State v. Foley

• Decision Date: 06 November 1920
• Docket Number: 22,651,22,652
• Citation: 107 Kan. 608,193 P. 361
• Parties: THE STATE OF KANSAS, ex rel. RICHARD J. HOPKINS, as Attorney-general, etc., Plaintiff, v. P. T. FOLEY, as Mayor of the City of Parsons, Defendant. THE STATE OF KANSAS, ex rel. RICHARD J. HOPKINS, as Attorney-general, etc., Plaintiff, v. F. N. BOYD, as Police Judge of the City of Parsons, Defendant
• Court: Kansas Supreme Court

193 P. 361

107 Kan. 608

THE STATE OF KANSAS, ex rel. RICHARD J. HOPKINS, as Attorney-general, etc., Plaintiff, v. P. T. FOLEY, as Mayor of the City of Parsons, Defendant.

THE STATE OF KANSAS, ex rel. RICHARD J. HOPKINS, as Attorney-general, etc., Plaintiff, v. F. N. BOYD, as Police Judge of the City of Parsons, Defendant

Nos. 22,651, 22,652

Supreme Court of Kansas

November 6, 1920

Decided July, 1920

Original proceedings in quo warranto.

Judgment ordered.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUO WARRANTO--Ouster of Public Official--Findings and Conclusions of Special Commissioner Advisory Only. In an action originating in this court, when a special commissioner is appointed to take the testimony and to make findings of fact and conclusions of law, the commissioner's findings, if exceptions are taken thereto, are only advisory, and the court itself must examine all the testimony, and determine for itself the truth of the matters given in evidence, and the weight and significance to be attached thereto, as well as to determine the correct judgment to be entered.

2. SAME--Ouster of Public Officials--Good Faith of Officer Charged the Determining Factor. In quo warranto, where forfeiture of a public office is demanded by the state on charges of willful misconduct in office or willful neglect of official duty, the paramount consideration in scrutinizing the acts of the defendant officer is whether they bear the distinguishing characteristics of genuine good faith, not whether those acts are technically free from error when viewed under rigid and critical scrutiny.

3. SAME--Evidence Fails to Establish Willful Misconduct or Willful Neglect of Duty. The record examined, and held that it does not establish the state's charges of willful misconduct in office or willful neglect of duty on the part of the defendants.

Richard J. Hopkins, attorney-general, J. K. Rankin, and C. A. Matson, assistant attorneys-general, for the plaintiff.

J. J. Jones, of Chanute, W. S. Hyatt, and E. L. Burton, both of Parsons, for the defendants.

OPINION

DAWSON, J.:

These are original proceedings in quo warranto to forfeit the offices of the mayor and police judge of the city of Parsons.

The state charged Mayor P. T. Foley with willful misconduct in office and neglect of duty, in that he failed to notify the county attorney of violations of the prohibitory law of which he had knowledge, that he sanctioned a system of fines on violators of that law for the mere purpose of raising revenue for the city, that he personally profited from contracts awarded by the city for official city printing, and that he overdrew his official salary.

The first two of these charges were also directed against Police Judge F. N. Boyd.

The evidence to support the charges against these officials was presented as one case, so far as applicable, before Honorable Thomas Harley, of Lawrence, specially commissioned by this court with authority to hear the evidence, and to make findings of fact and conclusions of law. Commissioner Harley's findings in the Foley case read:

"FINDINGS OF FACT.

"I. That said P. T. Foley is now and has been ever since the first of January, 1919, the duly elected, qualified, and acting mayor of the city of Parsons, Labette county, Kansas. That said city of Parsons is a city of the first class, with a population of approximately 18,000, and adopted the commission form of government in 1910.

"II. That the Parsons Daily Eclipse, of which C. A. Lamb is the owner, editor, and publisher, was, on or about the first day of March, 1919, made the official city paper of the city of Parsons and has been such official city paper at all times since that date. And as such official paper, has published all the official notices and ordinances required by law to be published since that date in an official city paper.

"III. That neither said defendant, P. T. Foley, nor the Foley Railway Printing Company has had anything to do with the printing of such official publications as are required to be published in an official city paper, nor have they, or either of them, derived any profit therefrom.

"IV. That on or about the day of January, 1919, one F. W. Frye, who was the city clerk of said city, was designated by the city as its purchasing agent and since said date has made all the contracts for job printing for said city of Parsons.

"V. That said F. W. Frye, as said purchasing agent for said city of Parsons, ordered from time to time from said C. A. Lamb certain forms, blanks and other printing, and the said C. A. Lamb presented bills to the city of Parsons, Kan., for the same, which bills were allowed and warrants drawn on the treasurer in payment thereof. Said warrants were drawn to the order of said C. A. Lamb, and with one or two exceptions were endorsed by him and delivered to the Foley Railway Printing Company and by said company credited on the account of the said C. A. Lamb. Practically all the forms, blanks, and job printing for which warrants were issued was done by the Foley Railway Printing Company, which had been doing that class of work for Mr. Lamb for a number of years. That in each instance the Foley Railway Printing Company charged the personal account of the said C. A. Lamb for said forms, blanks or job printing from the city. But it was understood and agreed between the said C. A. Lamb and the said Foley Railway Printing Company that when said C. A. Lamb paid his account in full he was to have a discount on the entire bill of fifteen (15) per cent, the same being the estimated profit on the business.

"VI. The Foley Railway Printing Company is a corporation organized under the laws of this state with a capital stock of $ 10,000 divided into 100 shares with a par value of $ 100 each. Originally said P. T. Foley was the owner of 95 shares of said stock. Sometime, on or about the first day of January, 1919, said P. T. Foley gave to his wife all the shares of stock owned by him in said printing company and severed his connection with said company and ceased to have or take any interest in said company, except such an interest as a husband would naturally have or take in a property in which his wife owned a controlling interest.

"VII. Said P. T. Foley was the publisher and owner of the Parsons Republican between the dates of January 1, 1919, and October 13, 1919. That between said dates bills and claims from every source owned by said Parsons Republican were paid by the Foley Railway Printing Company, and an account was kept in the books of said printing company showing the amount due from said Parsons Republican. That during the dates last mentioned there had been no payment made on said account and no payment had been demanded by the Printing Company or tendered by Mr. Foley to said Printing Company.

"VIII. Said P. T. Foley during all the time that he has been mayor of the city of Parsons has, together with the other officers of said city, vigorously enforced all the ordinances of said city, including those relating to intoxicating liquors. That during the term of office of said P. T. Foley a number of complaints were filed in the police court of said city in which persons were charged with illegally having intoxicating liquors in their possession, under an ordinance passed by said city following what is commonly known as our 'bone-dry' law. None of said defendants were charged with the sale of intoxicating liquors. With a few exceptions all of said defendants were nonresidents of the state of Kansas. The said defendant reported to the county attorney of said county of Labette all resident offenders who were charged with violating the 'bone-dry' law, of whom the defendant had knowledge, giving to said county attorney the names of the officer or officers making the arrest, said report being made sometimes over the telephone, sometimes by going in person to the office of the county attorney, and at other times by having the county attorney come to the office of said defendant. None of said reports were in writing. Said defendant has been advised by the county attorney of said county that it was his opinion, and the opinion of the judge of the district court of that county, that persons going through the state having intoxicating liquors in their possession were not guilty of an offense against the laws of the state of Kansas. Said defendant, believing that to be the law, talked to the county attorney from time to time in regard to the nonresidents carrying liquors through the state, and gave said county attorney the names of those parties of whom he, the defendant, had knowledge, and talked over these cases in an informal manner with the county attorney.

"IX. That the said P. T. Foley was paid the sum of $ 133.33 per month as salary as mayor of the city of Parsons, from February 1, 1919, to October 1, 1919. Prior to December 10 1918, the salary of mayor of the city of Parsons was fixed at the sum of $ 1,200 per annum, payable monthly. On December 9, 1918, an ordinance was passed which was published on December 10, 1918, attempting to fix the salary of mayor of Parsons at $ 1,600 per annum. Section 6 of said ordinance provided: that said ordinance will take effect after its ratification by the Kansas legislature. That the said P. T. Foley, shortly after assuming the duties of mayor of the city of Parsons wrote to the attorney-general of the state of Kansas, and to the district judge of Labette county, inquiring of them as to the amount of salary he was entitled to draw as mayor. He then consulted with the city attorney, Mr. T. M. Brady, who advised him that he was entitled to draw a salary of $ 1,600 per annum. Said defendant, P. T. Foley, relying on said advice, collected from said city the said sum of $ 133.33 per month as salary as...