Holliday v. Fields, Governor

• Decision Date: 14 July 1925
• Citation: 210 Ky. 179
• Parties: Holliday v. Fields, Governor.
• Court: United States State Supreme Court — District of Kentucky

210 Ky. 179

Holliday v. Fields, Governor.

Court of Appeals of Kentucky.

Decided July 14, 1925.

1. Officers — Charges by Governor Must Each be Supported by Affidavit of Two Witnesses to Warrant Removal from Office. — In proceeding by Governor under Constitution, section 227, as amended,

and Acts 1924, chapter 49, for removal of officers of Commonwealth for neglect of duty or malfeasance or misfeasance in office, each charge made must be supported by affidavit of two persons.

2. Officers — Act Authorizing Removal of Officers by Governor Held Not Retrospective. — Amendment of 1918 to Constitution, section 227, not being self-executing, Acts 1924, chapter 48, effective June 18, 1924, which provided for removal for neglect of duty, even though not willful, not containing any express declaration that it should apply to past offenses, held to be prospective in effect and not retrospective, in view of rule of construction of legislature's intent under Kentucky Statutes, section 459.

3. Officers — Charges by Governor for Removal of Officers Must be Legally Sufficient, and Notice and Opportunity to Develop Facts Must be Afforded. — Although under Constitution, section 227, as amended, and Acts 1924, chapter 49, charges by Governor for removal of officers for neglect of duty, misfeasance, and nonfeasance in office need not possess formalities and exactness of indictment, they must be legally sufficient, and proper notice and opportunity afforded to develop facts, which must support order of removal.

4. Officers — Errors of Law or Fact by Governor in Removing an Officer Reviewable on Appeal. — In proceeding by Governor under Constitution, section 227, and Acts 1924, chapter 49, for removal of officers for neglect of duty or misfeasance or nonfeasance, Governor exercises discretion, and on appeal by officer court may review any errors of law or fact, and finally determine matter on its merits.

5. Officers — "Neglect of Duty" Within Meaning of Amendment Authorizing Removal from Office Therefor Defined — "Misfeasance" — "Malfeasance." — "Neglect of duty," within meaning of amendment of 1918 of Constitution, section 227, for removal of officers therefor, means careless or intentional failure to exercise due diligence in performance of official duty, degree of care depending on character of duty, and including therefor willful neglect, and such forms of misfeasance and malfeasance as involve a failure in performance of duties required by law; "misfeasance" being the wrongdoing of an official act, and "malfeasance" being wrongdoing of official act with evil intent, accompanied by such gross negligence as to be equivalent to fraud.

6. Officers — Intent of Constitutional Amendment to Section Providing for Removal of Officers Stated. — Amendment of 1918 to Constitution, section 227, making neglect of duty a cause for removal of officers, held not intended to create an additional offense, or appoint censor of public morals for public officials, but rather to have intended better law enforcement and more diligence and greater efficiency on the part of peace officers by authorizing removal of such as did not do their duty.

7. Sheriffs and Constables — "Neglect of Duty" of Peace Officer as Cause for Removal Illustrated. — It would be neglect of duty within meaning of Constitution, section 227, as amended, to carelessly or intentionally suffer a criminal to escape or prisoner to be lynched or fail to arrest person committing public offense in his presence, or fail to perform any duty required by law, intentionally or by reason of drunkenness, use of narcotics, mere indolence, or other cause, but personal acts of officer violating law, or single act of intoxication, not accompanied with failure to discharge duties of office, is not within terms of amendment.

8. Criminal Law — Legislature in Carrying out Constitutional Amendment Cannot Enlarge or Extend Terms of that Instrument by Defining its Words or Adding Offenses. — While the legislature may designate offenses within the meaning of the constitutional words of an amendment, it cannot enlarge or extend terms of that instrument by defining its words or by adding offenses not included therein, and statute must be read in light of power conferred.

9. Sheriffs and Constables — Statute Enforcing Amendment Providing for Removal of Peace Officers for Neglect of Duty Held to Have Exceeded its Power. — Where Constitution, section 227, as amended, provided for removal of peace officers for neglect of duty only, Acts 1924, chapter 49, thereunder denouncing offenses and attempting to include, as neglect of duty, malfeasance and misfeasance, such as bribery and gross immorality, held to have exceeded power conferred, as offenses named, though violations of law, are not synonymous with "neglect of duty."

10. Sheriffs and Constables — Misconduct and Intoxication of Sheriff Held Not Basis for Removal Under Constitutional Amendment. — In proceeding for removal of sheriff under Constitution, section 227, as amended, and Acts 1924, chapter 49, charge showing that he was drunk, violent, boisterous and indecent to amount to gross misconduct, and subject him to liability of heavy fines, which might be basis for prosecution for malfeasance in office before jury, held not sufficient to show neglect of duty in office, authorizing removal by executive order.

11. Sheriffs and Constables — Evidence Not Sufficient to Warrant Removal of Sheriff from Office for Neglect of Duty. — In proceeding for removal of sheriff from office under Constitution, section 227, as amended, and Acts 1924, chapter 49, evidence which could be considered on charges supported by sufficient affidavits held insufficient to show neglect of duty in office after amendment became effective June 18, 1924, although all the evidence on charges not supported by proper affidavits may have been sufficient.

Appeal from Executive Order.

MOORE & MOORE, MORGAN, EVERSOLE & BOWLING and JOHN D. CARROLL for appellant.

FRANK E. DAUGHERTY, Attorney General, GARDNER K. BYERS, Assistant Attorney General, OVERTON S. HOGAN, DENNY P. SMITH and BAILEY P. WOOTTON for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Reversing.

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 Perry 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 become effective June 18, 1924, and were based on eleven charges preferred by the Governor and reading as follows:

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

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

"(3) With using loud and boisterous language and cursing upon the streets in the town of Hazard, Perry county, Kentucky, 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, Kentucky, 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 30th, 1925, in the city of Hazard, Perry county, Kentucky, 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 therefor, 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 on the public streets of the city of Hazard, Perry county, Kentucky, 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, Kentucky, 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 whiskey 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 whiskey, 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...