Cahill v. Perrine

JUDGE HOBSON delivered the opinion, oe the court. This is an action by appellant, as a citizen and taxpayer of Mason county, to enjoin the payment by the sheriff of the county to his co-appellees, out of the county levy in his hands, certain allowances made to them by the Mason Fiscal Court, on the ground that the order of the county court levying the tax does not specify distinctly, as provided in section 180 of the Constitution, what part of the levy is to be used for this purpose, and that the claims were for services in guarding the property of two turnpike companies, under the act approved May 20, 1897, and could not be properly paid out of the county treasury, for the reason that these two corporations had not accepted the provisions of the present Constitution, and so were not entitled to the benefit of this act passed since its adontion. The second of these objections will be noticed first, as its discussion will assist in the determination of the other. The act referred to is entitled “An act to prevent lynching and injury to and destruction of real and personal property in this Commonwealth at the hands of mobs or other riotous assemblages of persons, and to prevent the — 536 — posting and circulation of threatening letters, and to prescribe penalties for the enforcement of its provisions.” The parts of it material to this controversy are as follows: “Section 1. If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming, disturbing or injuring any person or persons, or to rescue any person or persons charged with a public offense from any officer or other person having the lawful custody of any such person or persons with the view of inflicting any kind of punishment on them, or with the view of preventing their lawful prosecution for any such offense or to do any felonious act, they, or either of them, shall be deemed guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years. “Sec. 2. If any two or more persons shall confederate or band together and go forth for the purpose of molesting, injuring or destroying any property, real or personal, of any other person, persons or corporation, whether the same be injured, molested or damaged or not, they shall be guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years.” “Sec. 5. That upon information being lodged with any county judge or circuit judge in this commonwealth by any reliable and credible person or persons, stating under oath that he has information or knowledge that causes him to believe, and that he and they actually believe, that two or more persons have banded or confederated together, or are about to do so, for the purpose of injuring or destroying any property, real or personal, tollgate, tollgate house, bridge or other property of any person, turnpike or railroad company or other corporation in the — 537 — county, or for the purpose of intimidating or preventing the keeper of any tollgate or bridge from collecting toll, and shall describe the said property or person threatened, it shall be the duty of the said county judge or cir-t cuit judge to at once order the sheriff or any constable of the county to summon a posse of not less than two nor more than ten discreet, able-bodied men, between twenty-one and fifty years of age, for each piece of property threatened with injury or destruction, to be placed at or in such property, armed with guns and ammunition, until the judge is satisfied that the cause no longer exists, not to exceed thirty days at any one time; provided, howevex*. at the expiration of thirty days if the court is satisfied from the information from a reliable source, that if said guard or guards are rexnoved the property will be injured or destroyed, he may continue the guards for a period of thirty days longer, and so on, thirty days at a time, until he is satisfied that there is no further necessity therefor.” “Sec. 6. If the county judge, circuit judge, sheriff, or other peace officer shall refuse or fail to discharge any of the duties imposed upon him by the provisions of this act, or shall be guilty of a dereliction of duty as such officer in the premises, he shall upon conviction be fined not less than one hundred nor xnore than five hundred dollars, and shall forfeit his office as a penalty, in addition to the pay ment of said fine.” “Sec. 7. That the officer, for summoning the guards, shall be paid a fee of fifty cents for summoning-said guard, and each guard shall be paid two dollars, or at that rate for each day he is on duty, to be paid upon the warrant of the county judge out of the county treasury and levy of that year.” “Sec. 11. As mobs and riotous assemblages of persons — 538 — in certain counties of this Commonwealth have for several months past been engaged, and are now engaged, in injuring and destroying real and personal property, and the good name of this Commonwealth demands that such unlawful conduct should be stopped as soon as possible it is hereby declared that an emergency exists, and this act shall take effect when approved by the Governor.” Proper complaint was made to the circuit judge of apprehended mob violence, and pursuant to these provisions, he. ordered the sheriff to summon guards and prevent its perpetration. The court of claims allowed the guards for their services, as the statute provided; but it is insisted that they should not be paid, because their services were rendered in protecting the property of a corporation which had not complied with section 190 • of the Constitution. That section reads as follows: “No corporation in existence at the time of the adoption of this Constitution shall have the benefit of future legislation without first filing in the office of the Secretary of State an acceptance of the, provisions of this Constitution.” ; The object of the statute quoted was to “maintain peace and order,” preserve the good name of the Commonwealth, and check a spirit of lawlessness, that, if unrestrained, would eventually sap the foundation of civilized society. It was a valid exercise of the police power, The whole people of the State were vitally interested in the maintenance of the supremacy of the law, and an act to preserve the peace was a proper exercise of the police power, without regard to the protection, it might afford to the .property of any individual citizen. The State had a right to maintain order, ' although thfis might promote the interest of the corporation men — 539 — tioned, in common with the interests of the other citizens of the State. It is a matter of common observation that a spirit of disregard of law, if unchecked, will not be confined to the original object of its hostility, but will gradually widen its range so as to include other -persons and things. For this reason, a, government that would maintain order must enforce respect for its laws, and check, the beginnings of evil. The complaint made to the circuit judge in this case showed the existence of organized mobs, threatening one man that if he stayed where he was living, and collected tolls', they would hang him; that in another- instance they had broken into a man’s house, and threatened that, if he continued to reside there and collect toll, they would kill him, and thrash his wife and daughter; that they had cut down and destroyed property, and were threatening to do worse than they had done. It was the plain purpose of the statute to prevent, by the heavy penalties imposed, the bloodshed and other disturbances of society incident to such lawless conduct as this; and the circuit judge properly made the orders referred to. No society calling itself civilized could tolerate such conduct without losing the respect of its own citizens. It is immaterial whose property was protected. If the peace and good order of the State required the intervention of the authorities, the statute applied. The other objection may be disposed of more briefly. Section 180 of the Constitution provides: “Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town, or municipal' board or local legislative body, levying a tax, shall specify distinctly the purpose for which said taxis levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.” — 540 — The order of the fiscal court levying the tax referred to is as follows: “On motion, it is ordered that the county levy for the present year be fixed at 67% cents on each $100.00 worth of taxable property; said 67% cents to be distributed to the various funds as follows: Free turnpike fund .............•............. 25 cts School fund ................................. 15 cts. M. & B. S. R. R, fund........................ 2% cts. Infirmary fund .............................. 4 cts. Turnpike and bridge fund .................... 1 ct. General claim fund .......................... 20 cts 67% cts.” It will be seen that the statute requires the guards to be paid “out of the county treasury and levy of that year.” We think this fairly means that they are to be paid out of the general fund, and the designation of this fund in the order as the “general claim fund” was, in our judgment, sufficiently specific, under the provision of the Constitution above qúoted. The statute did not provide that the fiscal court should make a special levy for the payment of these claims, but expressly places them among the general expenses of the county, just as the guards of the county jail, -or other such things coming up during- the year, would stand under the previous statute. The circuit judge, by statute is a conservator of the peace throughout the Commonwealth, and may properly discharge the duties imposed upon him by the act quoted, without infringing section 28 of the Constitution. See, also, Morton v. Woodford, 99 Ky., 369, [35 S. W., 1112]; Stone v. Wilson, 19 Ky. L. R., 136, [39 S. W., 49]. The judgment below is affirmed. The whole court considered the case.