no possible interest or concern. If no liability attaches for an injury resulting from negligence of employees of the city engaged in this governmental work, then it is immaterial by what means they are moved, for liability cannot attach in any event. It is true that possibly it would have been safer and better for the city to have required this wagon to be removed by hitching a horse or team of horses to it, rather than by attaching it to the rear of this sprinkler; but the city is not required to use the safest or best or any particular means in the conduct of its governmental business. The manner in which they shall be moved from one part of the city to another is, and must of necessity, be left to the discretion of the city authorities, and no ground of complaint is afforded because one method of moving these wagons is adopted or used in preference to another.

We are clearly of opinion that, under the facts stated, about which there is no contrariety of opinion, plaintiff was not entitled to recover, and the motion for a peremtory instruction should have been sustained. Judgment reversed and cause remanded for further proceedings consistent herewith.

Anderson v. Commonwealth.

(Decided February 23, 1911.)

Appeal from Boyd Circuit Court.

Local Option-Violation-Sufficiency of Evidence. In an action for a violation of the local option law, in which the defendant was found guilty. Held, there being no objection to the testimony nor to the instructions and there is some evidence of guilt, the finding of the jury will not be disturbed. !

ZERFOSS & WEAKLEY for appellant.

JAS BREATHITT, Attorney General, and TOM B. MCGREGOR, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE NUNN-Affirming.

This prosecution was for the violation of the local option law which was in force in Ashland, Ky. There was no objection before or during the trial to the indictment, by demurrer or otherwise, nor were there any objections made to the testimony, except to the introduction of the United States Government license which were held by

appellant; nor was there any objection to the instructions given by the court. Under this state of the record, it is unnecessary for the court to consider and discuss the matters raised in appellant's brief. There was some evidence of guilt and we will not disturb the finding of the jury.

For these reasons the judgment of the lower court is affirmed.

O'Connor v. Weissinger, Judge, et al.

(Decided February 24, 1911.)

Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).

1. Roads and Passways-Regulation by Fiscal Courts-Power Conferred by statute.-Under section 4748b Kentucky Statutes, providing that "all turnpikes and gravel roads *** shall become

2.

3.

public roads and maintained by the fiscal courts, which may provide for keeping them up as directed under the general road law, it may adopt other rules for their repair and management." Held, this section clearly confers the power exercised by the fiscal court in the management and maintenance of the roads thereof.

Statutory Provisions-Amendments-Since the cases of Pulaski County v. Sears, 117 Ky., 249, and Boyd County v. Arthur, 118 Ky., 932, and Vaughn v. Hulett, 119 Ky., 380, were decided, the legislature so amended section 1845, Kentucky Statutes, upon which they were rested, as to authorize members of the fiscal court to serve upon committees in directing road work and provided compensation for such committee work as might thus be performed by them.

Commissioners-Letting out Bids for Work.-Under section 1889, Kentucky Statutes, providing that "the fiscal court shall appoint three commissioners in each magisterial district who shall let out the work in their districts to the lowest and best bidder with the privilege of refusing all bids." Held, that when considered in connection with the remainder of the act of which it is a part, relates to the disposition of surplus funds in certain counties which could not be expended under the direction of the fiscal courts.

O'CONNOR & O'CONNOR and JOS. E. CONKLING for appellant. A SCOTT BULLITT, JOHN L. SULLIVAN and ROBERT L. PAGE for appellees.

OPINION OF THE COURT BY JUDGE SETTLE-Affirming.

This action in equity was instituted by appellant, a taxpayer of Jefferson County, against the county judge, nscal court, of Jenerson County, and magistrates composing same, to enjoin that court from awarding contracts for work done upon the turnpikes and roads of the county, and its members from acting as a committee or committees in directing and controlling such work.

Appellees by answer justified the action complained of, and asserted that in so maintaining the turnpikes and roads of the county, the court acted in accordance with certain plans adopted under authority conferred by section 4748b, Kentucky Statutes.

Appellant filed a demurrer to the answer which the circuit court overruled; he refused to plead further and judgment was entered dismissing the action. From the judgment manifesting these rulings this appeal is prosecuted.

Section 4748b under which the fiscal court claims the power to maintain the turnpikes and roads of the county by the rules referred to in the answer, provides:

"All turnpike and gravel roads thus acquired or constructed, shall become public roads and shall be maintained and kept in repair by and through the provisions of the fiscal court. Said court may provide for keeping them up as is directed and permitted under the general road law, or it may adopt other rules for the maintenance, repair and management of the same.

This section clearly confers the power exercised by the fiscal court of Jefferson County in the management and maintenance of the roads thereof.

In the case of Fleming County Fiscal Court v. Howe, County Judge, 121 Ky. 478, we held that the fiscal court of Fleming County under the power conferred by the section, supra, could maintain the turnpikes and other roads of the county under rules adopted for that purpose as provided by the statute in respect to turnpikes; and also according to the statutes regarding the maintenance of other public roads: but that the fiscal court could appoint only one supervisor to take control of the turnpikes and roads of the county as section 4313 Kentucky Statutes gave that court the right, if it so elected, to appoint but one supervisor of roads for the county.

It is true that in Pulaski County v. Sears, 117 Ky., 249, we decided that an order of the fiscal court investing the county judge with the general supervision of the

roads of the county and making the magistrate in each magisterial district director of the work therein, was void; and in Boyd County v. Arthur, 118 Ky. 932, and Vaughn v. Hulett, 119 Ky., 280, we also held that the statutes with reference to the control of the roads of a county by the fiscal court forbid the members of that court from acting as supervisors of county roads, as such action would make them interested in contracts for work that might be done upon the roads under their supervision. But since these cases were decided the legislature so amended section 1845 Kentucky Statutes upon which they were rested, as to authorize members of the fiscal court to serve upon committees in directing road work and provided compensation for such committee work as might thus be performed by them. Thomas v. O'Brien, 138 Ky., 770, in construing that section of the statute as amended, we held that members of the fiscal court, excepting the county judge, can act as a committee, or committees, in directing and supervising work upon the turnpikes and roads of the counties, for which they might be compensated at the rate of three dollars a day.

In

It appears from the averments of the petition that the fiscal court of Jefferson County by the plans adopted in pursuance of the power conferred by section 4748b, supra, divided the county of Jefferson into road districts and appointed a member of the fiscal court as director and inspector of road work in each of these districts; the work being awarded by contracts between the fiscal court and the contractors. In thus providing for the maintenance of the turnpikes and roads of the county, the fiscal court obviously acted within the powers conferred by sections 4748b and 1845, Kentucky Statutes.

It is, however, contended by appellant that the work of maintaining the roads in the districts of the county should have been entrusted by the fiscal court to three commissioners as provided by section 1889 Kentucky Statutes which declares that:

"The fiscal court shall appoint three commissioners in each magisterial district, who shall let out the work in their districts to the lowest and best bidder, with the privilege of refusing all bids." This contention of appellant cannot be sustained as it ignores the meaning and object of the section, supra, which, when considered in connection with the remainder of the act of which it is Vol. 142-15

a part, relates to the disposition of surplus funds in certain counties which could not be expended under the direction of the fiscal courts.

It follows from what we have said that the circuit court committed no error in overruling the denurrer to the answer, or in dismissing the action. The Judgment is affirmed.

James v. Holdam.

(Decided February 24, 1911.)

Appeal from Lincoln Circuit Court.

Where a deed as originally written, had in it the name of J. W. James, as grantee, but his name was erased, and the name of his wife, M. B. James, was written in the deed when he delivered it to the clerk for record, and he declared that the land belonged to his wife, the presumption is that the deed was altered before its delivery.

GEO. F. STONE, P. M. McROBERTS and JAMES S. PIRTLE frappellant.

EDELEN & DAVIS for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSONReversing.

J. W. James died intestate on February 25, 1906, without issue, and this suit was brought against his widow, Margaret B. James by his sisters and the children of a deceased brother, as his heirs at law, who alleged in their petition that on June 28, 1901, Catherine McAllister sold and conveyed to J. W. James a tract of land in Lincoln county, and that after she had delivered the deed to him, some person without right or authority fraudulently erased the name of J. W. James from the deed and substituted therefor the name of M. B. James; that James died the owner of the land. They prayed that the erasure in the deed be held void, and that they be adjudged the owners of the land, which was then in the possession of Margaret B. James. An answer was filed by Margaret B. James in which the allegations of the petition as to the mutilation of the deed were denied, and it was alleged that she was the owner of the land. Proof was taken and on final hearing, the circuit court entered a judgment in favor of the plaintiffs as prayed. Mrs. James appeals.