126 Ky. 738 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversring.
The principal question involved in this case is whether or not a public officer who has been indicted and convicted of malfeasance in office, and a judgment entered upon the verdict declaring his office vacant, may suspend the operation of the judgment by an appeal and execution of a supersedeas bond, whereby pending the appeal he may perform the duties of the office. The question comes up in this way; The fiscal court of Montgomery county is composed -of the county judge and six justices; thus making it necessary that four of the court, if all the members are present, shall vote in favor of a proposition before it carries. On September 22, 1906, three of the members of the fiscal court were tried before a jury and convicted of malfeasance in office; a fine of $350 being assessed against each of them, except one who was fined $100. The judgment entered upon the verdict, in addition to imposing the penalty fixed by the jury, adjudged that “the offices held by said
Preliminary to the main question, the point is raised that although it may be conceded that, if the convicted justices had perfected their supersedeas bond previous to the time the court met for the purpose of electing a supervisor, and have thus sus
It is the contention of appellee that, under these Code provisions, the judgment in misdemeanor cases is not suspended by the execution of a bond, nor until the transcript has been lodged with the clerk of .the Court of Appeals, and he has issued his' certificate. In this contention we cannot concur. The Code allows the defendant to prosecute an appeal. It provides how it shall be done, and declares that “the appeal
This brings us to a consideration of the principal question. Section 227 of' the Constitution provides that “the judges of the county court, justices of the, peace, sheriffs, coroners, surveyors, jailers, assessors, county attorneys and constables shall be subject to indictment and prosecution for misfeasance or malfeasance in office or wilful neglect in the discharge of official duties in such mode as may be prescribed by law; and upon conviction his office shall become vacant; but such officer shall have the right of appeal to the Court of Appeals.” Pursuant to this section, the General Assembly enacted section 3748 of the Kentucky Statutes of 1903, which, after copying a portion of the section of the Constitution quoted, provides that the officer guilty shall upon conviction “be fined in any sum not less than one hundred nor more than one thousand dollars and upon such conviction the office held by such person shall become vacant, and the judgment of conviction shall so recite, but such officer shall have the right of appeal to the Court of Appeals.” In behalf of the officers, it is insisted that the ouster is a part of the judgment of conviction, and that, as an appeal is allowed, it contemplates an appeal from the whole judgment — not merely a part of it — and that the execution of the appeal bond suspends the entire judgment. On the other hand, the argument is made that the supersedeas bond merely stays the execution of so much of the judgment as imposed a fine; and the judgment removing an officer from office is self-executing, and nothing is required on the part of any official to carry it into effect; that a supersedeas is only intended to become operative as to that part of a judgment which is to
It is suggested that when a public official has been indicted and found guilty of a grave offense, and' judgment has been pronounced depriving him of the office in the conduct of which hd committed the malfeasance, he ought not thereafter ta be allowed by suspending the judgment to discharge the duties of the office during an appeal; thereby defeating the course of the law that took from him the office he had disgraced. A sufficient answer to this is that, in the administration of justice, under our procedure, no judgment of an inferior' tribunal can be deemed to finally adjudge the rights of the parties when the person against whom it is entered prosecutes within the time and in the manner allowed by law an appeal to a court having jurisdiction to- revise it. Neither public policy nor the ends of justice would be promoted by denying to a public official the right to test the validity of a judgment against him; and it is difficult to understand upon what principle it can be
Upon the whole, we are of the opinion that the fair meaning of the constitutional provision allowing an appeal carries with it the right to suspend the judgment; and that, during the pendency of the appeal, neither the judgment imposing the fine nor vacating the office becomes effective.
Wherefore the judgment is reversed, with directions for proceedings in conformity with this opinion.