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Morrison v. Morrison's Assignee.

in trust for his wife, subject to the claim of the insurance company for money advanced to pay off the vendor's lien. We are therefore of the opinion that this property could not be subjected to the claims of creditors of J. A. Morrison for which appellant was in no wise bound.

The deed of Mrs. P. A. Miller, however, stands upon a different footing. The act of March 15, 1894, which is article 3, c. 66 of the Kentucky Statutes, abolished the distinction which previously existed' between the separate and general estate of married women, and in effect made all of her property separate estate, and gave lier the right to pledge the same for the debt, default, or misdoing of another, including her busband, if such estate shall have been set apart for that purpose by deed of mortgage or other conveyance. See section 2127 of the Kentucky Statutes. This provision of the statutes was considered by this court in Miller v. Sanders, 98 Ky., 5:38 (17 R., 1114) (33 S. W., 621), and it was there held that the wife could kind her real estate by mortgage made to secure the debt of her hushand; and this case has been subsequently followed in Lane 1. Bank (14 R., 873) (21 S. W., 756, Tipton v. Bank (17 R., 960) 33 S. W., 205, and in New Farmers' Bank's Trustee v. Blythe, 21 Ky, Law Rep., 1033. It fol. low's that the mortgage made to Mrs. P. A. Miller is an enforceable obligation, and the real estate in controversy is properly subjected to her claim.

But, for reasons indicated, in so far as the judgment subjected it to the payment of the claim of the general creditors of her lusband it is reversed, and cause remanded for proceedings consistent herewith.

Response by Judge JIobson to petition for rehearing:

It is earnestly maintained in the petition for rehearing that the act of 1891, not being retrospective, does not

Morrison v. Morrison's Assignee.

change the character of the estate of Mrs. Morrison in tbe land, and that, therefore, the mortgage executed after that act took effect is of no more validity than if it had been given before the act was passed. The conclusion does not follow from the premises. Mrs. Morrison's estate in the J:and remained the same after the passage of the act as it was before. The only effect of the act was to enlarge her powers over it. The disability of coverture is the creation of the law. What the Legislature has thus creatrd, it may abolish. In the past half century, act after act has been passed enlarging the rights of married women. If the act of 1894 had entirely abolished the disability of Coverture, Mrs. Morrison might have disposed of this estate just as though a single woman. The Legislature, however, did not so provide, but empowered her to mortgage it with the concurrence of her husband. This was simply an enlargement of her powers under the former act, or a partial removal of her disabilities under that act, and was no more unconstitutional as to existing estates than that act was as to estates created under the statutes in force before it was passel. Under the provisions of the Revised Statutes, married women were substantially disabled from disposing of their separate estates. I'nder the General Statutes these disabilities were in part removed, and under the act of 1894 they are still further removed. None of these changes affected the estates of married women vested in them under the law in force when they were created. The estate of the fame in the property remained as before. Her disability to dispose of the property was not a part of the estate, but was personal. It would have ceased had she become discovert, and might be removed at any time, in whole or in part, as the Legislature saw fit.

Petition overruled.

Bath County, ex rel. Brown v. Daugherty, Commissioner.

CASE 67-ACTION OF BATH COUNTY, &C. AGAINST JOHN A. DAUGH

ERTY, COMMISSIONER, FOR A MANDAMUS.—MAY 28.

113 518 e115 33

Bath County ex. rel. Brown v. Daugherty

Comm’r.

APPEAL FROM BATH CIRCUIT COURT.

JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS.

AFFIRMED.

COUNTY TREASURER- ELECTION BY FISCAL COURT-POWER OF COUNTY

JUDGE AS MEMBER OF FISCAL COURT-QUORUM.

Held: 1. Under Kentucky Statutes, section 929, providing for the

appointment of a county treasurer by a majority of the members of the fiscal court, 'and that, in case of a vacancy in said office, it shall be the duty of the county judge to call the members of the fiscal court together and hold a special term to fill the vacancy, and that, in case of a failure or refusal of the county judge “to perform any of the duties herein required of him

any three of the members of said court may convene the court, elect one of their body to preside, and appoint a treasurer in the manner herein provided,” three members of the court have no power to convene the court to appoint a treasurer, until the court has first determined that it is neces

y to have a county treasurer; it being provided by Kentucky Statutes, section 938, that “whenever the fiscal court of any county in this Commonwealth, in its discretion, shall deem it necessary to have a county treasurer to manage the financial affairs of the county, said court shall proceed to appoint a county treasurer for said county in the manner provided for in

this act." 2. Under Const. section 144, providing that the fiscal court shall

"consist of the judge of the county court and the justices of the peace, in which court the judge of the county court shall preside, if present,” and that “a majority of the members of said court shall constitute a quorum for the transaction of business,” the judge of the county court is a member of the fiscal court, and not merely a presiding officer, and therefore, where there are five justices of the peace, the fiscal court consists of six members, and three members do not constitute a quorum for the transaction of business, even though the Legislature may have attempted to limit the duty of the judge of the county court to that of presiding.

Bath County, ex rel. Brown v. Daugherty, Commissioner:

W. S. GUDGELL, R. GUDGELL & SON AND C. G. MCALLISTER,

FOR APPELLANT.

The question in this case is whether or not three justices of the peace can call a special term of the fiscal court, and elect a county treasurer, where the court is composed of five justices and the county judge.,

Our contention is, that a majority of the justices of the peace of a county can elect a county treasurer or transact any other business of the county; that the county judge and twe justices would not be a quorum, but that three justices of the peace, where there are only five in the county, constitute a quorum without the county judge.

In other words, we contend that the county judge should not be counted to make a quorum, because he is not a voting member of the court.

AUTHORITIES CITED.

V.

Act February 24, 1893, Kentucky Statutes, secs. 929, 183334-36-37-38-43-42-3502, 3617; Hoke v. Fields, 10 Bush,, 145; Standford v. Wingate, 2 Duval, 444; McArthur v. Nelson, 81 Ky., 69; Constitution, sec. 144; Gen. Statutes, B. & F., Article 12, sec. 1, p. 385; Somerset v. Smith, 20 R., 1488; State Adams, 2 Stew. Ala., 231; Bouvier Law Dic. on Presiding Officers; Lawrence v: Ingersol, 6 L. R. A., 308 and note, State, &c. v. Crow, &c., 4 L. R. A., 551; Hornung v. State, 2 L. R. A., 510; Hewett, Auditor v. Craig, 86 Ky., 28; Telman v. Otter, 14 R., 586.

C. W. GOODPASTER AND ALEX. CONNER, FOR APPELLEE.

POINTS AND CITATIONS.

1

1. Three justices did not have the power to call a special term of the fiscal court in 1901. Section 1837, Kentucky Statutes.

2. It is discretionary with the fiscal court whether there shal!, or shall not be a county treasurer. Section 938. Kentucky Statutes.

3. Unless necessity so requires and the county judge is un. able to act all the justices can not call a special term of the fiscal court. Section 1837, Kentucky Statutes.

4. Not less than a majority of the members of the fiscal court shall constitute a quorum for the transaction of business. Sec. 144 of Constitution and section 1834, Kentucky Statutes.

5. The votes of a majority of all the members of the fiscal

Bath County, ex rel. Brown v. Daugherty, Commissioner.

court are necessary to appoint a treasurer. Sec. 929, Kentucky Statutes.

.6. The fiscal court is composed of the county judge and justices of the peace. Section 144 of Constitution, and section 1833, Kentucky Statutes.

OPINION OF

THE COURT

BY JUDGE DURELLE-AFFIRMING.

This proceeding was a petition by Bath county, on the relation of T. H. Brown, and T. H. Brown as treasurer of Bath county, against John A. Daugherty, commissioner and receiver of the Bath county fiscal court, for a mandamus to compel him to make a settlement of the matters in his hands with the county treasurer, and to turn over to the latter all money, funds, books, papers, etc., belonging to the said office of county treasurer. A demurrer to the petition was sustained, the plaintiffs declined to plead further, and the petition was dismissed.

From the petition and the exhibits filed therewith, which are copies from the record of the fiscal court, it appears that Daugherty in January, 1901, was appointed commissioner and receiver of the Bath fiscal court, executed bond, settled with the sheriff, and received from him several thousand dollars; that there are five justices of the peace in Bath county; that in November, 1901, three of the justices met, and, having demanded of Daugherty, who is judge of the Bath county court, the calling of a session of the fiscal court of Bath county for the election of a county treasurer, and he having refused to do so, they entered an order for a term of court to be held on the 3d of December for the purpose of electing such treasurer. On the 3d of December they again met, and ordered attachments for the two absent justices, and adjourned to the 4th of December. On December 4th one of the attachments was executed by arresting Justice Stephens, who sued out a writ of habeas corpus before Daugherty, the county judge,

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