The Commonwealth v. Williams

• Decision Date: 08 October 1880
• Citation: 79 Ky. 42
• Parties: The Commonwealth v. Williams.
• Court: Kentucky Court of Appeals

79 Ky. 42

The Commonwealth v. Williams.

Court of Appeals of Kentucky.

October 8, 1880.

APPEAL FROM GRAVES CIRCUIT COURT.

R. H. WILLIAMS FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

CHIEF JUSTICE COFER DELIVERED THE OPINION OF THE COURT.

The appellee was indicted in the Graves circuit court for the offense of misfeasance in office, alleged to have been committed in manner and form as follows:

"The said R. H. Williams, on the 27th day of October, 1879, in the county aforesaid, he being judge of the county court of Graves county, duly elected and qualified as such judge, . . . was, while engaged in the performance of official duties as such judge, found to be in a state of intoxication from the use of spirituous, vinous, or malt liquors; and particularly was said Judge R. H. Williams in a state of intoxication while engaged in the discharge of official duties on the 20th of September, 1879, when Elisha Tom came before said county judge for the purpose of obtaining letters of administration on the estate of W. S. L. Tom, then deceased, and to execute bond as such before said judge, and to have appraisers of said estate appointed, all of which was done before said R. H. Williams as such judge on said day; and during the time of the transaction of all this official business before said judge . . . he was . . . in a state of intoxication from the use of spirituous, vinous, or malt liquors, . . . contrary to the form of the statute," &c.

The indictment was based on section 1 of an act, entitled "An act to prevent intoxication of county officers in this Commonwealth," approved April 9, 1878 (Acts 1878, vol. 1, page 126).

That section reads as follows:

"That it shall be deemed misfeasance in office for the judge of any county court, justice of the peace, sheriff, coroner, surveyor, county assessor, attorney for a county, constable, police judge, marshal, or clerk of any chancery or police court, while engaged in, or by law required to be engaged in, the discharge of his official duties, to be in a state of intoxication, produced by the use of malt, vinous, or spirituous liquors."

The only penalty denounced by the statute is removal from office.

We entertain no doubt that the General Assembly possesses ample power to punish public officers of all grades for being voluntarily in a state of intoxication while engaged in, or when required by law to be engaged in, the discharge of official duties.

One who engages to serve the public in an official capacity has no right, voluntarily, to unfit himself to any degree for the faithful and intelligent discharge of the duties of his position; and the law-making power of the state may punish him for so doing in any manner not prohibited by the constitution.

But the constitution has designated the offenses for which certain public officers may be removed from office, and the legislature has no power to prescribe removal from office as a penalty for offenses not so designated; nor can it, by declaring that a given offense shall be deemed one of a class of offenses for which an officer may be removed, make it of that class, and authorize or require the removal of an officer upon conviction of such offense. The constitution is in such a case a criminal statute, and having designated certain offenses for which certain named public officers may be removed from office, is equivalent to a declaration that the designated officers shall not be removed from office for any offense other than those enumerated.

Section 36, article 4, of the constitution, provides that —

"Judges of the county court, and justices of the peace, sheriffs, coroners, surveyors, jailers, county assessors, attorney for the county, and constables, shall be subject to indictment or presentment for malfeasance or...