Gay v. Haggard

118 S.W. 299, 133 Ky. 425, 1909 Ky. LEXIS 188

• Court: Court of Appeals of Kentucky
• Decided: April 21, 1909
• Status: Published

Opinion

Opinion of the Court by

Judge O’Rear

Reversing.

Appellant, a citizen and taxpayer of Clark countv, brought this suit on his own behalf, and the behalf of all other taxpayers of Clark connty, against appellee Haggard, as supervisor of roads of Clark county, for mandamus, requiring the appellee to comply with the statute concerning the letting of work on the public roads of tbe county at competitive bidding, instead of private contract. It is charged that the latter course was being pursued as to all tbe roads of Clark county. A general demurrer was sustained to tbe petition, and tbe action was dismissed. We are advised in briefs of counsel that the learned circuit judge based bis judgment upon a construction of the statute, which will presently be adverted to; but appellee here contends that there are certain technical defects in the- petition which alone are sufficient to sustain the lower court’s ruling. He also contends that the construction of the' statute, which seems to have been the real purpose of the suit, as applied by the court, is correct. The petition does not expressly ask for the issuance of the writ of mandamus, although after stating the alleged dereliction of the defendant, a public officer, it asks that he be compelled to comply with the law, and be required to advertise the work on the roads to be let, and to let it, at public competitive bidding.

While at the common law player for process was the approved practice, under our Code that is not necessary. Upon the allegation of sufficient facts, process which is suitable to the relief demanded may be issued by the clerk where.the law allows him to issue it, or may be awarded by the court. There was not a notice by the plaintiff of the motion for mandamus in this ease. Appellee insists that, until there was such notice, the action of the trial court in ruling upon the demurrer to the petition was not a final order, although the petition was dismissed by the judgment; that the Code contemplates in this proceeding that the granting or refusing the writ of mandamus is the final order of the case; and that neither can be done until there is a motion for the mandamus. Under our Code of Practice the writ of mandamus is a statutory -writ, and is granted as a matter of right in a proper case to a party aggrieved. Maddox v. Graham & Knox, 2 Metc. 56. The trial is summary. Section 475, Civ. Code Prac. By Section 474, Civ. Code Prac., it is provided that, except in writs used by the court in enforcing its judgments, the writ of mandamus shall be obtained by motion as provided in title 10, c. 5, Code (applying to the trial of motions upon notice), and that “the applicant shall file ia petition wherein he shall state the cause and ground of his application before giving-notice of his motion; to which the party against whom the mandamus is sought shall file a demurrer or answer, at or before the time fixed for making the motion.”- Ordinarily a suit is begun by filing the petition in the clerk’s -office, and causing a summons to be issued upon it, returnable to the next term or within so many days after service. But in this proceeding the summons is supplied by the notice! The petition can be filed at any time before the notice, and the court may after the 10 days provided in the notice, -or after the appearance of the defendant, summarily try the motion. When the defendant appeared and filed his demurrer, the office of the notice was dispensed with. It was no longer necessary to notify him to do what he had already- done, or to apprise him of a purpose which he was then combating in court. Before the motion for the writ was made, the court held the petition to be insufficient to support such motion, and dismissed the plaintiff from court. That was an effectual denial of the writ, and is a final order in the case, from which an appeal lies.

The petition does not allege that appellant will sustain special damage, -or that anybody will sustain damage by reason of the alleged conduct or failure of the defendant to comply with the statute as to letting the work on the roads. There is no express provision of the statute in this State making it the duty of any public officer to prosecute actions for mandamus against derelict road supervisors. The duties of the latter officer appertain to a subject that directly concerns the public at large — the maintenance of the public roads of the counties. It affects them not -only in their convenience, but as taxpayers. The rule of practice concerning who may prosecute the suit is well stated in 26 Cyc. 401, thus: “The true distinction seems to be that, where the right or duty in question affects the State in its sovereign capacity as distinguished from the people at large, the proceedings must be instituted by the proper public officer, but if the general public as distinguished from the State in its sovereign capacity is affected, any member of the State may sue out the writ.” Such was the practice applied and approved in the case of Leslie County v. Wooten, 115 Ky. 850, 75 S. W. 208, 25 R. 217. The principle in another aspect is more .frequently encountered in cases where one citizen and taxpayer on behalf of others of the class brings an action to restrain the levy of a tax, or other excessive ministerial act. The cases are numerous and' familiar. The right of a single taxpayer to maintain such an action is no longer in doubt. It would seem to follow that where a ministerial act was required -by law to be done, which if done would inure to the benefit of tEe public, the tardy official might be set in motion and compelled to act 'by a suit by one of the public affected, suing on his own and on the behalf of the others. Nor is it necessary that the plaintiff should show a special interest to be affected by the act. The reason it is public is because all the public are equally affected by it, at least theoretically; and, if no one of the public could maintain the suit, none less than ail could, which would be practically a denial of the right to sue, for it is scarcely possible that all the citizens of a county or other territory could be got to act together in any matter. Nor do we think it necessary to allege or to show that the public will sustain damage if the act is not done. By the enactment of a statute on behalf of the public creating an office, and providing an incumbent to discharge certain public functions, the Legislature has declared that the act is one beneficial to the public. That phase of the question is not issuable. The public pay the officer for his services. They pay for the work done upon the roads. It will not lie in the official’s mouth to say that his performance of a statutory duty is not a matter of concern to the public, or that his neglect of it will not entail any damage upon the public. Nor can he ask that the public be relegated to criminal prosecutions for redress. The public needs roads, not fines. The fines are only one method of enforcing the discharge of official duty to the public; but the availability of that means will not prevent the employment of another that will get what the public are entitled to, and what was the purpose of • the legislation in their behalf in that matter.

The petition in this case does not allege that Clark county works its road by taxation. It is argued by appellee that, unless the roads are worked by taxation, there is no authority for the supervisor’s letting the work at competitive bidding. Our statutes contemplate several different ways of maintaining our highways. One is the tollgate system, either by a private corporation or by the counties. Another is by the hands allotted to do the work, when overseers are appointed to superintendent the work. Another is by taxation or allotment of hands or both. In the last instances a supervisor may be appointed who, under the fiscal court, has charge of the work. There is no provision for the appointment of a supervisor of roads unless the county has elected to keep up its roads in whole or in part by taxation. Section 4313, Ky. St. So, when the petition alleges that the defendant is the supervisor of roads of the county, appointed, qualified, and acting, and has let the work on all the roads of the county by private contract, instead of. advertising for bids, we think it is sufficiently charged that the county was working its roads by taxation, as those acts could occur only if that method were being employed.

This brings -ns to the consideration of the statute, the construction of which is involved in this action. It is Section 4315, Ky. St., as amended by the act of 1906 (Acts 1906, p. 431, c. 118), and as amended also by the act of March 24, 1908, p. 107, c. 42. This suit was begun four days after the amendment of March, 1908, and, as there was an emergency clause to the act, it took immediate effect. Appellant was doubtless unaware of that amendment. However, the statute before the amendment and now is not changed so far as the principal feature of this case is concerned. Biefore the last amendment, it was provided: “In counties wherein roads are worked by taxation it shall be the duty of the supervisor at the court house door in his county, on the first Monday in March in each year after twenty days written or printed notice posted at each voting place in the county, to let out to the lowest and best bidder, who shall give bonds with surety, approved by the supervisor, the working and keeping in repair of all the roads of said county,” etc. Under the statute as it now stands, it is provided that the supervisor “shall advertise for fifteen days in succession in some newspaper having general circulation in his county, or by written or printed notices posted up in three or more conspicuous places in each voting place in said county just preceding the regular monthly meeting of the fiscal court in April in each year, that the fiscal court will receive the bids ’to let out to the lowest and best bidder the work of keeping up and repairing the public roads of the county for a specified term of not less than one nor more than four years.” In the statute now, and as it was before the amendment, there is this proviso: “Provided, that for the purposes enumerated the fund raised under this act, and which may be otherwise raised by the levy court, shall be sufficient; and if not sufficient then it is to be used at such places and for such purposes as the supervisor under the general directions of said court may deem proper; and the court in giving such directions, shall have due regard for the public good, and to the wants of the different parts of the county. * * * The supervisor, with the consent of the county judge, may designate certain roads or parts of roads that are not to be let out as hereinbefore required, but which are to be worked and kept in repair either by special contract privately made, or by hands and teams hired by him, or by delinquent taxpayers, or by persons sentenced to labor, or who, by law, may be liable to work out fines imposed by juries or courts. But it shall be the duty of the supervisors to return to the county court, at its September term iu each year, a descriptive list of such roads, which shall be recorded in its order book, and also to report in writing all hands and teams hired, and amounts paid for same, and the length of time and where employed; and also a similar report of the names of the delinquents who work, the places where, and the length of time and names of persons working out fines or sentences on roads. And it shall be the further duty of tbe supervisor to supervise said work, and to employ competent persons to oversee; and he may, if necessary, put balls and chains on convicts to prevent their escape.” The contention is, and it is said such, was the view taken of the statute by the circuit court, that it was competent under this statute for the supervisor, with the concurrence of the county judge, to exempt all the roads of the county from the competitive system, and place the whole matter within the power of the supervisor to let the-work by private contracts, and inasmuch as the petition in this case did not allege that some part or all of the roads of Clark county had not been designated by the, supervisor with the consent of the county judge, to be let out by private contract, that v the petition was defec-. tive. It is charged in the petition that the defendant ás road supervisor “has continually refused, for both the year 1907 and the year 1908, and for all other times, to let out said roads to the lowest and best bidder, or to advertise for bids at all, though he has often been requested so to do by this plaintiff and other citizens during all the said time and has persisted in doing all of said work upon all the turnpikes and roads of the county by contracts privately made,” etc. There is no room left for an exception. “All” excludes exceptions. Appellee construes the act in question as authorizing the supervisor, with the consent of the county judge, to abrogate the entire provision as to competitive bidding. It must be assumed in the present state of the record that the supervisor of the roads has designated all the roads of the county to be let out by private contract; and that the county judge has consented to it. Is that permissible under the statute?

The scheme evolved by the Legislature for maintaining the public roads of the State contemplates putting the matter primarily in the hands of the various fiscal courts of the counties. In addition to this manifest purpose evidenced by nearly every provision of the statutes on the subject, Sec. 4306, Ky. St., reads: “The fiscal court of each county shall have general charge and supervision of the public roads and bridges therein, and shall prescribe necessary rules and regulations for repairing and keeping same in order and for the proper management of roads and bridges in said county under and subject to the provisions of this act. The public roads shall be maintained either by taxation or by hands allotted to work thereon, or both, in the discretion of the fiscal courts of the respective counties as herein provided.” We must take notice that, before the establishment of the fiscal courts, the county courts had a larger authority than they now have in road matters: that then and until within recent years many of the counties of the State had their most important roads in the hands of turnpike companies; that, the old system has given way to that of public ownership, the turnpikes have been bought up by the counties, and the tollgates abolished. Maintaining roads by taxation prior to the abolition of the tollgate system was the exception in this State. Under the existing conditions, there have been a number of changes in the statutes concerning the manner of keeping up the public roads — all in a few years. This indicates that the system is yet in an experimental stage. Inexperience in doging such work by the public authority, and the opportunity for preying upon the public by contractors and others, have combined to make the experiments expensive ones in some localities. The representatives in the Legislature have met here with these experiences and problems fresh in mind. Nearly every session sees some needed change in the road laws to conserve the public welfare. In nearly all of them there is the tendency to place the final responsibility with the elective magistracy, the fiscal courts of the counties. This is particularly manifest in the last amendment, which we are here called upon to consider. There the letting of the work by competitive bidding is adhered to; but it is deemed best to take that feature of responsibility and opportunity for favoritism and its well known evils from the hands of the supervisors, and to lodge the power of making the contracts with the fiscal courts. The county judge sits as a member of the fiscal court. The statutes are careful to place his authority in the particular of contracting concerning county roads subordinate and subject to the fiscal courts. The supervisor has diminished authority. In view of this trend of legislation, of the causes leading up to it, of the well-known opportunity for abuse where competitive bidding for public work is not resorted to, of the fact that in nearly all public works of any magnitude, national, state and municipal, the competitive system has been found by actual experience to be the best for the public and the taxpayers, is it permissible to read this statute so as to render it possible for the very officials designed to have a limited and special power, to enlarge their authority, to oust that of the superior magistracy, and to return to a system discarded by every progressive Commonwealth and mimicipality? In construing a statute so as to arrive at the legislative meaning, not only the abuses intended to be corrected by it may be considered, but no part ought to be so construed as to annul another part, if it can be avoided. Particularly is this true as to allow a proviso to overturn the entire enactment to which it constitutes an exception. If the proviso means that the supervisor and county judge may designate all the roads of the county for private contracting, then all the careful enactments pertaining to public and competitive letting for the work are or may be set at naught. Always the aim and end of statutory construction is to effectuate the legislative purpose. The difficulty of expressing'exact meaning in language so general as to be applicable to so many phases of a question as that which was the subject of this statute is recognized. The language here clearly imports the legislative will that the public roads when worked by money raised by general taxation shall be maintained in the highest state of utility that the money will buy, and the adoption as the most practicable plan of doing it, that of letting the work to the lowest and best bidder, to be ascertained in the manner which has been found most certainly to get the lowest and best bid. That last feature of the statute is its most prominent one next to that of affording good roads. It was recognized that instances would arise in each county where iL would be impracticable to let a particular piece of the work in this manner. It might be too remote from the main work or too insignificant of itself, or be such that the labor of the particular neighborhood could best do it, and do it cheapest. That' class of work, it was seen, ought not to be included in the general work required upon the more important systems of roads, because to do so might involve greater expense and more delays than if done by local labor or special contract. Then, too, it was seen that the delinquent taxes due for roads might in certain work be used advantageously by the county, as well as the labor of prisoners required by judgments of courts to work out tbeir sentences. These matters were, therefore, made exceptions to the general and more comprehensive plan outlined by the statute— not with any purpose of doing away with the general plan, but to execute it as intended, letting the excepted parts form the least important portion of the scheme. The words of the exception, “certain roads or parts of roads, ’ ’ are inconsistent with the idea of so working all the roads. It is more difficult tb define than it is to perceive the limitation of the proviso. It is believed by the court, as it doubtless was by the Legislature, that an attempt to define it more strictly than is done in the section would be to hamper a fair execution of the statute. If there should be a purpose to evade the. aim of the statute, or to stretch it unduly, the good sense of any one concerned in the matter would doubtless serve to set the limitation so as to maintain the integrity of the general plan provided by the statute, and not defeat the fair object of the proviso. It is enough to say here that the proviso does not mean that “certain roads or parts of roads” includes all roads, and does not allow a radical departure from the scheme of public competitive bidding by the statute.

Although the writ can not go to the extent prayed for, in so far as the defendant ought to act, it can go and he will be required to advertise the letting of the work for bids to be submitted to the fiscal court of the county in accordance with the directions of the statute, as amended by the act of March, 1908. It is not suggested, nor do we apprehend- that it is a fact, that appellee was actuated by other than an honest purpos.e in his course, nor that the county judge in consenting to it had other thought than to conserve the public welfare in applying the road funds of the county. Their error was doubtless one of legal construction. And it may be possible that their plan in the particular instance was working better than the one the Legislature provided. But the question is not one of expediency. It is one of law. The question has not yet arisen whether appellee and the county judge have abused their official discretion, but is one of their power to do at all what it is charged they are doing, and of the right of the taxpayers to have the law executed as the Legislature has enacted it.

The judgment is reversed and cause remanded for proceedings consistent herewith.