
    CASE 100. — ACTION BY J.M. O’BRIEN, A TAXPAYER AGAINST J. W. THOMAS JR., A MEMBER OF THE FISCAL COURT.
    June 17, 1910.
    Thomas v. O’Brien.
    Appeal from Bourbon Circuit Court.
    R. L. Stout, Circuit Judge.
    From the judgment defendant appeals.
    Reversed.
    1. Officers — Fiscal Courts — Pay of Magistrates — Increase During Term. — 'Prior to 1902, Ky. St. section 1845, limited the pay of the magistrates who were members of the fiscal court to $3 a day for each day they were in attendance upon the court, and, as amended in 1902, (Laws 1902, c. 94), they were (excepting county judges) allowed pay for each day they were engaged in actual attendance at committee meetings. Ky. St. 1909, section 1749, subd. 1, provides that no ’'• officer shall receive any greater fee than is allowed by law, etc. Const, section 161, provides that the compensation of any state or county officer shall not be changed after his election or appointment. Held, that the amendment to section 1845 did not increase the pay for members of the fiscal courts (except county judges) who were elected prior to 1902, since the magistrates in acting upon the committees do not act as magistrates.
    2. Counties — Contracts—Individual Interest of Officers.' — Since the enactment of the amendment in 1902, it is competent for the fiscal court to elect one or more of its members as a committee to supervise 'the construction of public improvements, and to pay 'the members of such committee a per diem compensation, the purpose of such amendment being to create an exception to Ky. St. section 1844, providing that no member of the fiscal court shall be pecuniarily interested in any contract with the county, and to enable them to contract with themselves in this one particular.
    3. Officers — Contracts with Officers — Special Authority. — Inherently a public official cannot contract with himself on behalf of the public, unless he be specially authorized to do so.
    
      4. Counties — Fiscal Courts — Order Allowing Payment ot ■Claims — Validity.—Where a member of the fiscal court had received pay for attending to committee work, and no order of the fiscal court was made allowing him pay, until after suit was brought by a taxpayer to have the money- returned claiming the allowances were unauthorized by law, it was not illegal for the court to enter the order, since what it could have done before it had the power to do later.
    5. Costs — Fiscal Courts — Officers—-Action Against — Allowance of ■Costs. — Where, at the time an action was brought against a member of the fiscal court to recover money paid him for attending to committee work, no order of allowance of the fiscal court had been made, and, after demurrers to the answer were sustained, the fiscal court formally allowed the claim, the plaintiff’s cause of action when it was brought was technically good, and he was entitled to costs up to the time of the filing of 'the amended answer setting up the valid allowance of the claim.
    TALBOTT & WHITLEY and McQUOWN & BECKHAM for appellant.
    T. E. MOORE JR., for appellee.
   Opinion of the Court by

Judge O’Rear

Reversing.

Appellant was justice of the peace in Bourbon county for the four-year term beginning January 1, 1902, and by- virtue of his office was a member of the fiscal court of Bourbon county during that term. The court appointed various committees to look after certain public matters, one the building committee which had charge of the rebuilding of the courthouse which had been destroyed by fire, and the sale and removal of the old material not destroyed, as well as the collection of insurance on the burnt building, which was in litigation. The county also maintained a system of free turnpikes, embracing about 325 miles of turnpike roads, and a number of bridges thereon. The roads and bridges were maintained by taxation, and were under the jurisdiction and control of the fiscal court. A “turnpike committee” was also appointed by the court. Appellant, Thomas, was made a member of each of these committees, and served upon them throughout his term of office, giving a great deal of time and labor to the work of the committees. In addition, he attended meetings of the fiscal court when it was in session. For his services both in attending court and in attending meetings of the committee he was allowed $3 a day for the actual time so employed, and was paid the sums so allowed. This is a suit brought by a taxpayer and citizen of the county against Thomas to recover the sums paid him for the above-mentioned services upon the ground that the allowances were unauthorized by law. The circuit court denied the plaintiff’s demand as to the time paid for which was represented by appellee’s attendance upon the fiscal court, but sustained the suit in so far as it sought to recover for the other items. The fiscal court had refused to sue; hence the action of the taxpayer plaintiff. Thomas appeals from the judgment requiring him to repay to the county the sums which had been paid to him for Ms services upon the committees.

That appellant rendered the services for which he was paid is not disputed, nor is the fact of his good faith questioned. The fiscal court had for many years proceeded upon the idea that such allowances were legal, and had uniformly pursued this policy in administering its affairs. Instead of entering orders in court allowing for the services, the plan was for each magistrate to file Ms claim for committee services, which, when indorsed by the county judge, or some other member pf the committee, was filed with, the county clerk, who issued the warrants for the sums claimed. In this manner was the money paid. And this was the state of case when this suit was brought. After the circuit court had sustained demurrers to the answer of appellant setting forth the above facts, the fiscal court met and formally allowed to appellant the various sums which had been paid to him for his services as committee, making the order retroactive so far, as the order expressed it, as it lay in the power of the court to do. An amended answer was then filed setting up the order of allowance. A demurrer was sustained to that answer, and, as no other defense was tendered, the judgment above indicated was rendered.

Prior to 1902, the pay of the magistrates who were members of the fiscal court was limited to $3 a day for each day they were in attendance upon the court. Section 1845, Ky. St. 1899. Another statute (section 1749, subsection 1, Ky. St.) provides: “No officer shall demand or receive for his cervices any other or greater fee than is allowed by law, or any fee for services rendered when the law has not fixed a compensation therefor, nor any fee for services not actually rendered.” And section 1844, Ky. St., then also in force, reads: “No member of the .fiscal court shall be interested directly or indirectly, or be concerned in any contract for work to be done or material, to be furnished for the county, or any district thereof, nor purchase nor be interested in any claim against the county or state.” Such was the law when appellant was elected magistrate. ’ By section 161 of the Constitution of this state it is provided: “The compensation of any state, county, town, or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he may have been elected or appointed.” In 1902, after appellant’s election, the Legislature amended section 1845, Ky. St., by adding thereto the following: “And also for each day in which they are engaged in actual attendance at the meetings of the committees of said court, said compensation to be allowed by said court and to be paid out of the county levy; provided that no compensation shall be allowed to members of the court for attendance at the meetings of the commit tees except in those counties that maintain a system of free turnpikes under the control and supervision of the fiscal court.”

o It is now contended that the effect of this amend ed act was to increase the pay of members of tho fiscal courts (except county judges) who were elected prior lo 1902. We think not, and so held in the recent case of Flowers y. Logan County (decided at this term, April 27, 1910), 127 S. W. 512. The magistrates in acting upon the committees do not act as magistrates, nor could they claim the privilege of so acting by virtue of their office. Nor could they be required to so act because .of their member ship in- the court. Where the county maintains a system of free turnpike roads, and retains the supervision and control of them, it is competent for the court to let the work, or to require overseers to attend to K Until the amendment cf 1902, it was not lawful for the magistrates to elect themselves or any of their number to do that, work, because ox the prohibition contained- in section 1844, Ky. St., supra. The purpose of the amendment was to remove that disability; that is, the disability to contract with themselves in this one particular, and to expressly -dlcw them to do so. It may be conceded that inherently a public official cannot contract with himself on behalf of the public, unless he be special 1; authorised to do so.

If any ine else had been appointed committee to do tlie identical work done by appellant, it is not questioned that it would have been within the legal power of the fiscal court to have paid him for it out of the public revenues. Any .one else, not a member of the court, might have been appointed to do the work. The compensation of the magistrates was not changed by the amendment. We think that it was not illegal for the court to enter an order after the work was done ordering it to be paid for. What the court could have done before, it had the power to do later. But, as appellant had no right to receive or retain the pay for his services before an order of.the court allowing it, the plaintiff’s cause of action was technically good when it was brought, and he ought, at least, to recover his costs up to the time of the filing of the amended answer setting up the valid allowance of the sums. •

The judgment is reversed, and cause remanded, with directions to overrule the demurrer to the answer as. last amended,, and for proceedings not inconsistent herewith.  