State v. Kennedy

• Citation: 108 P. 837,82 Kan. 373
• Decision Date: 07 May 1910
• Docket Number: 16,305
• Parties: THE STATE OF KANSAS, Plaintiff, v. M. C. KENNEDY, Defendant
• Court: Kansas Supreme Court

108 P. 837

82 Kan. 373

THE STATE OF KANSAS, Plaintiff, v. M. C. KENNEDY, Defendant

No. 16,305

Supreme Court of Kansas

May 7, 1910

Decided January, 1910.

Original proceeding in quo warranto.

Judgment rendered in favor of defendant, with costs.

SYLLABUS

SYLLABUS BY THE COURT.

1. COUNTY COMMISSIONERS -- Repair of County Bridges. Under the provisions of article 2 of chapter 14 of the General Statutes of 1909 the board of county commissioners must determine what bridges shall be repaired at the expense of the county, the plans to be followed, the material to be used and the cost of the work, and must make appropriations to pay for the work. It may appoint a superintendent of repair for each bridge, but is not obliged to do so, and may itself exercise general oversight and supervision of the execution of contracts for such work.

2. COUNTY COMMISSIONERS -- Performance of Official Services by a Single Member Outside of Board Meetings. The efficient discharge of its duties may, and frequently does, require the board of county commissioners to perform official services outside of board meetings. In some instances the joint observation and combined participation of all the members may not be necessary, and in such a case a single member, acting as a committee of the board, may render lawful services as a commissioner. Bridge repair work and oversight of the poor farm may afford opportunity for such services.

3. COUNTY COMMISSIONERS -- Compensation of Members of Board. The statutes of this state do not limit the compensation of members of the board of county commissioners to pay for services rendered at board meetings, and single members performing services of the kind described in paragraph 2 may be paid therefor the per diem compensation provided by statute, and statutory mileage.

4. COUNTY COMMISSIONERS -- "Corruption" -- Removal from Office -- Payment of Illegal or Excessive Demands against County. "Corruption," within the meaning of section 2309 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 25, § 180), providing that if any county commissioner shall corruptly perform any duty he shall forfeit his office and be removed, involves the intentional disregard of law from improper motives; and in order that the payment of excessive or illegal demands against the county may be corrupt the commissioner must have purposed to violate his official duty, defraud the county by misappropriating its funds and secure to himself or to some one else unlawful gain.

5. COUNTY COMMISSIONERS -- Burden of Proving Corruption -- Presumption of Honesty and Good Faith. In an action to remove a county commissioner on the ground that he corruptly performed his duties the burden of showing corruption rests upon the state. The law presumes honesty and good faith until the contrary is made to appear by evidence, and the commissioner is not called upon to justify himself until something evidencing corruption is offered.

6. COUNTY COMMISSIONERS -- Same. In such an action record proof of the number of board meetings attended by the commissioner in a given month merely shows what his compensation for attending board meetings in that month should be. It does not tend to prove that other services were not performed, or cast the burden upon the commissioner of justifying the receipt of more compensation for that month than he was entitled to for attending board meetings.

7. COUNTY COMMISSIONERS -- Payment of Unverified Claims -- Inadvertence -- Corruption. Occasional departures by the board of county commissioners from the statute relating to the allowance of claims against the county, as that claims were not verified, occurring through mere inadvertence, without wrongful intent and under circumstances exposing the county to no imposition or injury, do not constitute corruption.

8. COUNTY COMMISSIONERS -- Payment of Claims Not Sufficiently Itemized -- Advice of County Attorney. The payment of claims which are not sufficiently itemized, occurring through a misinterpretation of the statute relating to that subject, does not constitute corruption, where the board acts in good faith and relies upon the advice of the county attorney that the claims are sufficiently itemized.

9. COUNTY COMMISSIONERS -- Neglect or Refusal to Perform Official Duty -- Removal from Office. Under section 2309 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 25, § 180), providing that if any commissioner or other county officer shall neglect or refuse to perform any act which it is his duty to perform he shall forfeit his office and be removed, the duty must be personal and the act must be one which the officer has the legal capacity and authority to perform or he can not be guilty of neglect.

10. COUNTY COMMISSIONERS -- Forfeiture of Office -- Grounds. It is not every oversight or omission within the strict letter of the law which will entail forfeiture of office. The purpose of the statute is to prevent persons from continuing to hold office whose inattention to duty, either because of its habitualness or its gravity, endangers the public welfare; and the neglect contemplated must disclose either willfulness or indifference to duty so persistent or in affairs of such importance that the safety of the public interests is threatened.

11. COUNTY COMMISSIONERS -- Same. Under the circumstances of this case it is held that irregularities in the publication of statements of sums of money allowed and in advertisements for bids for bridge repair work, failure to publish estimates of expenditures upon which tax levies were made, and failure to advertise for bids for the repair of a bridge, do not constitute legal causes for the removal of a county commissioner from office on the ground of neglect of duty.

Fred S. Jackson, attorney-general, Lee Bond, county attorney, and Keplinger & Trickett, for the plaintiff.

William Dill, and A. E. Dempsey, for the defendant.

OPINION

BURCH, J.:

This proceeding was instituted to remove the defendant from the office of county commissioner of Leavenworth county, on the ground that he corruptly performed his duties. The petition was amended to include a charge of neglect and refusal to perform acts which it was his official duty to perform. A commissioner was appointed who, after hearing the evidence and the arguments of counsel, has returned findings of fact and conclusions of law exonerating the defendant. The plaintiff attacks the commissioner's report on numerous grounds.

The findings of fact cover every issue raised by the pleadings, and it was unnecessary to extend them further. Some of those which are most important are based upon the testimony of witnesses whom the commissioner chose to believe in preference to others. From an examination of the abstracts it appears that a choice was unavoidable, that it was not arbitrarily made, and that in some instances it necessarily rested in part upon considerations which a printed record can not present. A number of matters were covered by testimony bringing them within the proved custom and practice regularly governing the transaction of county business. The commissioner appears to have relied upon this testimony in opposition to some evidence to the contrary, the weight and credibility of which he was obliged to determine. Some of the testimony for the state was of such a character that, in the light of all the evidence, the commissioner did not credit it. This observation applies to some matters which the defendant did not notice in his testimony. The commissioner's method in dealing with the evidence has been tested in other respects, and was plainly such as any trial judge would have been obliged to pursue. One of the chief controversies related to the value of bridge work. By consent of the parties, and accompanied by representatives of the parties, the commissioner visited and inspected all of the larger bridges in question and thirty of the smaller ones. Statements and explanations were made by representatives of the parties at the time of these inspections, and the bridges were examined in the light of such statements and explanations and in connection with the evidence already taken. The course adopted was wise, was consented to, no objections were interposed at the time to anything that occurred, and criticism upon the commissioner's conduct in this respect comes now with poor grace and no force. The court has taken pains to search the record for proof of the burden of the petition--willful corruption, dishonesty, conspiracy to rob and defraud the county, and like charges. There is none. Without discussing the evidence, which is voluminous and conflicting, it is sufficient to say that it sustains the findings of fact. The only questions to be considered are whether the commissioner misapprehended the law at any material point and whether his conclusions of law are correct.

The action is prosecuted under section 180 of chapter 25 of the General Statutes of 1868 (Gen. Stat. 1909, § 2309), which reads as follows:

"If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure."

The defendant is charged with corruption in the matter of his salary and mileage for the years 1907 and 1908. The statute reads as follows:

"Each member of the board of county commissioners of the several counties of the state shall receive as full compensation for his services for the county the sum of three dollars per day, and shall each be allowed and receive five cents per mile for each mile actually and...