
    Case 51 — INdictment Against S. A. Pate fob Becoming Interested in a Road Claim While Holding the Office of Road ( Supervisor.
    Commonwealth v. Pate.
    APPEAL FROM BRECKINRIDGE CIRCUIT COURT.
    Judgment Dismissing Indictment and Commonwealth Appeals.
    Reversed.
    Officers- — Presumption that Officer Has Taken Oath.
    Held: Under Kentucky Statute, section 4332, providing for the punishment of any road supervisor who shall become interested in any road or bridge order or certificate, or any claim gx'owing out of such work, a road supervisor can not escape punishment on the ground that he had not taken the oath of office, as it will be conclusively presumed, as he was discharging the duties of the office and receiving its emoluments, that he had taken the oath, such a presumption being necessary for the protection of the public.
    ROBT. J. BRECKINRIDGE, Attorney General and WEED S. CHELF, Commonwealth’s Attorney for appellant.
    The defendant S. A. Pate was indicted in the Breckinridge Circuit Court, under section 4332, Ky. Stats., for becoming interested in road claims while acting -as Supervisor of Roads in Breckinridge county.
    Two questions are presented:
    1. Is the indictment good on demurrer?
    2. Should the defendant’s motion for a peremptory instruction have been sustained?
    Appellee demurred upon the ground that sec. 4332 only applies to work let out by contract, and the indictment not specifically alleging the kind -of road work, it was demurrable. The court overruled the demurrer upon.the idea that the spirit and meaning of the section was to apply to any work on roads worked under the tax system, no matter by what process they were worked.
    The legislative intent in passing this section, certainly was to prevent any -of those officers therein named from bartering trafficking, or becoming in any way interested in these road claims growing out of the work upon roads over which they had supervision.
    
      ' While the court was right in overruling the demurrer, we think the court was clearly wrong in sustaining appellees’ motion for a peremptory instruction. The reason for sustaining this motion was because the order qualifying the appellee supervisor did not show that he was sworn, or in other words* the oath was not “noted of record,” as the statute requires. We claim .that the law places the burden on him to show that fact. The .presumption is that all officers do their duty. While the provision .of the statute requiring the officers to he sworn may he mandatory, we think the provision requiring the oath “to he noted of record” is directory.
    AUTHORITIES CITED.
    Jones on Evidence, vol. 1, section 38, &c.; Nelson v. People, 23 N. Y., 293; Masters’ Exr. v. Bienker, '87 Ky., p. 1; Greer v. Wlntersmith, 9 Ky. Daw Rep., 96; Wood v. Terry, 4 haws N. Y., 80; Wood v. Morehouse, 45 N. Y., 368; 1 Laws N. Y., 405; 16 Ky. Law Rep., p. 63.
    D. R. MURRAY, Attorney yob appellee.
    H. C. MURRAY and D. H. SEVERS, oy counsel.
    Two questions are presented:
    
      First. Should the demurrer to the indictment have been subtained?
    
      Second. Did the court err in peremptorily instructing the jury to find the defendant not guilty?
    
      First. Under the statute there are two methods of working roads in counties in which a tax is levied, for that purpose; first by contract; second by hired hands, teams, &e., .Ky. Stats., ■section 4315, provides “that the supervisor with.the consent of the County Judge may designate certain roads and parts of roads, that are not to be let out as1 heretofore provided, hut which are to be worked and kept in repair eitner by special jontracts, privately made, .or by hands and teams hired by him, &e. The two methods are separate and distinct, section 4332, provides that it shall he unlawful for . . . the supervisor to become directly or indirectly interested in any contract for working roads or building or repairing bridges or buy or become interested in any road or bridge order or certificate growing out of sucb • work. This section clearly means contract work. Now, apply section 4315, with its distinction between contract work, and work by hired hands and teams and it is clear that the penalty Is only prescribed as against the officer becoming interested in claims growing out of contract work. If this construction is correct then the demurrer to the indictment should have been sustained. It affirmatively appears from the road .order set out in the indictment and from the averments of the indictment that the claim collected by defendant was not for contract work on the roads, hut was for pay for work actually done on the roads by defendants’ teams.
    :2. The peremptory instruction was proper. All the evidence introduced by the Commonwealth was the order of the Fiscal Court electing defendant supervisor of roads at a salary of $200 per year, an order of the County Court reciting that that the defendant appear and executed bond as supervisor,' that the settlement made with the administrator of the sheriff showed an allowance to defendant as supervisor a claim of $64Z.70 for. teams on road, and that said claim was approved by the court and paid to defendant. There is an entire absence of any proaf that defendant ever took the oath of office. Section 4314, Kentucky Statutes, provides that he shall take an oath for the faithful discharge of his duties and that the taking of the oath and the execution of the bond shall be noted on the order hook •of the ’court. This is wholly a technical prosecution. There is no effort, to prove and no hint that the money was not earned or that the county has been defrauded or has suffered any loss. The claim was a just one and was approved by the court, and it looks as i.f there were some motive of somebody demanding a persecution rather than a. prosecution of the defendant.
   «"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 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 demurrer 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 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 appo.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.  