; Wortham v. Grayson County, 13 Bush, 53; Story on Contracts, ■2d ed., part 1, chap. 1, sec. 22; Hare on Contracts, 569, 573, 585; Story on Contracts, 2d ed., part 3, chap. 1, sec. 972; Am.'& Eng. Eney. of Law vol. 3, p. 892. The work in controversy was let to the lowest bidder and the appellee was awarded the contract, for which he executed bond, and finished his work about the first of -March, 1902, and at the April term of the fiscal court appeared and filed his claim again»,t the county. John Smith, who was appointed by the county court to let the contract, was a justice of the peace and a member of the fiscal court. The claim was disallowed by the fiscal court and the claimant appealed to the circuit court, which we contend was the proper thing to do, and said court allowed the claim. All the orders and proceedings taken in the county, court setting ■aside the order appointing Smith commissioner were made without notice to appellee, and after he had about finished his work under' his contract. The testimony shows that appellee’s claim is meritorious; that the work was reasonably worth more than his bid, and that the people of Perry county, had accepted and was using the road he had made as a public highway and are still using it as such. He expended $280 in money for blasting powder, fuse and explosives to blast the rock out of the road, besides his own labor, and the fiscal court has accepted the road and allotted road hands on it- Whilst the courts, as far as the law gives them power, should protect the interest of the finances of the counties and the State, they should also protect the interests of the citizens, whose money and lábor has been given to and accepted: by the county, and which reason and justice demands should be compensated. Ky. 'Stats., sec. 978; Hudgins v. Carter Co., 72 ,S. W., 7’30.