125 Ky. 725 | Ky. Ct. App. | 1907
Lead Opinion
Opinion op the Court by
Reversing.
W. E. Lane was indicted in the McCracken circuit court, charged with unlawfully working upon the public roads of McCracken county while holding the office of justice of the peace for the fifth magisterial district. The indictment charges that, while holding such office, and being, by virtue thereof a member of the fiscal court, he worked in person, and also furnished teams to be used in working, upon the public roads, receiving for his own labor $2 per day and $3 per day for each of his teams; that he was paid out of the treasury of McCracken county for this work. On a plea of “not guilty,” the case was submitted to the judge of the McCracken circuit court for trial, on an agreed statement of facts. The court adjudged the defendant “not guilty,” and discharged him from custody. The Commonwealth appeals.'
The agreed statement of facts submitted is as fol
The indictment in this case was drawn under seo tion 4332 of the Kentucky Statutes of 1903, which is as follows: “It shall be unlawful for the county judge, any justice of the peace, sheriff or tax collector, county attorney or supervisor or assistant supervisor, or any overseer, to become directly or indirectly interested in any contract for working roads or building or repairing bridges; and it shall be unlawful for either of said officers or employes to buy or become interested in any road or bridge order or certificate, or any claim growing out of such work. Either of said officers or employes who shall violate this section shall be guilty of a misdemeanor, and, upon indictment by a grand jury, and conviction thereof before any court of competent jurisdiction, shall be fined for each offense not less than fifty nor more than three hundred dollars. This section shall be given in charge to the grand jury by the judge of the circuit court.” This case turns upon the construction of the word ‘ ‘ contract ’ ’ in this statute. The statute plainly says that no member of the fiscal court shall be interested directly, or indirectly, or' be concerned, in any contract for work to be done or material to be furnished for the county. The word “contract” here means an agreement entered into between the county, on one part, and some person or persons, on the other, for a consideration, to do a certain thing. It may be either verbal or written, and it is immaterial whether it is the one or the other; if it is lawful, it is none the less binding. In this case it appears from the agreed state of facts that the defendant had a contract with the county, by the terms of which he was to receive $2
It is insisted that the word “contract,” as used in this section of the statute, means work let by the job to some independent contractor; and that, before the magistrate could be held guilty of violating section 4332, he would have to be directly interested in the letting of the contract, or in the profits to be made therefrom; that he would not be guilty of any violation of the law, if he and his teams were employed by the independent contractor. To this reasoning we cannot agree. The magistrates compose the fiscal court of the county, and, as such, have charge of the financial affairs of the county. They must pass upon and allow claims against the county, must determine, when claims are presented against the county, whether they are good, and sufficient claims, and of whether or not they should be paid. The supervisor of roads is required, from time to time, to render an account of his stewardship to the fiscal court, and to present in this account his claims for money expended in looking after the roads. The magistrate in this case, being a member of the fiscal court, helped elect the road supervisor, and when he came to settle his accounts this same magistrate, as a member of the' fiscal court, would sit and pass upon the validity, not only of his own, but such other claims as his employer, the road supervisor, might have to present against the county. There is no intimation in this case that either the road supervisor or the magistrate has been guilty of the slightest wrongdoing, still defendant’s
It is insisted by appellee that this interpretation of the statute would work a great hardship upon him, as it would entirely prevent him from working upon the public roads of the county. The salary attached to the office of justice of the peace is small indeed, and it seems to us that, if there is much profit to be derived from working upon the public roads, one would be justified in resigning the office of magistrate in order that he might not be deprived of an opportunity to do this work. It may be, as is suggested by appellant, that a magistrate may retain his position for the purpose of securing for himself this employment, which, but for his position, he could not get. If this is true, it affords an additional reason why the statute should be strictly enforced. It is further insisted by appellee that to work upon the public roads, as he has, is not unlawful, because it is done in his individual capacity, and not in his official capacity, and that, while officially it is his duty to superintend the work of the road supervisor without violating the statute. We fear that even a justice of the peace would find it difficult to draw so fine a
The case of Commonwealth v. Pate, 110 Ky., 468, 61 S. W., 1009, 22 Ky. Law Rep., 1890, is in many respects similar to the case at bar. There the defendant was the road supervisor, and as such he used his own teams upon the public roads and presented a bill for same to the fiscal court, which was paid, and later he was indicted, and a demurrer to the indictment was sustained. Upon appeal to this court, Judg'e O’Rear, speaking for the court, said: “The statute was enacted to protect the public by removing from its agent and representative every possible interest in the character of the public works under his supervision that could conflict with his public duty. The legislature recognized the old truth that, where the interest of the servant and the served came into conflict, the servant cannot properly discriminate between his interest and his duty. Hence the temptatiofi is sought to .be removed. The protection is to the public against those who assume, under right of office, to serve it.”
In the case of Boyd County v. Arthur et al., 118 Ky., 932, 82 S. W., 613, 26 Ky. Law Rep., 906, the fiscal court had made an order allowing each member thereof $3 per day for each day’s work done in directing and supervising the work in
In each of these cases the members of the fiscal court were not dealing with contracts or contract work, as interpreted by defendant. In one case they were attempting to pay the supervisor for the usei of his teams for so many days at so much per day, and in the other they were attempting to pay themselves for their services, by the day, rendered in looking after the public roads. In the case at bar, they are attempting to pay one of their members for his services and the use of his teams for so many days at so much per day. The cases are almost identical; the difference being a detail, not in principle. Under the authority of these cases, we are of opinion that appellee, in accepting employment in the manner in which he did, under the supervisor of roads of his county, while he was a member of the fiscal court thereof, clearly violated the provisions of section 4332 of the Kentucky Statutes of 1903.
For this reason, the judgment of the lower court is reversed, and case remanded for further proceedings consistent with tMs opinion.
Dissenting Opinion
(dissenting). In my opinion the court has misconstrued the language used and the evil intended to be remedied by section 4332 of the Kentucky Statutes of 1903. It is a matter of history that, prior to the enactment of this statute, the fiscal court usually appointed some member of the court to let and supervise contracts for the construction and
For these reasons, I dissent from the opinion of the court..