Commonwealth ex rel. Vincent v. Withers

• Decision Date: 04 November 1936
• Parties: COMMONWEALTH ex rel. VINCENT, Atty. Gen., v. WITHERS.
• Court: Kentucky Court of Appeals

98 S.W.2d 24

266 Ky. 29

COMMONWEALTH ex rel. VINCENT, Atty. Gen., v. WITHERS.

Court of Appeals of Kentucky

November 4, 1936

Appeal from Circuit Court, Muhlenberg County.

Action by the Commonwealth, on the relation of B. M. Vincent Attorney General, against T. B. Withers. From a judgment for plaintiff, defendant appeals.

Affirmed.

B. M Vincent, Atty. Gen., and Hubert Meredith, of Greenville, for appellant.

T. J Sparks and Newton Belcher, both of Greenville, for appellee.

STANLEY Commissioner.

This is an action by the Attorney General, through local counsel, to have the appellee, T. B. Withers, declared a usurper in the office of a member of the board of education of Muhlenberg county, for the reason that he had forfeited his office. Sections 480, 483, 485, Civil Code of Practice; Tipton v. Commonwealth, 238 Ky. 111, 36 S.W.2d 855.

Section 4399-22 of the Statutes Supp. 1934 declares that if any member of a county board of education shall become interested in any contract for the sale to it of any supplies, for which school funds are expended, or in claims against the board, "his office shall without further action be vacant." To bring this condition of tenure to the notice of such an officer, and to accentuate its importance, he must, in addition to taking the constitutional oath of officers generally, take and subscribe to an oath containing the provision that "he will not, while serving as a member of such board, become interested, directly or indirectly, in any contract with or claim against said board." Section 4399-23, Kentucky Statutes Supp.1934.

It is a salutary doctrine that he who is intrusted with the business of others cannot be allowed to make such business an object of profit to himself. This is based upon principles of reason, of morality, and of public policy. These are principles of the common law and of equity which have been supplemented and made more emphatic by the foregoing and other statutory enactments. Nunemacher v. City of Louisville, 98 Ky. 334, 32 S.W. 1091, 17 Ky.Law Rep. 933. In their application and operation it is impossible to lay down any definite rules defining the nature of the interest of the officer, or indicating the line between that which is proper and that which is unlawful. In general, the disqualifying interest must be pecuniary or proprietary by which he stands to gain or lose something. Falling within the principle are contracts with firms in which the member of the municipal body is a partner or a corporation of which he is an officer, or sometimes only a stockholder or employee. Byrne & Speed Coal Co. v. City of Louisville, 189 Ky. 346, 224 S.W. 883; Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979. Furthermore, it is not material that the self-interest is only indirect or very small.

However, the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is so remote or collateral, such as being only a debtor, that it cannot be reasonably calculated to affect his judgment or conduct in the making of the contract or in its performance. Dillon on Municipalities, § 773. Cf. Collingsworth v. City of Catlettsburg, 236 Ky. 194, 32 S.W.2d 982.

Bearing these conceptions in mind, we state and appraise the evidence which the trial court found not to prove the appellee guilty of offending the statute.

The appellee was at the time covered by the record a partner in the ownership and operation of a coal mine. The county superintendent had been authorized by the board of education to purchase coal for 81 schools, delivery to be at the several school houses. Five men, Sumner, Hope, Parham, Eaves, and Johnson, severally procured Withers to prepare their bids for certain schools. According to Withers, he simply typed and put them in neater form than the parties had their papers. They were simple letters stating the schools and prices submitted. Withers filed the bids with the superintendent. He and each of these men testify emphatically that Withers had not solicited them to make these bids, and that there was no understanding or agreement as to a division of profits or that they would purchase the coal or any of it from his mine. Eaves was a son of one of the partners in the mine. Only Johnson, Hope, and Sumner had previously been customers of the coal company.

Bates the superintendent, testified that Withers asked to be and was present when the contracts were let. One of the other board members suggested that it would be all right. He was interested only in these five bidders and wanted them to get all the contracts they could to haul the coal. Withers testified he was present and only said to Bates that if the bids of these parties were as low or good as others, he would...