Harrison County Court v. Smith's Administrator , 54 Ky. 155 ( 1854 )

Chief Justice Marshall

delivered the opinion of the Court—

This is an appeal frojn a judgment against the Harrison County Court for between $1,900 and $2,000, the estimated value of a house built by Smith as a jailer’s house, upon^a lot in Cynthiana, the seat of justice of the county; which lot belonged to said County Court, and once had upon it the house formerly used as a jailer’s house, adjoining or near to the county jail; the old house having been pulled down for the erection of the new one on or near its site.

It seems that the erection of the house had never been authorized by a County Court composed of the county judge and a majority of the justices of the county, but at most was authorized by the orders of the county judge holding the County Court; and the work proceeded with the knowledge of some (one or more) of the justices as to the manner in which it had been authorized, and with a knowledge of some others, acquired during its progress, that the house was in fact being erected on the public ground on which the jailer’s house had formerly stood. There seems to be no doubt that the county judge believed that he was authorized to have the building erected without the co-operation of a majority of the justices; and it is certain that Smith, the builder, believed that the contract under which he was erecting the house was properly authorized so as to bind the court and be a charge upon the county. And it is quite probable that the justices of the court who saw the building going on without suggesting a doubt or a question as to the authority or the liability, may, as they suggest, have severally supposed that i\ had been sufficiently authorized by others than themselves. We may add that the organization of the County Court having been shortly before radically changed, and the great mass of its powers having been invested in the county judge alone, as the County Court, there may have been a mistake, not only on the part of the county judge, but also on that of the justices of the county with regard to their respective powers, and much more on the part of the mechanic who built the house.

1. The Constitution, Article IV, section 3, authorized the Legislature to pass laws requiring that a majority of the justices of the peace of each county should set at the Court of Claims to assist in laying the county levy. The act of 1851 requires the attendance of the justices in making appropriations exceeding $100 at one term. And although the- 19th article of the Revised Statutes gives power to the County Court in general terms to erect, superintend, and repair all needful county buildings; and although the 4th section of the 21st article of the same title declares that justices of the peace shall only compose a part of the County Court in laying the county levy and appropriating money, and transacting other financial business, yet the 1st section of article 3, title “County Levy,” declares expressly that the County Court, (except the county of Jefferson) shall not, unless composed of the majority of the justices of the county, have power to appropriate or charge upon the county more than $50 for one object, or more than $100 at one term. Hence a county judge sitting as the County Court had no power to lay a charge upon the county for the erection of a new jail, costing more than he was authorized to impose, for any one object or at any one term.

But for many years before the adoption of the Revised Statutes, the Legislature had, in repeated enactments, required that the County Court, not only when laying the county levy, but when making any appropriation, or laying any charge upon the county exceeding $100, at one term, shouldbe composed at least of a majority of all the justices of the county. The constitution of 1850, (art. 4, section 37,) authorizes the Legislature to provide that the justices of the peace in each county shall sit at the court of claims, and assist in laying the county levy and making appropriations only. The act of March, 1851, to organize County Courts, requires the attendance of the justices of the county, in making appropriations exceeding $100 at one term. And although the 19th article of the Revised Statutes, title “Courts,” gives power to the County Court, in general terms, to erect, superintend, and repair ail needful county buildings and structures, which clause, if it stood alone, might give some ground for the claim of power made in behalf of the county judge. Yet, as the 4th section of the 21st article of the same title declares that justices of the peace shall only compose a part of the court in laying the county levy and appropriating money, and transacting other financial business; and, more especially, as the 1st section of article 3d, title “County Levy,” declares expressly that the County Court (except for the county of Jefferson,) shall not, unless composed of a majority of the justices of the county, have power to appropriate or charge upon the county more than $50 for one object, nor more than $100 at one term, we consider it unquestionable that under these enactments, which we regard as being to the extent at least of the restriction just mentioned, clearly constitutional, the county judge, sitting as the County Court, had no power to lay a charge upon the county for the erection of a new jail at a cost which must have been expected to exceed, and has actually exceeded by many hundred dollars, the sum which he was authorised to charge upon the county for any one object, or even at any one term. And this excess, if actually authorized by him, is the more flagrant from the fact that there does not appear to have been any limit placed by him upon the cost to be incurred in the erection of the building referred to.

Under the statutes which have been referred to, we are satisfied that neither the county of Harrison nor its County Court, as an aggregate body or a quasi corporation, representing and acting for the county in its fiscal affairs, and authorized through the power of taxation to provide for and coerce the debts due from the county, was bound by any order which the county judge, or less than a majority of the justices, setting as a County Court, may have made for the erection of this building; and much less is the county, or the County Court, or its fiscal agent and representative, and in its corporate capacity, bound by the vague and uncertain acquiescence of some members of the body who may have seen the work going on without objection or question.. But although under these views we must conclude upon the case presented by this record that the judgment against the County Court, eo nomine, to be enforced doubtless against the county, is erroneous, we are yet of opinion, as before, that the building having-been erected on the public ground of the county, for a public purpose, coming within the legitimate obj ects and power of the County Court, and by the authority if not by the formal order of the county judge, and the labor and expense of the erection having been incurred by an individual in good faith for the public benefit, under the belief that he was acting under proper authority, and that the County Court and the county were bound for his reimbursement, he was in justice and good conscience entitled to a just equivalent, at least to the extent of the ameliorations of the public property produced by his labor and expense. If it had appeared that the County Court (a majority of the justices being present) had assumed, (or if it should actually assume,) the possession and control of this new erection, by authorizing its jailer to reside in it or otherwise, the claim, in conscience and justice, of which we have spoken, might assume the character of an enforcible equity. And at all events the builder may remove the building.

2. Neitherthe County Court as an aggregate body or quasi corporation, representing and acting for the county in its financial affairs, and authorized through the power of taxation to coerce debts due from the county, was not bound by an order of the county judge sitting as county judge to raise money to pay for public buildings, which he had authorized to be erected; nor to levy money to pay for buildings so erected, altho' under their observation or part of them.

But as the case stands, the judgment is reversed, and the cause remanded with directions to dismiss the petition without prejudice.