Fox v. Petty

30 S.W.2d 945, 235 Ky. 240, 1930 Ky. LEXIS 330

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 3, 1930
• Status: Published

Opinions

Opinion of the Court by

Judge Clay

Affirming.

Hubbard B. Petty, sheriff of Jefferson county, appointed Fred Barringer one of Ms deputies. Henry I. Fox, judge of the Jefferson county court, refused to approve the appointment, and Petty applied to the Jefferson circuit court for a writ of mandamus, which was granted. Judge Fox appeals.

The petition as amended alleges in appropriate terms the appointment of Barringer, and appellant’s refusal to approve. It further alleges that Barringer had had experience in the office of appellee’s predecessor, that he was a man of good moral habits, and fully qualified to act as deputy sheriff. It also charges that appellant arbitrarily refused to approve the appointment; that no justifiable reason was assigned for such refusal; and that no complaint was made that Barringer was not a person of good moral character and properly equipped to exercise the duties of the office. In the first paragraph of his answer appellant denied that his refusal was arbitrary or without justifiable reason. The second paragraph of the answer is as follows:

“Defendant, Henry I. Fox, for further answer to plaintiff’s petition as amended, states that on or about January 4th, 1930, two days before plaintiff’s term of office as sheriff of Jefferson county began, plaintiff furnished him, as County Judge of Jefferson county, with a list of prospective deputies and that at said time he was informed that, prior to the August Primary, 1929, when the plaintiff was a candidate for the office of Sheriff of Jefferson county, the plaintiff had entered into an agreement with one Chesley H. Searcy, to permit said Searcy to name ten of the plaintiff’s deputies in the event that he was elected Sheriff of Jefferson County, and in consideration for which said Searcy had agreed to support him in his race for the nomination of Sheriff of Jefferson county and that the names of ten prospective deputies had been chosen by said Searcy, and that plaintiff was presenting them in order to carry out said agreement as outlined above.

“Defendant states that, as soon as he saw the plaintiff at the first opportunity presented, he asked the plaintiff as to the truth of said information, and that the plaintiff admitted to him that said agreement and contract had been made by him.

“Defendant states that he immediately thereafter notified the plaintiff that he would not be a party to said agreement or contract, and that he as Judge of the County Court of Jefferson county ■would refuse to swear them in, and he now alleges that said contract, above set forth, was entered in between the plaintiff herein and said Chesley H. Searcy, and that said list of ten names was presented by the plaintiff in an effort to carry out his part of said contract.

“Defendant states that- on said list was the name of Fred Barringer, who is the same Fred Bar-ringer, the approval of whose appointment thereafter was requested by plaintiff on or about the date set up in plaintiff’s petition, to secure the approval of whose appointment this suit for a writ of mandamus has been filed, and defendant states that said Fred Barringer was chosen by said Chesley H. Searcy for said position of deputy sheriff as a part of the contract and agreement set out above, and that the plaintiff has again presented his name at the times mentioned in his petition for the purpose of carrying out said contract and agreement.

“Defendant states 'that said above described contract and agreement, whereby the plaintiff gave to said Chesley H. Searcy, the right to select and name ten of the deputies in the plaintiff’s office, provided the plaintiff was elected to said office, was illegal, corrupt and void, contrary to public policy, contrary to good morals and in contravention of section 3740 of the Kentucky Statutes, which reads as follows:

“ ‘Office not to be sold or farmed: Penalty1 for.—No office or post of profit, trust or honor under this commonwealth, whether civil or military, legislative, executive, ministerial or judicial, nor the deputation thereof, in whole or in part, shall be sold or let to farm by any person holding or expecting to hold the same. Such person so selling or letting, and the person so buying or receiving the letting, or with whose knowledge the same has been bought for him by another, shall be disqualified from holding such office or post, or the deputation thereof, and, upon conviction, shall be expelled therefrom.’

“Defendant states that said contract or agreement entered into between the plaintiff herein and said Chesley H. Searcy was unlawful and in contravention of section 1565b-3 of the Kentucky Statutes known as the Corrupt Practice Act, which prohibits any contract or agreement between any person who is a candidate and any other person whereby said candidate for office promises anything of value, either directly or indirectly, in consideration for the support of said candidate by the other person.

“Defendant further states that the plaintiff did not comply with section 1565b-4 of the Kentucky Statutes, known as the Corrupt Practice Act, in that he did not comply with the requirement of said section and file a statement of said contract, agreement and promise on the 15th day, or any day, before the making of such nomination, with the officer with whom his nomination papers were required to be filed, or with the Chairman of the Board of Election Commissioners, after said election, or with the County Clerk of said County.

“Defendant states that the presentation of the name of said Fred Barringer was an effort upon the part of said plaintiff to carry out said illegal, corrupt'and void contract,'and that he as Judge of the County Court of Jefferson County, has refused for the reasons outlined to approve said appointment, and to swear in said Fred Barringer, and that he, as Judge of the County Court of Jefferson County, will continue to so refuse unless ordered by a court of competent jurisdiction to approve of such appointment. ’ ’

Petty’s demurrer to this paragraph of the answer was sustained, and the only question for determination is whether the facts pleaded are sufficient to justify appellant’s refusal to approve the appointment.

Briefly stated, the grounds are these: The alleged agreement between Petty and Searcy was contrary to public policy, in contravention of section 3740, Kentucky Statutes, prohibiting the sale or farming of an office, and of section 1565b-3, Kentucky Statutes, relating to corrupt practices; also that appellee violated section 1565b-4, Kentucky Statutes, in that he failed to file a statement of the contract before and after his nomination for the office of sheriff. We have no difficulty in reaching the conclusion that the alleged agreement was not a sale or farming of the office within the purview of section 3740, Kentucky Statutes. Commonwealth v. Sheeran, 145 Ky. 361, 140 S. W. 568, 37 L. R. A. (N. S.) 289. Whether it contravenes section 1565b-3, Kentucky Statutes, and whether Petty’s failure to file a statement of the alleged agreement before and after the primary was a violation of section 1565b-4, Kentucky Statutes, we need not determine. The only penalties attached to a violation of the Corrupt Practice Act are a loss of office in case of contest, and punishment by fine. Where there has been no contest, the offending candidate may not be denied the right to perform the duties of his office.

However, there is no escape from the conclusion that the alleged contract is contrary to public policy, and therefore void. A public officer authorized and empowered to select his own deputies cannot contract away and surrender this power to another in consideration of political support. A contract contrary to public policy will not be enforced, but the courts will leave the parties where they have placed themselves. Kentucky Association of Highway Contractors v. Williams, 213 Ky. 167, 280 S. W. 937, 45 A. L. R. 544. Therefore, if the case were one where Petty was in court seeking to require Searcy to support him in his race for the nomination for the office of sheriff, or Searcy was seeking to require Petty to make an appointment pursuant to the agreement neither would be entitled to any relief. But that is not the case. Petty is not seeking the enforcement of the contract against Searcy. Nor is he here relying on the contract and asking appellant to approve the appointment for the purpose of carrying out the contract. The case is simply one where the deputy has been selected and approval has been withheld, not on the ground that the deputy is not qualified to hold the office, but on the sole ground that his appointment was made pursuant to a contract contrary to public policy. In the circumstances we are not called upon to enforce the agreement and merely saying that is the case cannot change the facts. Our sole function is to decide whether the county court, charged with the duty of approving appointments, may look beyond the qualifications of the appointee and refuse to approve for the reason stated. The statute (section 4560, Kentucky Statutes), which has been in force from an early date, reads as follows:

“Every sheriff may, by and with the approval of the county court, appoint his own deputies, and may revoke the appointment at his pleasure. Before any deputy shall proceed to execute the duties of his office he shall take the oath required to be taken by the sheriff.”

In the case of Day v. Justices of Fleming County Court, 3 B. Mon. 198, it was recognized that a writ of mandamus was the appropriate remedy where the county court refused to approve the appointment of a deputy sheriff. In deciding that the writ in that case was properly denied, the court said:

“Though the Sheriff possesses the unquestionable common law power to appoint his own deputies, and to remove them, at pleasure, it is his duty to appoint honest and competent persons, and the public is interested in his faithful execution of this trust. The power was reposed, not for his. individual benefit, but for the public good, and the County Court Justices, before whom his deputies are required to take the oaths of office, must be admitted to possess some discretion in guarding the public against a glaring and reckless abuse of this power.

“It cannot be admitted that if the Sheriff should appoint a peculator and extortioner, a forger or a felon to office, that the County Court would be bound to administer to him the oaths of office, and thereby to qualify, license, and send him- forth, clothed with the habiliments of office, to prey upon the public; yet if they have no discretion on this subject, to all such, should such be appointed they might be bound to administer the oath.”

In the more recent case of Applegate v. Applegate, 4 Metc. 236, it was held that the right of approval, and implied right of disapproval, of the appointment of a deputy by the sheriff, conferred by law on the county court, belongs to the executive and not to the judicial power of the court, and that mandamus was an appropriate remedy whereby the county court may be compelled to show cause why it refused to approve and qualify a deputy appointed by the sheriff. In the case of Dassey, County Judge, v. Sanders, Sheriff, 33 S. W. 193, 17 Ky. Law Rep. 972, the court again recognized the rule that for good cause the county court may withhold its approval, but if withheld without such cause the writ lies. In that case the deputy had been indicted for felonies five years before his appointment. His certificate as a teacher had been revoked on the ground of immoral conduct, and he had abandoned two wives. It was held that these facts did not authorize the county court to ■decline to approve his appointment when at "the time of his appointment and for several years prior thereto he had shown himself a capable, honest, and courageous public officer, and friends and foes alike testified as to his present good character. The rule deducible from these cases is that, while the county court has some discretion in approving the appointment of a deputy sheriff, that discretion is confined to the qualifications of the appointee. If the appointee be immoral, dishonest, incompetent, or otherwise disqualified to perform the duties of the office, the county court may withhold its approval. On the other hand, if the appointee is of good moral character, and capable of performing the duties of the office, approval cannot be withheld. It is admitted that Barringer is a man of good moral character and ■qualified in every way to perform the duties of the office. He is not a party to the agreement, and it is not even ■claimed that he knew of the agreement. In the circumstances there is no escape from the conclusion that the county court cannot ignore his qualifications and withhold approval of the appointment on the sole ground that the appointment was made pursuant to an invalid contract, not involving any moral turpitude on' Ms part. It follows that the demurrer to the second paragraph of the answer was properly sustained, and that the court did not err in awarding the- writ.

Judgment affirmed.

Whole court sitting. Chief Justice Thomas and Judges Logan and Rees dissenting.