Stone v. Board of Prison Com'rs

• Decision Date: 13 May 1915
• Citation: 176 S.W. 39,164 Ky. 640
• Parties: STONE v. BOARD OF PRISON COM'RS ET AL.
• Court: Kentucky Court of Appeals

176 S.W. 39

164 Ky. 640

STONE v. BOARD OF PRISON COM'RS ET AL.

Court of Appeals of Kentucky.

May 13, 1915

Appeal from Circuit Court, Franklin County.

Action by E. H. Stone against the Board of Prison Commissioners and others. Judgment on demurrer dismissing the petition, and plaintiff appeals. Affirmed.

Brown &amp Nuckols, of Frankfort, for appellant.

James Garnett, Atty. Gen., and Robt. T. Caldwell, Asst. Atty. Gen for appellees.

CARROLL J.

For several years prior to 1912 the appellant had been employed as a guard at the Frankfort penitentiary. In December, 1912 he was removed by the board of prison commissioners in charge of the penitentiary, and on December 24, 1914, brought this suit against the three members of the board, the warden and Jesse Arnold and Nash Adkins, guards at the penitentiary. In his petition he averred that, pursuant to the orders of the board of prison commissioners, the warden wrongfully and illegally dismissed him from office as guard, and that his removal "was not made after public, or any, hearing upon charges preferred in writing, or otherwise, for political activity, insubordination, or dereliction of duty, or violation of rules of management of said prison, or cruelty to prisoners"; that, after his removal, the defendant Jesse Arnold was assigned to take his place as guard, and thereafter the defendant Nash Adkins was assigned to perform the duties of the office, and his name appears upon the roster of guards in place of the name of appellant. It was further averred that on June 12, 1912, an act of the Legislature passed at the 1912 session became a law, and that by the terms of this act it was the duty of the warden to appoint guards for a term of four years, subject to the approval of the prison commissioners; that on June 30, 1912, the warden appointed appellant as guard for a term of four years and certified his name to the board of prison commissioners for approval, and they did approve his appointment; that under this appointment he was employed and paid as guard from June 30, 1912, until his removal in December, 1912. He further averred that his appointment and approval entitled him to the office of guard for a period of four years, and that his removal, under the circumstances heretofore stated, was illegal and void. He prayed that it be adjudged that he be restored to his position as guard to serve the balance of his unexpired term of four years, and that the board of commissioners be compelled to certify to the auditor of public accounts his name for payment as a guard from the time of his wrongful dismissal. To this petition a general demurrer filed by the defendants was sustained by the lower court, and the petition of appellant dismissed.

The act of 1912, now section 3795 of the Kentucky Statutes, removed from office the persons then holding the places of prison commissioners and put the appointment of their successors in the hands of the Governor. It also provided that:

"The offices of wardens, deputy wardens, assistant deputy wardens, prison guards, clerks and all other offices shall continue in existence as heretofore created, but provided that they shall be filled by appointment for a term of four years and shall not be removed by the commissioners, except after public hearing upon charges preferred against them, or any of them, in writing, for any of the following causes, to wit: Political activity, insubordination, dereliction of duty, violation of the rules of management of said prisons, or cruelty to prisoners."

Accepting as true the averments of the petition, all of which were admitted by the demurrer, it appears that appellant had been appointed by the commissioners, who went into office under the act of 1912, as a guard for a term of four years beginning June 30, 1912, and that in December, 1912, when only six months of his four-year term had run, he was removed by the commissioners without a hearing, and in the absence of any charges against him that, under the statute, authorized his removal. We may therefore assume that his removal was unauthorized and illegal, because the commissioners have no power to remove a guard until after he has had a public hearing upon charges preferred against him in writing, and he can then be removed only for the causes, or one of them, specified in the statute as a ground for removal. The authority of the commissioners to remove guards and the other officers mentioned in the statute, who have been appointed for a term of four years, must be exercised in the manner pointed out in the statute. The commissioners have no power to remove these appointees, or any of them, arbitrarily, or in any other manner, or for any other cause, than as provided in the statute.

It was evidently the purpose of the Legislature, in the enactment of this statute, to take from these commissioners the authority to summarily and without cause remove prison officers and guards who had been appointed for a term; and, to prevent evasions of this statute, the act further provides that the offices mentioned "shall be filled by appointment for a term of four years." So that all these officers must be appointed for a term of four years, and, when so appointed, they are not subject to removal, except in the manner and for the causes set forth in the statute.

Having this view of the matter, it follows that, if the appellant had taken timely action, his petition stated a good cause of action and one that would have secured restoration to his office. But we think that, by acquiescing for two years or more in the action of the commissioners in removing him from office, he lost by laches his right to the relief sought in his petition. He was removed from office in December, 1912 and if, as he averred, he had been appointed for four years, and his removal was in violation of the statute, his cause of action to obtain relief accrued at once. No excuse for the long and unreasonable delay in bringing the action is disclosed by the petition, and we take for...