Holliday v. Fields

• Decision Date: 14 July 1925
• Parties: HOLLIDAY v. FIELDS, GOVERNOR.
• Court: Kentucky Court of Appeals

275 S.W. 642

210 Ky. 179

HOLLIDAY v. FIELDS, GOVERNOR.

Court of Appeals of Kentucky.

July 14, 1925

Rehearing Denied Oct. 13, 1925.

Tolbert Holliday was removed from office as Sheriff of Perry County by executive order of William J. Fields, Governor, and he appeals. Order canceled and set aside.

See also, 207 Ky. 462, 269 S.W. 539.

Clarke C.J., and Dietzman, J., dissenting.

Moore & Moore and Morgan, Eversole & Bowling, all of Hazard, and Hon. John D. Carroll, of Frankfort, for appellant.

Frank E. Daugherty, Atty. Gen., Gardner K. Byers, Asst. Atty. Gen., and Overton Hogan, of Frankfort, and Denny P. Smith and Bailey P. Wootton, both of Hazard, for appellee.

McCANDLESS J.

This is an appeal from an executive order entered by Hon. Wm. J. Fields, Governor of Kentucky, on the 5th day of March, 1925, removing Tolbert Holliday from the office of sheriff of Berry county.

The proceedings were held pursuant to the provisions of section 227 of the state Constitution and the provisions of chapter 49 of the Acts of the General Assembly of 1924, which became effective June 18, 1924, and were based on 11 charges preferred by the Governor, and reading as follows:

"(1) Drunkenness on or about August 26 and 27, 1924, in the town of Hazard, Perry county, Ky.

(2) Again with drunkenness on or about the middle of December, 1924, in the town of Hazard, Perry county, Ky.

(3) With using loud and boisterous language and cursing upon the streets in the town of Hazard, Perry county, Ky. the same dates heretofore stated.

(4) That during the month of April, 1924, the said Tolbert Holliday was present at and saw a game of cards, where money was bet, won, and lost, and that he failed to make any arrest of any person engaged in or conducting said game, and thereby failed to perform his duty as a peace officer or to enforce the law, which it was his duty to do.

(5) That during the month of April, 1924, the said Tolbert Holliday engaged in a game of cards in which money was bet, won, and lost, and that said game was conducted on the second floor of the Mazer building on Main street in the city of Hazard, Perry county, Ky. and that said sheriff was thereby guilty of committing a crime under the laws of the state of Kentucky.

(6) That on the night of January 30, 1925, in the city of Hazard, Perry county, Ky. the said Tolbert Holliday entered the Club Pool Room and restaurant in said city and county and state of Kentucky, and, without any apparent reason therefore, used violent and vulgar language, and disturbed the public peace of said city by his conduct in said business house; that he was in a state of intoxication, and used violence upon the persons there congregated by throwing men and boys outside said building, and by striking one person over the head with his pistol and throwing him out of the house; that on said occasion, and immediately following, he used vulgar, indecent, and improper language, and further committed the offense of swearing in the public streets of the city of Hazard, Perry county, Ky. and in the presence of citizens generally, and ladies especially, and all of said conduct was engaged in by said Holliday at a time when all persons congregated in said pool room and restaurant were peaceful and quiet and no disturbance existed at said time, and at a time when no person who was abused or attacked was resisting the officer or committing any felony whatever.

(7) That in the month of May, 1924, the said Tolbert Holliday in a room in the Beaumont Hotel in Hazard, Perry county, Ky. where John Bailey was conducting a game of cards, wherein money was being bet, won, and lost, and that said Bailey was operating said game, and that the same was done in the presence of said Tolbert Holliday; that whisky was upon the table, and that said Holliday did not arrest, or cause to be arrested, the person conducting the game or the owner of the whisky, or the persons engaged in the game, and thereby failed to perform the duties of his office or to enforce the laws.

(8) That upon the above occasion the said Tolbert Holliday engaged in the game above described, wherein money was bet, won, and lost at the place and time above stated, and thereby committed a crime of gambling and violation of the laws of this state.

(9) That prior to July, 1924, one Justus Begley held the office of deputy sheriff of Perry county under said Tolbert Holliday, sheriff of said county, in the state of Kentucky, and that the said Tolbert Holliday caused the said sheriff to operate in the camp of the Columbus Mining Company; that the said Justus Begley received for his services at said Columbus Mining Company the sum of $150 per month, less $9.85 for house rent per month; that the said mining company paid the sheriff, Tolbert Holliday, the sum of $175 per month for the said Justus Begley's services, and that the said Holliday paid to Begley $150 per month, and thereby kept and retained for his own use and benefit, and did use, the sum of $25 per month out of the compensation for said services of said Justus Begley.

(10) That John M. Combs is and has been deputy sheriff of Perry county, Ky. under the sheriff of said county, Tolbert Holliday, and that the said Combs was assigned to and performed work and services in the camp of the Hazard-Jellico Coal Company at Harveytown, Perry county, Ky.; that said Tolbert Holliday, sheriff of said county, paid to the said Combs for his services the sum of $150 per month; that prior to the election of said Tolbert Holliday as sheriff aforesaid the said coal company paid to the said Combs the sum of $175 for the same services rendered in the same capacity as deputy sheriff of Perry county; that, after the election and qualification of said Tolbert Holliday, the salary of said Combs was reduced $25 per month, and the said $25 was to be paid, and was paid, to the said Tolbert Holliday, sheriff of Perry county.

(11) By his failure, as sheriff of Perry county, to execute and serve process placed in his hands from Letcher and other counties of the commonwealth, and by his failure to serve process in litigation pending in the Letcher, Perry, and other courts of the commonwealth."

Due notice was given appellant of the time and place of the hearing, and he appeared and successively filed numerous demurrers and motions, each of these being filed without waiving those preceding it, and as to all of which the executive reserved his ruling. These included special demurrers to the jurisdiction of the Governor to hold the proceedings and to each charge; also general demurrers and motion to strike each charge severally and motion to elect upon which of the charges the commonwealth would rely.

Respondent was inducted into office in January, 1922, and proof was taken upon the part of the commonwealth covering the entire period of his incumbency; much of it relating to matters not embraced in the written charges. Also each of a number of the charges preferred was supported by the affidavit of but a single person. At the close of the commonwealth's evidence appellant moved to exclude all evidence as to matters occurring before the effective date of the act, June 18, 1924. This was overruled, and defendant declined to introduce any evidence, although afforded ample opportunity to do so. Pending the trial, appellant sought a writ of prohibition in this court on the ground that the act vested the Governor with judicial power, and in effect created a new court in violation of the Constitution. The writ was denied and the validity of the act in that respect upheld. Holliday v. Fields, Governor, 207 Ky. 462, 269 S.W. 539. The questions to be determined may be summarized thus: (1) Does the act require each charge made by the Governor to be supported by the affidavit of two persons, or may several charges be combined, each supported by the affidavit of a single person? (2) Is the act prospective or retrospective? (3) Are the acts charged sufficient in law and supported by sufficient evidence to authorize appellant's removal?

In view of the voluminous record, it is thought best to consider the legal questions involved before referring to the facts or discussing the charges in detail.

Section 227 of the Constitution is in these words: "Judges of the county court, justices of the peace, sheriffs, coroners, surveyors, jailers, assessors, county attorneys and constables shall be subject to indictment or prosecution for misfeasance or malfeasance in office, or willful neglect in 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 to appeal to the court of appeals: Provided, also, that the General Assembly may, in addition to the indictment or prosecution above provided, by general law provide other manner, method or mode for the vacation of office or the removal from office of any sheriff, jailer, constable or peace officer, for neglect of duty, and may provide the method, manner, or mode of reinstatement of such officers." (Our italics.)

The part in plain type embodies the original section which appeared in substantially the same language in the third Constitution, and the italicized part is an amendment thereto by an act of the Legislature approved in March, 1918 (see Acts 1918, c. 62), and ratified by the people at the general election in 1919.

The act is entitled an act relating to the suspension and removal of officers in this commonwealth by the Governor of the state for neglect of duty, or for malfeasance or misfeasance in office.

The first section reads in part:

"That if any sheriff, jailer, constable or peace officers of this commonwealth guilty of gross misconduct in office, bribery, gross neglect to enforce

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