Cahill v. Perrine

• Decision Date: 03 February 1899
• Citation: 105 Ky. 531,49 S.W. 344
• Parties: CAHILL v. PERRINE et al. [1]
• Court: Kentucky Court of Appeals

49 S.W. 344

105 Ky. 531

CAHILL v. PERRINE et al. ^[1]

Court of Appeals of Kentucky.

February 3, 1899^[2]

Appeal from circuit court, Mason county.

"To be officially reported."

Action by James E. Cahill against S. P. Perrine and others to enjoin the payment out of the county levy of certain allowances made by the fiscal court. Judgment for defendants, and plaintiff appeals. Affirmed.

L. W Galbraith and E. L. Worthington, for appellant.

W. H Wadsworth and L. W. Robertson, for appellees.

HOBSON J.

This is an action by appellant, as a citizen and taxpayer of Mason county, to enjoin the payment by the sheriff of the county to his co-appellees, out of the county levy in his hands certain allowances made to them by the Mason fiscal court, on the ground that the order of the county court levying the tax does not specify distinctly, as provided in section 180 of the constitution, what part of the levy is to be used for this purpose, and that the claims were for services in guarding the property of two turnpike companies, under the act approved May 20, 1897, and could not be properly paid out of the county treasury, for the reason that these two corporations had not accepted the provisions of the present constitution, and so were not entitled to the benefit of this act passed since its adoption. The second of these objections will be noticed first, as its discussion will assist in the determination of the other.

The act referred to is entitled "An act to prevent lynching and injury to and destruction of real and personal property in this commonwealth at the hands of mobs or other riotous assemblages of persons, and to prevent the posting and circulation of threatening letters, and to prescribe penalties for the enforcement of its provisions." The parts of it material to this controversy are as follows:

"Section 1. If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming, disturbing or injuring any person or persons, or to rescue any person or persons charged with a public offense from any officer or other person having the lawful custody of any such person or persons with the view of inflicting any kind of punishment on them, or with the view of preventing their lawful prosecution for any such offense or to do any felonious act, they, or either of them, shall be deemed guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years.

"Sec. 2. If any two or more persons shall confederate or band together and go forth, for the purpose of molesting, injuring or destroying any property, real or personal, of any other person, persons or corporation, whether the same be molested or damaged or not, they shall be guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years."

"Sec. 5. That upon information being lodged with any county judge or circuit judge in this commonwealth by any reliable and credible person or persons, stating under oath that he has information or knowledge that causes him to believe, and that he and they actually believe, that two or more persons have banded or confederated together, or are about to do so, for the purpose of injuring or destroying any property, real or personal, tollgate, tollgate house, bridge or other property of any person, turnpike or railroad company or other corporation in the county, or for the purpose of intimidating or preventing the keeper of any tollgate or bridge from collecting toll, and shall describe the said property or person threatened, it shall be the duty of the said county judge or circuit judge to at once order the sheriff or any constable of the county to summon a posse of not less than two nor more than ten discreet, able-bodied men, between twenty-one and fifty years of age, for each piece of property threatened with injury or destruction, to be placed at or in such property, armed with guns and ammunition, until the judge is satisfied that the cause no longer exists, not to exceed thirty days at any one time: provided, however, at the expiration of thirty days if the court is satisfied from information from a reliable source, that if said guard or guards are removed the property will be injured or destroyed, he may continue the guard for a period of thirty days longer, and so on, thirty days at a time, until he is satisfied that there is no further necessity therefor.

"Sec. 6. If the county judge, circuit judge, sheriff, or other peace officer shall refuse to discharge any of the duties imposed on him by the provisions of this act, or shall be guilty of a dereliction of duty as such officer in the premises, he shall upon conviction be fined not less than one hundred nor more than five hundred dollars, and shall forfeit his office as a penalty, in addition to the payment of said fine.

"Sec. 7. That the officer, for summoning the guards, shall be paid a fee of fifty cents for summoning said guard, and each guard shall be paid two dollars, or at that rate for

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