Hazelrigg v. Douglass

104 S.W. 755, 126 Ky. 738, 1907 Ky. LEXIS 94

• Court: Court of Appeals of Kentucky
• Decided: October 17, 1907
• Status: Published

Opinion

Opinion op the Court by

Judge Carroll

Reversring.

The principal question involved in this case is whether or not a public officer who has been indicted and convicted of malfeasance in office, and a judgment entered upon the verdict declaring his office vacant, may suspend the operation of the judgment by an appeal and execution of a supersedeas bond, whereby pending the appeal he may perform the duties of the office. The question comes up in this way; The fiscal court of Montgomery county is composed -of the county judge and six justices; thus making it necessary that four of the court, if all the members are present, shall vote in favor of a proposition before it carries. On September 22, 1906, three of the members of the fiscal court were tried before a jury and convicted of malfeasance in office; a fine of $350 being assessed against each of them, except one who was fined $100. The judgment entered upon the verdict, in addition to imposing the penalty fixed by the jury, adjudged that “the offices held by said defendants be, and they are here, declared to be forfeited and vacant, to all of which the defendants each object and except, and pray an appeal to the Court of Appeals, which is granted. ’ ’ On the same day each of them executed a sufficient appeal bond before the clerk of the circuit court. On October 6th an election . was held by the fiscal court for the purpose of electing; a road supervisor. All the members of the court, including those who had been convicted, were present. The three convicted justices and the county judge declined to vote for appellee Douglass, who was a candidate, but he received the votes of the other three members of the court. If the justices convicted had a right to participate in his election, he did not receive the votes of a majority of the court who were present and was not elected. If the convicted members were not entitled to vote, then the other three and the county judge constituted a quorum, and, having received the votes of three, he was elected. Afterwards the county judge refused to permit Douglass to qualify as supervisor, upon the ground that, as all the members of the court were present and entitled to vote, he did not receive the vote of a majority, and hence was not entitled to the office. Thereupon Douglass brought this action against the appellant, who was county judge, to require him to accept his bond. The lower court held that Douglass was legally elected, and directed the county judge to permit him to qualify. From that judgment, the county judge prosecutes this appeal.

Preliminary to the main question, the point is raised that although it may be conceded that, if the convicted justices had perfected their supersedeas bond previous to the time the court met for the purpose of electing a supervisor, and have thus suspended the judgment removing them from office, yet, as they had failed to perfect the appeal so as to .authorize the issual of a supersedeas, the judgment of the circuit court stood in full force and effect against them. Cr. Code Prac.. section 348, provides that in cases of this character “the appeal must be prayed during the term at which the judgment is rendered and shall be granted upon the condition that the record be lodged in the clerk’s office of the Court of Appeals within sixty days after the judgment. ” Section 349 reads: “The appeal shall not suspend the execution of the judgment unless the defendant cause to he executed before the clerk of the circuit court a covenant by good surety to be approved by said clerk, for the payment in ease the judgment be affirmed of the fine and costs of the appeal and all damages thereon * * * and cause said covenant to be copied into the transcript upon which being lodged with the clerk of the Court of Appeals he shall issue a certificate that execution of the judgment is suspended.” The justices upon the day the judgment was entered executed in the manner provided in section 349 the bond mentioned in that section; but, the clerk being unable to prepare the transcript, it was not filed in the office of the clerk of the Court of Appeals until October 19th, on which day he issued the certificate in conformity to this section.

It is the contention of appellee that, under these Code provisions, the judgment in misdemeanor cases is not suspended by the execution of a bond, nor until the transcript has been lodged with the clerk of .the Court of Appeals, and he has issued his' certificate. In this contention we cannot concur. The Code allows the defendant to prosecute an appeal. It provides how it shall be done, and declares that “the appeal shall not suspend the execution of the judgment unless the defendant cause to be executed before the clerk of the circuit court a covenant by good surety,” conditioned that the judgment shall be paid in case it is affirmed. The execution of this bond suspends the execution of the judgment provided the record is lodged with the clerk of the Court of Appeals within 60 days after the judgment. "When the defendant has executed his bond, all that he is then required to do to bring the ease before this court is to file the record within the time allowed. It was certainly not intended by these provisions of the Code, giving the judgment defendant an appeal and a specified time in which to file his record, to say to him that, although he might execute the bond required and use every effort to have the clerk of the circuit" court copy the record so that he could file it within the 60 days, after execution of the bond, and before the clerk had time to make out the record, the collection of the judgment might be enforced by levy upon his property or by taking custody of his person. If this could be done, it would deny to the judgment defendant an opportunity to enjoy the benefits conferred by the right of appeal. Although the defendant might do everything the Code required of him to stay, proceedings pending an appeal, he would be deprived of all the substantial rights arising from his appeal, if the payment of the fine could be exacted or the punishment of imprisonment inflicted during the time required by the clerk in the preparation of the transcript. What advantage would it be to a defendant to execute bond and prosecute an appeal, and file his record within the time allowed, if immediately upon the rendition of the judgment, and before the clerk could possibly prepare the transcript for filing in the office of the clerk of the Court of Appeals, he might he arrested under the judgment and placed in jail, and required to remain there until he had served out the sentence imposed if the clerk failed to deliver the transcript until the term of his imprisonment fixed in the judgment had expired; or, if the judgment was for a fine, it might be collected by execution and paid unto the State treasury by the collecting officer within the 60 days allowed to file the transcript, and before the clerk had prepared the same. This construction would utterly destroy the purpose and effect of the provisions allowing an appeal and place the defendant in virtually the same attitude as if the right of appeal was denied. Our conclusion is that, upon the execution of the bond before the circuit clerk, the judgment is suspended, and no proceedings can be taken under it for 60 days from the date of the judgment. If within that time the record is filed in the clerk’s office of this court, it goes without saying that no action can be taken towards enforcing the judgment until the appeal has been disposed of by this court. If the record is not filed within the 60 days, the suspended judgment is restored to life, and such proceedings may be had as if no bond had been executed. Commonwealth v. Howard, 81 Ky. 57. The requirement of section 349 that the clerk of the Court of Appeals shall issue a certificate that execution of the judgment is suspended is merely intended to notify all persons who might desire to enforce the collection of the judgment that the defendant has perfected his appeal by filing the record within the 60 days; so that, if a removed officer can stay a judgment of ouster against him by superseding the judgment and perfecting the appeal, the justices by the execution of the bond on Seeptember 22d were qualified to participate as members of the fiscal court in tbe election of a road supervisor on October 6th.

This brings us to a consideration of the principal question. Section 227 of' the Constitution provides that “the judges of the county court, justices of the, peace, sheriffs, coroners, surveyors, jailers, assessors, county attorneys and constables shall be subject to indictment and prosecution for misfeasance or malfeasance in office or wilful neglect in the discharge of official duties in such mode as may be prescribed by law; and upon conviction his office shall become vacant; but such officer shall have the right of appeal to the Court of Appeals.” Pursuant to this section, the General Assembly enacted section 3748 of the Kentucky Statutes of 1903, which, after copying a portion of the section of the Constitution quoted, provides that the officer guilty shall upon conviction “be fined in any sum not less than one hundred nor more than one thousand dollars and upon such conviction the office held by such person shall become vacant, and the judgment of conviction shall so recite, but such officer shall have the right of appeal to the Court of Appeals.” In behalf of the officers, it is insisted that the ouster is a part of the judgment of conviction, and that, as an appeal is allowed, it contemplates an appeal from the whole judgment — not merely a part of it — and that the execution of the appeal bond suspends the entire judgment. On the other hand, the argument is made that the supersedeas bond merely stays the execution of so much of the judgment as imposed a fine; and the judgment removing an officer from office is self-executing, and nothing is required on the part of any official to carry it into effect; that a supersedeas is only intended to become operative as to that part of a judgment which is to be executed by some ministerial officer in its enforcement or collection, as by levying upon the property of the defendant, or taking Ms person into custody. There is a good deal to be said on both sides of this proposition; but our conclusion is that the execution of the supersedeas suspends the whole judgment until the appeal is disposed of. It is a most significant fact that the sections of the Constitution and statute under which prosecutions like this may be maintained provide that the convicted officer shall have the right of appeal to the Court of Appeals. It is, we think, manifest that this allows an appeal, not only from the judgment imposing a fine or imprisonment, but also from so much of the judgment as vacates the office. There is no express provision of the Code or statute allowing a supersedeas in proceedings of this character, nor, indeed, is there in any other case. The right to suspend a judgment by the execution of a bond pending the appeal is allowed in general.terms by the Code; and with few, if any, exceptions, every judgment for the recovery of money, whether in civil or criminal proceedings, that may be appealed from may be suspended pending the appeal; the general rule being that a supersedeas does not annul the judgment, but only suspends its efficacy while it continues in force. Runyon v. Bennett, 4 Dana, 598, 29 Am. Dec. 431. This being conceded, it is said that as the judgment of ouster was self-executing, complete in itself when it was entered, requiring no other action to enforce it, the appeal bond could not annul, vacate, or set it aside; hence it did not have the effect of suspending that much of the judgment. And our attention is called to a number of authorities holding that where a judgment or decree executes itself — that is, where no act of a ministerial officer is necessary to pnt it into effect. — the supersedeas does not alter the state of things created by the judgment from which the appeal is prosecuted. Elliott on Appellate Procedure, sections 392, 393; State v. Woodson, 128 Mo. 497, 31 S. W. 105; Walls v. Palmer, 64 Ind. 493; Fawcett v. Superior Court, 15 Wash. 342, 46 Pac. 389, 55 Am. St. Rep. 894; Allen v. Church, 101 Iowa, 116, 70 N. W. 127. It may be conceded that under the rule prevailing in this State as to the effect of a supersedeas that if a judgment is what may be called self-executing, requiring no process or further order of court to make it effective, there would be nothing that the supersedeas could .operate upon to suspend; and hence the judgment would necessarily become at once effective, although an exception to this general rule seems to have been made in the matter of injunctions. Smith v. Western Union Tel. Co., 83 Ky. 269, 7 Ky. Law Rep. 22; Elizabethtown R. Co. v. Ashland St. Ry. Co., 92 Ky. 478, 22 S W. 855, 15 Ky. Law Rep. 258. Conceding that a judgment of court vacating an office is self-executing in the sense that no further action is needed to make it effective, nevertheless the Constitution and statute giving the officer a right to appeal to the Court of Appeals from the judgment evidently means that he shall have the right to appeal from both the judgment inflicting the fine and the judgment of ouster, and the right to stay the entire judgment pending the appeal. Indeed, it might well be said that so much of the judgment as vacates the office is merely incidental to and follows that part of the judgment imposing the fine, — as, if the officer is not fined, he cannot be removed from office; if he is fined, his removal follows as a matter of course. Again, it would be giving to the convicted officer very inadequate relief to say that he might appeal from the judgment vacating his office, and yet be deprived of the. office by the judgment of the inferior court, although that judgment might be reversed and entirely set aside by the judgment of the appellate court. Then, too, if the judgment of ouster became at once effective upon entering the judgment in the lower court, a vacancy in the office would exist that might be at once filled by the appointing power, and if afterwards, and before the term expired, the judgment vacating the office was set aside by the appellate court, it would seem necessarily to follow that its effect would be to restore the ousted officer to his office. This would result in having two claimants for the same place, and cause unnecessary confusion and disorder in the conduct of the public business.

It is suggested that when a public official has been indicted and found guilty of a grave offense, and' judgment has been pronounced depriving him of the office in the conduct of which hd committed the malfeasance, he ought not thereafter ta be allowed by suspending the judgment to discharge the duties of the office during an appeal; thereby defeating the course of the law that took from him the office he had disgraced. A sufficient answer to this is that, in the administration of justice, under our procedure, no judgment of an inferior' tribunal can be deemed to finally adjudge the rights of the parties when the person against whom it is entered prosecutes within the time and in the manner allowed by law an appeal to a court having jurisdiction to- revise it. Neither public policy nor the ends of justice would be promoted by denying to a public official the right to test the validity of a judgment against him; and it is difficult to understand upon what principle it can be maintained that such officer may appeal from so much of the judgment as imposes a trifling fine, fully protecting his rights by the execution of a bond, and yet be denied the more important right to save his office until the judgment of the lower court can be reviewed.

Upon the whole, we are of the opinion that the fair meaning of the constitutional provision allowing an appeal carries with it the right to suspend the judgment; and that, during the pendency of the appeal, neither the judgment imposing the fine nor vacating the office becomes effective.

Wherefore the judgment is reversed, with directions for proceedings in conformity with this opinion.