96 Ky. 407 | Ky. Ct. App. | 1895
delivered the opinion of the court.
These cases involve the same legal questions and will be determined together.
The indictments are for false swearing, and are alike in form save as to the matter alleged to have been sworn to by each appellee. Demurrers thereto were sustained by the lower court and the Commonwealth has appealed.
The charge in each indictment is that the defendant therein “did willfully, falsely and feloniously swear, state and depose before a committee of the board of aldermen of the city of Louisville, said committee having been appointed by the president of the board of aldermen in pursuance of a resolution passed by the general council of the city of Louisville, authorizing the appointment of a committee for the purpose of investigating and reporting upon the charges of corruption against the members of the general council of the city of Louisville; that said committee was organized by the election of E. R. Palmer as chairman, and was composed of five members of the board of alder
“That said Hillenbrand (and Gribbs) did so willfully, falsely and feloniously swear, state and depose as aforesaid, well knowing at the time that each and every one of said statements were false, contrary to the form,” &c.
As explanatory of the allegations of the indictments, the resolution of the general council raising the committee of aldermen, before which the alleged false swearing was done, was read and considered on the trial of the demurrers. The resolution recites, in substance, that, “whereas, a publication in one of the city newspapers was to the effect that members of the board of councilmen had accepted money and bribes for their votes for the election of a candidate for Sealer of Weights and Measures, which had a tendency to impeach the character of said board, it was therefore resolved that a committee of five from the board of aldermen be appointed to investigate the said .charge, and to take testimony on said subject, with authority to send for persons and papers, and make a full investigation as to who and what members, if any, of this board of councilmen had accepted money or bribes, or had agreed to do so for their votes
This resolution was approved and became obligatory or effective on February 28, 1894.
It will be observed that, according to the indictments, the matters to be investigated by the committee of five were “the charges of corruption against the members of the general council of the city of Louisville.”
According to the resolution, the accusation made was, “that members of the board of councilmen had accepted and received money and bribes for their votes for the election of a candidate for Sealer of Weights and Measures;” and the committee of aider-men were “appointed to investigate and to take testimony as to who and what members of the board of councilmen had taken bribes for their votes for said election of Sealer of Weights and Measures for the city of Louisville.”
It is important to understand the subject-matter •of the investigation thus placed in the hands of the committee, as well as the victims thereof, in order to ascertain whether or not the law creating these boards of councilmen and aldermen cast the duty or imposed the authority upon the investigating -committee of five aldermen, thus raised by the resolution of the general council, to do that which the terms of the resolution demanded. If such a duty did not devolve on the general council as the appointment of
The law creating these boards and determining their authority is found in the Kentucky Statutes, as follows:
“§ 2765. The legislative power of said cities,” meaning cities of the first class, ‘ shall be in a board of twenty-four eouncilmen and in a board of twelve aldermen, which shall be styled the General Council.^
A succeeding section provides for the separate organization of each of these boards, and section 2771 provides that “each board shall judge the eligibility and the election of its members, adopt rules for its proceedings, and punish its members for disorderly conduct. Two-thirds of the members-elect concurring, either board may expel a member, but not twice for the same cause. Yacancies in either board shall be filled by the general council in joint session.”
These are the only provisions on the subject of the punishment or the expulsion of members of either board. And it would seem that authority to punish or expel a member is lodged in that particular board of which he may be a member.
It is true that all are members of the general conn
The law does not, in terms, authorize any investigation, but punishment for disorderly conduct could not be imposed or expulsion for cause be enforced without it.
Investigation is, therefore, authorized by necessary implication, but it must be one looking to the punishment or expulsion of a member, and as the penalty can be inflicted only by each board on its own members, the investigation of a member, which is authorized by law, must be carried on by the board to which he belongs.
Can the board of aldermen investigate, in any legal way or under any legal sanction, the members of the board of councilmen? Or, can the general council, itself without authority to punish or expel a member, authorize the board of aldermen or.raise a committee of aldermen to carry on an investigation looking to the punishment or expulsion of members of the board of councilmen? We think not, and yet this is the tribunal charged with the trial of certain offending-members, when the appellees, Hillenbrand and G-ibbs, were called on to testify, and before which body they are charged with testifying falsely.
We think the subject-matter under investigation before this tribunal was not one on which the accused could be legally sworn, or on which they could be
The whole proceeding was, therefore, a nullity. The learned judge below properly asked: “How could one be legally sworn upon a subject which was being illegally investigated, and by a forum without authority to investígale?”
Again, we have seen that the charges upon which the investigation was to be had by the committee were those of bribery in the election of a Sealer of Weights and Measures. We should expect to find, therefore, some statement in the indictment showing that an election for this office; if there be such an office, had been or was about to be held at which the bribery occurred. In other words, the occasion or purpose of the investigation must appear, and it must be shown to have been one authorized by law. And how shall we know the lawfulness of the purpose unless the facts are stated ?
The indictment says the purpose was to investigate “the charges of corruption,” which is too indefinite.
These inquiries are important, because we must know whether or not the matters about which the witnesses had been interrogated could be made the subject of a lawful investigation.
Other defects fatal to the indictment are urged by counsel, but those mentioned are sufficient to indicate the correctness of the ruling below.
Judgment affirmed.