
    Case 60 — Proceeding by the Commonwealth Against Claude Chinn to Remove Him from His Office as Clerk of the Fayette County Court.
    Commonwealth v. Chinn.
    Judgment- Acquitting the Defendant of the Charges Preferred Against Him and Refusing to Remove Him from Hts Office.
    Removal from Office — Filing of Information by Attorney General — Supplemental Information — Farming Office — False Report as to Payment to State Auditor — Absence of Corrupt Motive.
    Held: 1. To authorize the Attorney General to file information in the Court of Appeals for the removal of a cleric of court, he need not first obtain leave of court; the institution of the proceeding being in his discretion.
    2. After the court has acquired jurisdiction by the filing of the information, it may regulate the filing of amendments, under Civil Code Practice, section 134.
    3. A supplemental information charging the commission of an offense after the institution of the proceeding will not he allowed, an agreement having previously been made for the talcing of the proof by deposition instead of orally, as contemplated by the Code of Practice, and the charge made in the supplemental information not being covered by that agreement.
    4. Defendant, a County Court Cleric, having fallen behind in his payments to the StateAuditor by reason of the failure of persons employed in his office to make proper entries, in his cash hook of money received, made an arrangement with the surety in his bond, a security company, by which the company advanced the money to pay this shortage, upon condition that defendant would employ more systematic methods, and to that end it was agreed that defendant would appoint a deputy to have exclusive contro’l of all money paid into the office, to be by him deposited in bank to defendant’s credit as clerk, ,and checked out by the deputy in payment of current expenses and the dues of defendant to ■the State, the surplus of the fees, which belonged exclusively to defendant, to be used in reimbursing the security company. Held, that as defendant did not agree to surrender the control of his office, and the agreed changes in the management of the office were legitimate and proper, the arrangement made does not authorize defendant’s removal from office.
    5. The fact that defendant stated in his regular tri-yearly report to the Circuit Court, which was sworn to by him, that he had paid to the State Auditor the amount due by him to the State when ki fact he had not done so, does not authorize his removal from •office, as he held the money awaiting the final determination of a contest then pending as to who was the rightful Auditor, and did upon the determination of that contest pay over the money; the report being made upon the advice of friends, and without any corrupt motive.
    JUDGES PAYNTER, GUPPY and WHITE, dissenting.
    ROBT. J. BRECKINRIDGE, Attokney General, and MAURY KEMP-ER fob Commonwealth.
    The ground of the general demurrer to the first count in the information, is, that no forfeiture of an office prescribed by a statute can take effect until there has been a conviction before a jury upon an indictment; and if such is the law applicable to such cases, then there is no necessity of proceeding by way of information before the Court of Appeals, because if the party is indicted and convicted of an offense that works a forfeiture of the office, then that forfeiture takes effect as soon as the judgment of conviction is rendered. If the remedy by indictment is not merely cumulative, then the only means of removing a clerk of a-county court from his office, is from information prosecuted by thé Attorney General to this court.
    As to the second count in the information: It is distinctly alleged that the money alleged to have been collected by the clerk had never been remitted to the Auditor, but was retained by him in his own custody; that the report was false at the time he made oath to it and was so known to him when the nath was administered, and that by reason of the report he obtained credit of said firm falsely as having been paid and remitted to the Auditor.
    By section 449, Criminal Code, where a clerk has been convicted by a judgment of a court of competent jurisdiction, of an ohcnse which causes, hy reason of the statute, a forfeiture of his office, a transcript of the record may be filed hy the Attorney General as evidence of the information upon which his removal is based, and thereupon, the case proceeds without even a prosecutor. It follows, therefore, if there has been no conviction, and a cause of forfeiture exists, by reason of the statute, the court may hear evidence and remove him from office, if any cause for reversal is made out hy the facts proven, and in such ease this court must pass both on the law and facts.
    BRECKINRIDGE & SHELBY and' MATT WALTON, Attorneys foe DEFENDANT.
    (No briefs in the record.)
   Opinion of the court by

JUDGE BURNAM

Acquitting the defendant.

This is a proceeding- to remove tbe defendant, Claude Chinn, from the office of clerk of the Fayette County Court. The application is made to this court under section 124 of the Constitution, and in conformity with the provisions of sections 442-450, inclusive, of the Criminal Code. Section 442 of the- Criminal Code provides: “'That clerks of the court of appeals, and clerks of circuit, county, and police and city courts, may be removed from office by the court of appeals, upon a written information signed and presented in said court by the attorney general, charging ihe following causes of removal: (1) Any act, omission, or neglect by such clerk, for which the statutes have prescribed a forfeiture of office. (2) Any malfeasance in office or neglect of official duty that the court may consider sufficient cause of removal.”

By the constitutional provision above referred to, this court is made, in this peculiar class of cases, the judges of the facts as well as the law, and two-thirds of the members must concur in the sentence.

Tlie attorney general .filed a -written statement of the charges upon which he relies for the removal of the defendant from office, on the lf>th of October, 1900. They are, viz.: “(1) That the defendant during his present term of office did, for a valuable consideration, farm out, sell, and transfer to the Fidelity & Deposit Company of the State of Maryland his office as clerk of the Fayette County Court, with all of its emoluments, profits, etc., and has surrendered to said company and its authorized agents the custody, possession, and control of said office, including its records, books, and papers, and the said company is now conducting said office as if it were the clerk of the Fayette County Court. (2) It is charged that the said Chinn, on the 4th day of June, 1900, made his report of taxes and moneys, collected in conformity with the statute, that said report was produced in the Fayette Circuit Court by the defendant, Chinn, and approved by the circuit judge, Watts Parker, and its correctness and truth sworn to by 'the said Chinn before the clerk of the Fayette Circuit Court;'that in said report it is stated by said Chinn that he had collected $8,539.75, and had remitted to the. auditor of public accounts $5,368.81, when in truth and in fact he had made no remittance, but retained the money in his own pocket; that said report was false, and so known to the defendant, Chinn, when he made oath thereto, and by reason of said report he obtained a credit of said sums so falsely and wrongfully entered by the defendant as having been paid and remitted to the auditor.” On the 30th of October, a general demurrer to each paragraph of the information was overruled. Thereupon the defendant entered a plea of not guilty to each paragraph of the information, and by consent, both of the attorney general and of the .defendant, entered of record, it was ordered that all testimony which was to be read upon the trial of the information was to be by depositions, and the case -set for trial on the 11th day of March, 1901. On the 31st day of January, 1901, the attorney general hied supplemental information, charging that, since the institution of this proceeding, various additional grounds for the removal of the defendant from office had arisen, and specially charged that in the tri-yearly report made by him to the Fayette Circuit Court, on the 1st day of December, 1900, he failed to account for $153.10 of'taxes collected by him. When the case was called for trial, the defendant moved to strike this supplemental information from the file on the ground that it had been filed without leave of court, and was not covered by the agreement that the testimony to be read on the trial of the case should be by deposition.

Before proceeding to an examination of the charges in the information, it will be necessary to dispose of several preliminary questions suggested by the attorney for the defendant. First, it is contended that under the rule laid down in the case of Com. v. Barry, 3 Ky., 237, the attorney general had no authority in law to institute this prosecution without first having obtained leave of court to do so, upon probable cause shown. The constitutional provision in force at the date of the proceeding against Barry in 180S was substantially the same as that embodied in our present Constitution; but there was at that time no statute regulating the mode of procedure, and in that case the court decided that the proceeding must be instituted by the leave of court, and that probable cause must be shown to obtain that leave. And this method seems to have been followed in the later case of Com. v. Arnold, 13 Ky., 309, and Com. v. Rodes, 31 Ky., 595. But, subsequently to the determination of these eases, the Legislature has prescribed the mode of proceeding in this kind of cases, which in most respects is in accord with the rules adopted by this court in the case of Com. v. Barry, but there is nothing requiring the attorney general to first obtain leave of the court to file information. On the contrary, the institution of the proceeding is left to his discretion. But having once filed the information, and the court having thereby acquired jurisdiction of the proceeding, they are entitled to regulate the questions of amendment, under section 134 of the Civil Code of Practice.' And as the offense charged in the supplemental information is alleged to have occurred after the institution of the-proceeding, and is not covered by the agreement that the testimony in the case should be by deposition instead of by parol, as contemplated by the Code, a majority of the judges are of the opinion that this amendment should not be allowed, and that the offense therein charged has not been considered upon this hearing, and the amended information is stricken from the file.

We will consider the charges made in the original information, and the proof offered in support thereof. First, that the defendant has sold, or let to farm, his office to the Fidelity & Deposit Company of the State of Maryland, in violation of section 3740 of the Kentucky Statutes. The testimony on this point conduces to show that during the month of July, 1900, the defendant ascertained, from the reports made to Mm by expert accountants employed by him to check up his accounts, that he had fallen behind to a considerable extent in his payments to the auditor of certain items of revenues due the State, which had been collected by persons employed in his office, and which they had neglected to enter upon the cash book for that purpose, and that upon the ascertainment of this fact he immediately notified the Fidelity Company, who were his securities upon his official bond, and asked their assistance in raising the money necessary to pay off this indebtedness. After full investigation, the security company agreed to advance the money necessary for this purpose upon the condition that the defendant would employ more thorough and systematic methods in looking after the financial side of his office, and to this end it was agreed that the defendant would employ a deputy, who should have the exclusive charge of moneys paid into the office, to be by him deposited in the bank to the defendant’s credit as clerk of the Fayette County Court, and who should have the exclusive right to check on this account in payment of the current expenses of the office and the dues of the defendant to Jhe State; this deputy being required to give bond for the faithful discharge of his duties. Defendant also agreed that any surplus arising from the fees of the office,, which belonged exclusively to him, should be used to repay to the company the money so advanced by them; but there is no evidence that the defendant made any agreement to sell, farm, let, or surrender the control of his office to the company. On the contrary, the testimony shows that from, this time' on he has given his office more •attention than ever before, and th-at, without let -or hindrance from anybody, he has discharged old clerks and deputies, and employed new ones to fill their places, as-his interest and the efficiency of the office seem to require. There is no charge or proof that the shortage in defendant’s office was due to any willful or intentional wrongful act or neglect on his part, and it seems to us that the changes in the management of the office suggested by the security company and agreed to by defendant were such as should have obtained in the management of the county clerk’s office in a large and populous community, and were in all respects legitimate and proper; and, while the testimony conduces to show some degree of carelessness on the part of the defendant in the administration of his office previous to this time, we do not think that it was sufficient to authorize the infliction upon him of the severe penalties imposed by the statute, even, if they were made a ground of complaint, which has not been done in this proceeding. The court is unanimously of the opinion .that this charge has not been established by the proof.

There is no controversy as to the facts contained in the second charge of the information. It is admitted by the ■defendant that he swore to and filed the tri-yearly report, a copy of which is filed with the information, in the Fayette ■Circuit Court, on the 4th day of June, 1900; and, in explanation of this action on his part, he says that Mr. .Sweeney qualified and took possession of the office of Auditor of Public Accounts for the State of Kentucky on the 1st day of January, 1900, and that subsequently thereto Mr. Coulter, wflo was the rival candidate for the office ..at' the preceding November election, instituted a contest therefor before the election commission, and that, after -the determination of the contest by the-election commission in favor of Coulter, he instituted a suit for the possession of the office in the Franklin Circuit Court, and that this litigation as to who was the rightful auditor was still pending and undisposed of in the court of appeals of Kentucky on the 4th day of .June, 1900; and that Sweeney and Coulter both claimed to be the rightful auditor, and each had given him written notice, warning him not to pay the money in his hands due the State to the oí her, and -threatening him with suit in the Franklin Circuit Court if he did so; that, under these circumstances, he counseled with his attorney and other friends who advised him not to pay any more money to either of the claimants until the-contest was finally settled; that, while this question was still undetermined and pending in the courts, the time for-making his tri-yearly report to the Fayette Circuit Court, in fhe presence of the grand jury came around, and that he went to see the judge of the Fayette Circuit Court, and explained to him that he had not paid to the auditor the-money in his hands due the State which he had collected, after the institution of the contest, and told him that the' deputy in the office whose duty it was to make out these-reports upon the printed blanks furnished by the auditor-had made out the report so as to show the net balance in his hands less the amounts paid by monthly remittance to-the auditor and to the trustee of the jury fund, but that' as a matter of fact he had not actually remitted the money to the auditor, but had retained it in his possession to await the determination of the litigation as to who was. the rightful auditor; and that the circuit judge said to him-that he did not know what to tell him to do, but that he had better let his report be filed, and that he accbrdinglydid so. He also states that he had given the same information to the clerk of the circuit court at' the time he swore to the report. And these statements of the defendant are not contradicted. It also appears that after the-final determination of the contest for the office of auditor by this court, and after the defendant had ascertained correctly the amount of his indebtedness to the State, he paid all of such indebtedness, including- a large amount by way of penalties. There is no allegation that, at the time this information was filed by the attorney-general, the defendant owed the State a dollar, nor is there any charge that be was actuated by any corrupt motive in filing tbe report with the circuit clerk. ECe certainly could not expect to get any credit for money paid to the auditor by filing this report in the circuit court clerk’s office, as such -credit could only be given by the auditor on his books. In view of the entire absence of evidence of a corrupt motive on the part of the defendant in making the affidavit referred to, and also of the fact that no substantial injury accrued to the State by reason thereof, a majority of the judges of this- court are of the opinion that a removal from office should hot be adjudged on either of the charges contained in the information filed by the attorney-general. It is therefore adjudged that the defendant be acquitted of the charges that have been preferred against him as clerk of the county court of Fayette county

Chief Justice Paynter and Judges White and Guffy dissent.

Dissenting opinion by Chief Justice Paynter in which Judge White concurs:

The. law required Claude Chinn, clerk of the Fayette County Court, to make a report-of public money coming to his hands to the Fayette Circuit Court, over which Judge Watts Parker presides. On June 4, 1900, he made a report showing, the amount he had collected from March 1 to June 1,1900, in which he credited himself with $5,868.81, “amounts paid by monthly remittances to auditor.” He admitted in his testimony that he had not remitted any part of that sum to the auditor, that it was due the State at that time, and that he knew that fact when he swore to the report. So he confesses that he swore falsely, and that he knowingly did so, and to an official report which he was required to make as clerk of the county court. No .jury which desired to preserve its reputation for fairness and integrity could find the defendant not guilty, if the question was submitted to it whether he had been guilty of false swearing by knowingly and intentionally swearing to-the report in question. To find him not guilty would be in disregard of his plea of guilty, because he says he swore to the report, and knew it was false when he did so. His offense involves as much turpitude as any offense of which he could be guilty. It not only shows degradation, but an utter lack of official integrity. He did not commit this grave offense -without a motive. When we consider what his duties were with reference to the public money in his hands, his motive for making the false report is easily discovered. .Section 4242, Kentucky Statutes, reads as follows: “Each ■circuit and county clerk shall make out an account of all taxes and other public money received by him up to the first day of each circuit court, and said report shall show in detail of whom said moneys were received, for what and when received, and shall be verified by him and entered of record; and he shall pay over from the public money remaining in his hands to the trustee of the jury fund, until otherwise provided by law, so much thereof as the court may, by order, direct, as being necessary for the payment of the jurors; and the original account, certified, with the order of the court, shall be transmitted with the balance of the fund to the auditor. The clerk shall be allowed five per cent, commission on said sums reported and paid by him. If any clerk shall fail to perform the duties required of him in this section, he shall be liable on his official bond, with twenty per cent, damages thereon, which may be recovered by action in the name of the Commonwealth in any court of competent jurisdiction.” A provision of this section required that the defendant should pay to the trustee of the jury fund such sums as the court directed him to pay. It is then further provided that “the original account, certified, with the order of the court, shall he transmitted with the balance of the fund to the auditor.” Át the time the report was made there was a defalcation in the defendant’s office. If he had not paid the'money due the State, the grand jury then in session, or soon to assemble, might have indicted him therefor. At the time the report was made both Coulter and Sweeney were claiming to be discharging the duties of the office of auditor. The report did not say to which of the parties claiming to be auditor the remittance had been made, and the one ultimately declared by the courts to be auditor might have ■concluded that the payments had been made to the unsuccessful claimant. In this way the defendant knew the fraud would be overlooked for a time, if not entirely, in the confusion resulting from the dual administration of the office.

From my point of view, dt is wholly immaterial whether the device to defraud was skillful or successful, as the turpitude is just the same as it would have been if the scheme had been cunningly devisfed and successfully practiced. The ■defendant had collected public money, and was compelled to make a report. If he desired to pursue an evil way, he had a choice between two that wrere open to him — either report that he had not collected it', or that he had, and disposed of it as the law directs. Knowing the grand jury could' at once discover the fraud if he reported he had not collected it, bence he concluded it was safer to report that he had collected it, and paid it as the law directs, and thus take the chance of the successful claimant to the auditor-ship making the discovery. While he says he had the money at the time the report was made, and knew he owed it to the State, it is certain he did not pay it for weeks after the court had placed Coulter in charge of the auditor’s office, and not then, until he was sued for it. That there was a contest over the office of auditor was no excuse for making and swearing to a false report. Had he made a report showing the money in his hands due the State, and withheld payment until it was determined* to whom it should be paid, no one would think it right to remove him from office therefor.

As an excuse for, or in palliation of, the offense of false swearing, the defendant says that he explained the matter to Mr. Rogers, clerk of the circuit court — that the amount reported paid had not been paid — who advised him to take-it to the judge of the circuit court. He also says that he went to see the judge about the report, and explained the-situation to him. He testifies he said to the judge: “I have made my report, and do not know whether to put it' in or not, for I have not really paid this money to the State that I have stated paid in this reportand then the judge said: “Well, I do not know what to tell.you to do-about it, but you had better let it go on in.” The law required Judge Parker to examine the report made by the defendant, and, if found correct, to approve it.- His indorsement shows that he examined and approved it. I can not believe, on the testimony of the defendant, that Judge-Parker advised him to make and swear to -a false report,, or that he approved it when he had been told by him that it was false. However, if it be true that the judge did what the defendant says he did, it neither excuses nor palliates the offense, but shows design, volition, and deliberation. A -person should not escape punishment for false-swearing because he told some one that he was going to do it, and that one advised him to do so. If the claim of the defendant is true (which I do not believe) that he was advised by the circuit judge to make a false report aud swear to it, the reason is that much greater for punishing the first one arraigned and proven guilty, to the end that other public officials will know they can not be guilty of perjury or false swearing and escape punishment. In Com. v. Barry, Hardin, 242, the court held that a clerk should be removed from office “for erasing from the panel of grand jurors . . . the name of Benjamin Field, after it was returned by the sheriff, without the knowledge or consent of the court, and from private and personal motives.” The clerk believed that the grand jury would have before it the question of returning an indictment against him, and, believing the grand juror whose name he erased was- prejudiced against him, he erased his name. In Com. v. Rodes, 6 B. Mon., 371, it was held that it was a cause for removal of a clerk because he had made false reports as to the amounts of public money he had received. The sums not reported were small, but the court held that the habitual defalcation exhibited by the facts established authorized and required the presumption that the sums retained, and not accounted for, were retained for sinister and selfish purposes. If the clerk in that case had made a false report as to a small amount, and claimed it was a mistake in doing so, perhaps the court would have excused him.

In my opinion, we have a plain duty to perform. The jurisdiction to try this class of cases was conferred upon this court because it was believed that it would, without fear or favor, dispose of such cases as- justice and the public interests required. .It was believed to be a' surer way of securing the removal of unworthy and offending clerks than it would be to rely upon inferior and local tribunals to do so. Evidently, the framers- of our Constitution believed this court would realize it was not its- province “i;o dispense mercy, but to pronounce the judgment of the law.” My opinion is that, from the reasoning of the able judges in the Barry and Rodes cases, they would, if this case had been before them, have found the defendant guilty on the facts proven, and doubtless the distinguished lawyers who practiced in those cases would have been surprised at any other finding. I sincerely desired that a state of facts would be established which would authorize me to vote against the defendant’s removal from office, but this has not been done. To do so I would, in effect, say that perjury or false swearing by a clerk of a court, in the course of his duties as such, was no offense, if it was detected, and the State saved from being defrauded. I would, in effect, say to the clerks of all the courts of the State i “You can make false reports of the collections and disbursements of public moneys with impunity, unless thereby you succeed in defrauding the State.’’ In my opinion, to so vote would be to reflect upon the judgment and wisdom of the framers of our various Constitutions in conferring upon this court the jurisdiction to try cases like this one. For the reasons given, I think the defendant should be removed from the office of clerk of the Fayette County Court.

Whole court sitting.  