Commonwealth v. Pate

«"Opinion of the court, by .JUDGE O’REÁR Reversing. Appellee, S. A. Pate, was indicted under section 4332, Kentucky Statutes, which provides: “It shall be unlawful .for the county judge, any justice of the «peace, sheriff or tax collector,- county attorney, or supervisor or assistant ■•supervisor, or any overseer to become directly or indirectly interested in any .contract for working roads or building ■or repairing bridges; and it shall be unlawful for either of said officers or employes to buy or become interested in any road or bridge order or certificate, or any claim, ■growing out of such work. Either of. said officers or employes who shall violate -this section shall be guilty of a •.■misdem.ea-nor, and, upon indictment by a grand jury, and [471] conviction thereof before any court of competent jurisdiy tion, shall be fined for each offense not lesis than fifty nor more than three hundred dollars. This section shall be1 given in charge to the grand jury by the judge of the circuit court.” Appellee had previously been appointed su pervisor of roads for Breckinridge county by the county court, and had qualified by accepting the appointment,, executing the bond, and entering upon the discharge of the duties of the office. Tt appears that Breckinridgecounty bad adopted the “taxation system” of keeping its roads in repair. The indictment charges, in substance, the appointment, qualification, and acting of appellee as road -.supervisor of Breckinridge county; that within a year before the finding of ihe indictment he had unlawfully and willfully, while holding the office of sux>ervisor of public roads in Breckinridge county, become interested', in and the benefit"! ary of a certain road order and claim, growing out of road work in magisterial district No. 1 of Breckinridge county, which order was as follows: “No.. 66. Breckinridge County, Ky., Nov. 2, 1899. To the Treasurer of Breckinridge County: Pay to the order of S. A. Pate, six hundred and forty-two and seven one-hundredths dollars for teams on road, and charge same to-road fund -of first magisterial district. [Signed] S. A. Pate, Supervisor Maj. List.” The indictment further charged that the above order was for teams furnished by-said Pate in his own interest for work on road in said district of Breckinridge county; that the order was drawn by Pate payable to himself for work on said road, and he thereby becoming interested in said order- and claim; that said claim was approved by the county judge of Breckinridge county, and collected by said Pate out of the road funds of said magisterial district of said county. A de [472] murrer was interposed to. the indictment, which we think wais properly overruled by the trial court. The evidence in behalf of the Commonwealth sustained the charge set ■out in the indictment, but, failing to show that appellee had taken the oath of office as such .supervisor, the court gave 'the jury a peremptory instruction to find the defendant not guilty, which was done. The court seems to have proceeded upon the theory that the taking of the oath required by law was a prerequisite to the investiture of appellee with the title to and legal responsibilities for the duties of the office. Section 4314, Kentucky Statutes, requiring the •oath, is in these words: “The supervisor shall, at the next regular term of the county court after his. appointment, execute bond to the Commonwealth, for the benefit -of the county with sureties to be approved by the court in double the amount of the bridge and road fund, and •shall take an oath for the faithful discharge of his duties. 'The taking of the oath and the execution of said bond •shall be noted on the order book of the court. The bond .shall be recorded in the order book,” etc. It is assumed in argument by counsel for appellee that the taking of the oath was not only a necessary incident to appellee’s induction into office, but that the fact of it must be proven •by the record, and affirmatively shown as part of the Commonwealth’s ease; that, unless it was so shown, appellee was a mere usurper of his office, his only offense being that of usurpation; that the penalties denounced by the 'Statute under .consideration applied only to de jure, not to de facto., -officers. The statute was enacted to protect the public by removing from its agent and representative •every possible interest in the character of the public works under his supervision that could conflict with his public duty. The Legislature recognized the old truth that [473] where the interest of the servant and the served came into conllict, the servant can not properly discriminate between his interest and his duty; hence the temptation is sought to be removed. The protection is to the public against those who assume, under right of office, to serve it. A number of cases have been examined holding that the oath to be taken by the officer is merely an incident to the holding of the office, as an additional protection to the public as the most solemn assurance the official can give of his purpose to honestly administer the affairs of his position. In its practical effect !t can give no additional weight to the official's obligation to the public. Its violation involves no additional penalty. Of course, if the statute expressly provides that the right to the office should not attach till after the oath was taken, a more serious difficulty would be presented. In this case the record shows the appointment of appellee- as supervisor of public roads. He accepted the appointment by executing the bond required by law, and actually took possession of the office, and undertook by virtue of that appointment and qualification to serve the public in that capacity. In Johnston v. Wilson, 2 N. H., 202, cases are cited supporting the doctrine that, “when a person has distinctly admitted or recognized the official capacity of another, he can not afterwards, offer evidence against the validity of his appointment; and, where a person has acted in an official capacity, he himself can not afterwards offer evi-' dence against the validity of his own appointment.” And this seems to be the sound doctrine; for one should not be suffered to enjoy the emoluments and benefits of a public office without being subject to the pains and penalties-for a breach of its duties. If the’ oath was a prerequisite-to appellee’s investiture of the office, his accepting the ap [474] po.intment, entering upon and engaging in a discharge oí its public duties, and enjoying its benefits, in a controversy between third persons, as well as in a controversy between him and third persons, or him and the public, raises the conclusive presumption that he took the prescribed oath where the indulgence oí such presumption wall tend to protect the rights of such third persons or the public. Judgment reversed, and cause remanded for proceedings consistent herewith.