Appeal from Circuit Court, Clay County
Delph Vs. Commonwealth
ACTION: Affirmed
Court of Appeals of Kentucky
Nov. 19, 1929

Petition by Alex Delph against Clay County and its Fiscal Court. Petition dismissed, and petitioner appeals. Affirmed.

In his petition against Clay county and its fiscal court, the appellant, Alex Delph, averred that he and his wife were aged and in feeble health; that Edgar Delph was born and had lived all his life in Clay county, was more than 30 years of age, weighed about 160 pounds, was helpless, is a confirmed invalid, and needs and requires more attention and care than a 3 months old infant; that he has never owned any property of any character, and "was legally adjudged a pauper of this county prior to each and all the time complained of herein, and which judgment is still in full force," etc.

The petition further charges that it was and is the duty of the county and its fiscal court to care for and provide for Edgar Delph and other paupers of the county, and that Delph had been cared for by plaintiff for "quite a while" under a contract with the fiscal court. He then stated that at its October, 1924, term the fiscal court "failed and refused to enter into further contract" with him, and he had thereupon surrendered Delph to the fiscal court and ""directed them to take him off the hands of plaintiff," and had since at sundry times entreated that body to do so, but it had refused. The plaintiff had kept and cared for Edgar Delph as a pauper since October, 1924, and on October 3, 1926, he presented a bill to the fiscal court for that service for $730, being at the rate of $1 a day, alleged to be reasonable. The court by an order disallowed the claim, and this petition sought recovery on that account. A demurrer to the petition was sustained, and, upon plaintiff declining to plead further, the petition was dismissed, and this appeal prosecuted.

While it would appear from the allegations of the petition that it was the duty of the county to care for the pauper referred to (it not being shown he is an idiot), as to how that should have been done was a matter resting in the discretion of the fiscal court. It cannot be required to pay plaintiff for his services, however meritorious his claim for compensation may be as a moral obligation. He had a legal remedy for relief of his charge when the court refused to contract with him, but he did not invoke it.

Judgment affirmed.


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