126 Ky. 357 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
The appellants, J. W. Henry, T. N. Perry, and C. L. Dean, together with J. H. Schultz, all justices of the
The charge of malfeasance made in the indictment was based upon the act of each of the appellants in voting in their official capacity as members of the fiscal court to allow and pay out of the funds of Montgomery county a claim of $600 in favor of one W. "W. Eubank, demanded by the latter as a year’s salary for services alleged to have been performed by him as supervisor .of the roads and turnpikes of Montgomery county; it being alleged in the indictment that Eubank was not and had never beeh supervisor of the roads and turnpikes of the county, that he was not entitled to the salary claimed or any part thereof, and that these facts were known to appellants when they voted to allow and pay the salary. It was therefore charged in the indictment, argued on the trial in the 'court below, and is now contended that, in voting to appropriate the money of Montgomery county to the payment of Eubank’s claim appellants acted willfully, unlawfully, and corruptly, and, if so, they were guilty of malfeasance as charged. It appears from the record that Eubank and one Stokely were together
The action of the fiscal court on August 4, 1905, declaring a vacancy in the office of supervisor of roads, was doubtless superinduced by the opinion of
In view of the conclusion expressed by this court in the case supra, it is patent that the election of Eubank by the fiscal court was void. But, conceding this to be true, was he not supervisor de facto until the office was declared vacant by the fiscal court August 4, 1905, and even after that time as long as his discharge of the duties of the office was acquiesced in by the fiscal court. “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where- duties of the office were exercised, first, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action supposing him to be the officer he assumed to be; second, under color of a known or valid appointment or election, but where the officer has failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some" defect or irregularity in its exercise, such ineligibility, want of power of defect being unknown to the public; fourth, under color of an election, or appointment-by or pursuant to a public unconstitutional law, before the same is adjudged to be such. ’ ’ Mechera on Public Officers, section 318. That Eubanks was not an usurper in attempting to perform the duties of the office in question after the alleged vacancy therein was
As before stated, the claim of $600 presented by Eubank to the fiscal court at its April term, 1906, was for salary alleged to be due him as road' supervisor for the year ending January 1, 1906. Appellants and their associate, Schultz, who for some reason unexplained in the record was not tried, voted to allow his claim, and, as the four constituted a majority of the court, it was allowed. It now remains to be deter-; mined whether there was any evidence introduced upon the trial which conduced to prove that appellants or any of them in thus voting were actuated by
The county judge, who was presumably better informed of the law than were the magistrates composing the fiscal court, though of tbe opinion when Eubank’s claim was allowed that he had never been legally elected road supervisor, nevertheless expressed a different opinion at the April term, 1905, when Stokely resigned, by then saying the election of another supervisor, as at that time proposed, would not be proper, for Eubank yet had a year to serve as the incumbent of the office. Is the fact that he
It is apparent from the foregoing authorities, and many others that might be cited, that appellants as members of the fiscal court acted in a judicial or quasi judicial capacity in voting to allow Eubank’s claim. They, therefore, acted in the exercise of a legal discretion, and, this being true, although it be conceded that in voting to allow the claim in question they were guilty of an error in judgment, departure from sound policy, or that they acted contrary to law, it is not sufficient to subject them to indictment or punishment. In order to sustain a criminal prosecution against appellants for the act complained of, it must be shown either that the act involved palpable omission of a duty imperatively required of them by law, which they were without discretion to disregard, or that it amounted to a willful and corrupt abuse of such discretion. The testimony before us may be sufficient to show error in judgment on the part of appellants, and even a stubborn or unreasonable disregard of the arguments and advice of the county attorney to the effect that Eubank’s claim should have been rejected, but it wholly fails to prove that, in voting to allow the claim, they acted dishonestly or from a corrupt motive. If the members of the fiscal court are to be proceeded against criminally or in a civil action for damages for mere mistakes in judgment, however hurtful to the public, they would ttndertake the performance of their official duties in
The lower court should have given a peremptory instruction after the introduction, of the evidence in behalf of the Commonwealth, directing the jury to find appellants not guilty, and, because of its failure to do so, the judgment is reversed, and cause remanded for a new trial and further proceedings consistent with the opinion.