
    CASE 11. — ACTION BY T. J. SLAYTON FOR HIMSELF AND OTHER TAXPAYERS AGAINST J. L. ROGERS TO RECOVER MONEY IMPROPERLY ALLOWED HIM AS COUNTY ATTORNEY. —
    February 6.
    Slayton, &c. v. Rogers
    Appeal from Muhlenberg Circuit Court.
    W. P. Sandidge, Circuit Judge.
    Prom a judgment of dismissal plaintiffs appeal—
    Affirmed.
    1. District and Prosecuting Attorneys — Duties — Statutes- — Construction. — Ky. St. 1903, sections 126, 127, requiring each county attorney to attend- all county and fiscal courts in Ms county, etc., and providing that he shall conduct actions before “any of the courts of this Commonwealth” in which the county is interested, etc., do not require a county attorney to perform services in a federal court or in a court outside of the Commonwealth; the words “courts of th-is Commonwealth” meaning only courts organized under the- Constitution and laws of the Common-wealth.
    2. Counties — Agents—Eligibility—County Attorneys as Commissioner to Settle with Sheriff. — Prior to the acts of 1906 (Acts 1906, p. 158, c. 22, section 18), providing that the commissioner appointed to settle with the sheriff shall be some other person than the county attorney, the fiscal court had power, under Ky. St. 1903, section 4146, providing that the fiscal court shall appoint a competent person to settle the accounts -of the sheriff, to appoint the county attorney as commissioner to settle with the sheriff; competency being the only qualification prescribed, and there being nothing in the Constitution or statutes disqualifying the county attorney.
    
      3. Same — County Indebtedness — Funding Indebtedness — ■ Power of Fiscal Court. — The power of the fiscal court to fund the county indebtedness conferred by Ky. St. 1903,. section 1852, providing that any fiscal court of the county , may collect iany outstanding bonds and substitute therefor new bonds, etc., carries with it the power to employ such agents and attorneys as may be necessary for. that purpose.
    4. Same — -Agents—Qualifications.—Since there ia no statute prohibiting the county attorney from contracting with the county, and since he is, under Ky. St. 1903, section 127, disqualified only from acting in opposition to the interests of the county, the fiscal court may employ him as commissioner in the settlement and compromise of the bonded indebtedness of the county.
    5. Officers' — Compensation—Additional Compensation. — An officer performing extra services outside of his- official. duties, not interfering therewith, is entitled to compensation therefor.
    .6. District and Prosecuting Attorneys — Compensation — Extra Services. — The county attorney performing services under an appointment by the fiscal court as commissioner in the settlement and compromise of the bonded indebtedness of the county performs services outside of his official duties, and is entitled to compensation therefor, notwithstanding Const, section 161, providing that the compensation of any county officer shall not be changed after his election or appointment.
    7. Appeal — Review — Presumptions — Matters Not Shown by Record — Counties — Order for. Payment Out of Delinquent Taxes. — An order of the fiscal court appropriating a sum of money, and directing payment out of delinquent taxes, cannot be held invalid, on appeal, on the ground that the money had been appropriated for other purposes; it not appearing from the record that the money has been otherwise appropriated, or that such other purposes have not been satisfied.
    WILLIS & MEREDITH for appellees.
    POINTS AND AUTHORITIES.
    - 1. Is the county attorney entitled to receive compensation from the county in addition to his regular salary for services performed in settlement of the accounts of the sheriff as required by section 4146, Kentucky Statute®? (Kentucky Statutes, section 4146, Ky. Const., sec. 161, 235; Dillon on Municipal Corporations, 444; Nunnemaicher v. City of Louisville, 98 Ky., 334; City of Winchester v. Frazer, 43 S. W., 453; McCracken Co. v. Reed, Judge, 101 S. W., 348; Spaulding, County Attorney v. Thorn-berry, 103 S-. W., 291; Board of Education v. Moore, 114 Ky., 640.)
    2. Can the county attorney receive compensation in addition to his regular salary for services performed for the county in compromising judgments and old bonds which the county owes? (Kentucky Constitution, sections 161 and 235; Kentucky Statutes, sections 126 and 127; Jefferson Co. v. Waters, 70 S. W., 40; McNew v. Commonwealth, 93 S. W., 1047.)
    3. Has the fiscal court the right to defray the expenses of funding its old bonded indebtedness out of its general funds or delinquent taxes, or shall such expenses be met as provided for in section 1852, Kentucky Statutes? (Kentucky Statutes, section 1852; Kentucky Constitution, section 180; Board'of Education v. Board of Trustees, 68 S. W., 10.)
    BELCHER & SPARKS for appellee.
    POINTS AND CITATION OP AUTHORITIES.
    1. Duties performed by app-ellee as set out inthe petition comes within his duties as county attorney under the law. (Sections 126 and 127 of the Kentucky Statutes.)-
    2. Did the fiscal court h-ave the power to appoint the county attorney to settle with the sheriff. (Section 4146 of the Ken-tuck/ Statutes.)
    3. Did the fiscal court have power to employ any person to perform the services performed by appellee? (Section 1852, 4146, Kentucky Statutes; Mercer Co. v. Pearson, 71 S. W., 639; Garrard Co. v. McKee, 11 Bush, 234.)
    4. Was there any inhibition in the law whereby the fiscal court was prevented from contracting with the appellee. (Shepard v. Easterling (Neb.) 86 N. W., 941; Burroughs v. Board, 29 Kas*-, 196; McBride v. City of Grand Rapids, 10 N. W., 355 (Mich.); Detroit v. Redfield, 19 Mich., 376; Grass v. City of Trenton, 24 N. J. Law, 764; Leavenworth Com. v. Brewer, 9 Kas., 317; Herrington v. Santa Clara Co. 44 Cal., 496; Board of Education v. Moore, 71 S. W., 621; Jefferson 'Co. v. Waters, 70 S. W., 40; Morgantown Deposit Bank v. Johnson, 56 S. W., 825.)
    5. Powers of the fiscal court. (Section 1834, Kentucky Statutes; Mercer Co. v. Pearson, 71 S. W., 639; Greenleaf, Judge v. Wood®, Mayor, 96 S. W., 458.)
   Opinion op the Court by

Wm. Rogers Clay, Commissioner

Affirming.

In this action T. J. Slayton, suing for his own use and for the benefit of all other taxpayers of Muhlenberg county, seeks to recover the sum of $500, which was allowed by the fiscal court of Muhlenberg county to J. L. Rogers, county attorney, for services performed under an appointment by the fiscal court to act as commissioner in the settlement and compromise of the bonded indebtedness of said county; also for the sum of $375, composed of several sums allowed to appellee J. L. Rogers while he was county attorney of Muhlenberg county for services as commissioner appointed by the fiscal court to settle with the sheriff of the county for the years 1899, 1900, 1901, 1902, and 1904. The petition is in two paragraphs; the first setting out the sum allowed appellee Rogers for services as commissioner in the settlement; of the bonded indebtedness, and the second embracing the items allowed him for services as commissioner in settling with the sheriff of Muhlenberg county. Appellee filed a demurrer to each- paragraph of the petition. The demurrer as to the first paragraph was overruled, and as to the second sustained. Appellee thereupon filed an answer and an amended answer to the first paragraph, alleging that his services as commissioner to settle the bonded indebtedness were performed under appointment by the fiscal court, and in the federal court and in courts, outside of the State of Kentucky. Appellant thereupon filed a demurrer to appellee Rogers’ amended' answer, which was overruled. Appellant declining to plead further, his petition was dismissed, and an appeal granted to this court.

Besides other sections of the statutes which relate to the opening and dosing of roads, and the granting and refusing of licenses, and which it will not be necessary to consider, the duties of the county attorney are embraced in sections 126, 127, Ky. St. 1903. Section 126 is as follows: “Each county attorney shall attend all county and fiscal courts held in his county, and conduct all cases and business in said court touching the rights or interests of the county, and oppose the allowance of all claims not legally pre^ sented or unjust, and give the court and the several county officers legal advice concerning any county business within the jurisdiction of any of them.” This section provides merely that the county, attorney shall transact the county’s business in the county and fiscal courts of his own county, and he shall give county officers legal advice - concerning any of the county’s business within the jurisdiction of any of them. It will be observed that this section does not make it the duty of the county attorney to advise said county officers or court except it be county business and within their jurisdiction. Section 127 is a.s follows: “He shall attend to the prosecution of all cases in his county in which the Commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend, and conduct actions, motions and proceedings of every description, before any of the courts of this Commonwealth in which the county is interested, and shall in no instance take a fee or act as counsel in any case in opposition to' the interests of the county. He shall also attend the circuit court held in his county, and aid the Commonwealth attorney in all prosecutions therein, and in the absence of an acting Commonwealth’s attorney, he shall attend,to all Commonwealth’s business is said: courts.” This is the broadest clause covering county attorneys’ duties. In construing sections 126 and 127, this court has gone to the extent of holding that, even without direction by the fiscal court, the county attorney has the authority to prosecute appeals to this court; but it has never been, nor could it be, held that these sections require the county attorney to perform services in a federal court, or in courts outside of the State of Kentucky. The language, “courts of-this Commonwealth,” can mean only such courts as are organized under the Constitution and laws of the State of Kentucky. Neither the federal courts nor the courts of other states, then, are courts of this Commonwealth. Under the most liberal construction of the above sections of the statute, it cannot be said that the law imposes upon the county attorney the duty of representing the county anywhere else except in the courts of the Commonwealth of Kentucky. Nor is the duty of settling with the sheriff one imposed by law upon the county attorney. Section 4146, Ky. St. 1903, is in part as follows: “Each sheriff shall, when required by the fiscal court, settle his accounts of county or district taxes; and at the regular October term of each year the fiscal court shall appoint some competent person to settle the accounts of the sheriff of money due the county or district.”

It is the contention of appellant, not that the duty of settling with the sheriff is imposed upon the county attorney, but that it was the evident purpose of the Legislature that the county attorney should not be appointed for that purpose. The reason advanced is that the county attorney is required by la,w to file exceptions to the settlements of sheriffs, and that this duty disqualifies him from acting as commissioner. As is well argued by counsel for appellee, if the county attorney be disqualified for this reason, then the sheriff would also be disqualified for the same reason; for the law provides: “Exceptions may be filed by either the sheriff or the county attorney. ’ ’ The question before us, however, is not one of policy, but of law. So far as the question of policy is concerned, the Legislature is the acts of 1906 (Acts 1906, p. 158, c. 22, section 18), has provided that the commissioner appointed to settle with the sheriff shall be some other person than the Commonwealth or county attorney. But, even if the question in this case were considered from the standpoint of policy alone, we are unable to say that the knowledge and-information gained by the county attorney in going-over the sheriff’s accounts and making settlements with him would not better prepare him to determine whether or not exceptions should be filed to the settlement. As said before, however, the only question before, us is one of law, i. e., was the county attorney, at the time of the1 services rendered in this action, disqualified by the Constitution or laws of this State from accepting the appointment by the fiscal court to settle with the sheriff? The statute provides for the appointment of a competent person. Competency is the only qualification prescribed. Nowhere in the Constitution or the statutes is there any provision disqualifying the county attorney from accepting the appointment. We therefore conclude that the fiscal court had the.power to appoint appellee Rogers as commissioner to make the settlements in question.

We think this case involves a determination of the following questions: (1) Did the fiscal court have the power to employ any person'to render the services performed by appellee? (2) Was there any inhibition in the law whereby the fiscal court was prevented from contracting with appellee? (3) Did the payments to appellee for the services rendered constitute an increase of compensation as prohibited by section 161 of the Constitution?

First. As was said before, express power is given by section 4146 to employ a competent person to settle with the sheriff. The fiscal court is authorized to fund its indebtedness: and this power carries with it the power to employ such agents and attorneys as may be necessary for that purpose. Garrard County Court v. McKee, 11 Bush, 234; Mercer County v. Pearson, 71 S. W. 639, 24 Ky. Law Rep. 1368; Ky. St. 1903, section 1852.

Second. The statutes prohibit any member of the fiscal court from being interested, directly or indirectly, in any contract with the county. The sheriff in- certain instances- is prohibited from buying county claims. We have been- unable to find any statute prohibiting the county attorney from contracting with the county. Sec. 127, Ky. St. 1903, provides that: “* * * And shall in no- instance take a fee or act a.s counsel in any case in opposition to the interests of the county.” Thus it will be seen that he is disqualified from acting in opposition to the interests of the county. There being no express provision of the statutes, nor any statute from which it can be reasonably implied that "the Legislature intended' that the county attorneys should not have the power to contract with the fiscal court, we are unable to hold that they have not such power. Furthermore, we are unable to- see any good reason why, in a case like the one before us, the fiscal court should not employ the county attorney. By reason of Ms position, he is better acquainted with the affairs of the county, the condition of its bonded indebtedness, the legality or the illegality of the proceedings, and is thus better prepared to represent the county in the federal courts or in courts outside of the State of Kentucky than any one else. The people having selected him to represent their interests and the interests of the county in the courts of this Commonwealth, we do not see why the fiscal court should be prohibited from employing him for the transaction of important business not connected with' his official duties. Indeed, the courts of other states have recognized the right of the county attorney to contract with the county, and receive compensation for services performed for the county outside of his official duties. Shepard v. Easterling, 61 Neb. 882, 86 N. W. 941; Burroughs v. Board, 29 Kan. 196; Herrington v. Santa Clara County, 44 Cal. 496.

Third. Did the payments to appellee for the services rendered constitute an increase of compensation as prohibited by section 161 of the Constitution? It will be observed that the facts of this case are not such as to bring it within the rules announced in Morgantown Deposit Bank v. Johnson, 108 Ky. 507, 22 Ky. Law Rep 118, 56 S. W. 825; Jefferson County v. Waters, 114 Ky. 48, 23 Ky. Law Rep. 669, 70 S. W. 40; Board of Education v. Moore, 114 Ky. 640, 71 S. W. 621. In the case of Morgantown Deposit Bank v. Johnson, supra, the county clerk claimed compensation for services rendered in recording the school census report. This duty had been placed upon the county clerk by the Legislature. It was the county clerk’s duty to perform these services under the law. Thus an attempt was made to compensate him for a part of his official duty, and this court held that that could not be done. In Jefferson County v. Waters, supra. an attempt was made by the fiscal court to pay the oounty treasurer additional compensation for services, which, under the law, it was thought were not required of him, but which it was afterwards ascertained were required as a part of his duties. In this case the court said: “Section 161 of the Constitution provides: ‘The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment or during his term of office.’ We have held that this provision prevented payment to the circuit court clerks of a fee for services in felony cases, because that would increase his compensation. Commonwealth v. Carter (Ky.) 21 Ky. Law Rep. 1509, 55 S. W. 701. We have also held that the county could not pay the county court clerk for copying the census reports of school children. Bank v. Johnson, 108 Ky. 507, 56 S. W. 825, 22 Ky. Law Rep. 118. The reason in the two cases, supra, is the same — that it would be an increase in the compensation of the officer after his election. But here it is said that, when the salary was fixed, the whole service that appellee, as treasurer, was required to perform, was not considered, because it was not in fact known. This may be true, yet all must concede that such was, in fact, the duty of the county treasurer. He was obliged to receive and account for all moneys due and payable to the county. To add an additional sum of $1,000 per annum would be to change his compensation.” In the caserof Board of Education v. Moore, supra, M. Kaufman was treasurer of the city of Lexington. By section 3225,- Ky. St. 1903, the treasurer of the city is made treasurer of the board of education. Prior to hia election, Kaufman’s salary was fixed by the general council. After going into office, the board of education, attempted to pay Mm extra compensation for Ms services as its treasurer. TMs court took the view that the salary paid him by the city was for Ms services as treasurer both of the city and the board of education, and that the payment of additional salary by the board of education constituted an increase of compensation during his term of office. It will be observed that the case at bar is not a case where additional compensation is allowed for services imposed by law; nor is it even a case where additional duties have been imposed by law. It is a case of special employment by the fiscal court to perform services outside of and independent of appellee’s official duties. We are of opinion, therefore, that the facts of this ease bring it within the rule that where an officer or employe performs extra services outside of official duties and with which they have no affinity or connection, and which do not interfere with his official duties, he is entitled to compensation. 2 Abbot on Municipal Corporations, section 686a.

Counsel for appellant call our attention to the fact that the order- appropriating to • appellee the sum of $500 .directs payment out of delinquent taxes, and contend that, as this money has been appropriated for other purposes, its appropriation to appellee was illegal and void. It does not appear, however, in the pleadings in this case that the money paid to appellee Rogers was appropriated to other purposes or that the purposes for which it was appropriated had not been satisfied. Upon this state of the record we are unable to say that the appropriation was invalid for the reason assigned by counsel for appellant.

Being of the opinion that the services for which appellee Rogers was paid were not embraced in Ms official duties, and were performed under an appointment which, the fiscal court had the power to make, the judgment of the trial court is affirmed.  