Case 82 — Indictment against W. R. Wood for Malfeasance in Office as County Clerk for Unlawfully Issuing Liquor License.

Nov. 18.

#### Commonwealth v. Wood.

APPEAL FROM TODD CIRCUIT COURT.

Judgment Sustaining Demurrer to Indictment and Commonwealth Appeals.

Affirmed.

County Clerk — Misfeasance—Indictment—Sufficiency. -

Held: An indictment of a county clerk for unlawfully issuing a license to sell liquor in a local option precinct, which fails to aver that his action was from a corrupt motive or fraudulent, .or that he knew at the time that it was unlawful for him to. issue the' license, is insufficient.

CLIFTON J. PRATT, M. R. TODD, JAS'. R. MALLORY, attorneys FOR APPELLANT.

Appellee was indicted as clerk of the Todd County Court for unlawfully issuing a license to Cyrus Greenfield to retail spirituous liquors in the town of Trenton in said county after a certificate had been filed in his oifice by the canvassing board of said town certifying that the local option law had been adopted in said town. We contend that the appellee having this official information in his office, and knowingly issued a license to an applicant to sell liquors in a town where the sale has been prohibited by the expressed will of the voters therein at an election held for that purpose, is guilty of misfeasance in office ,m failing to obey and discharge a.known duty by refusing to issue the license.

We contend that it is not necessary to allege that he was actuated by a corrupt motive in doing this act, but that: the failure to discharge a known duty is a sufficient allegation to reader him liable for misfeasance in office. ■

We further contend that though the license *mayI*have been granted by him upon the order or by the direction of the trustees of the town of Trenton will, not excuse him, for the reason that he had before him a record in his office saying it was un*749lawful to sell liquor in said town and he owed it to the public and it was his duty t'o recognize said record.

W'e further contend that an allegation that the appellee unlawfully and w'illfully issued such license without legal or rightful authority so to do is sufficient to include; corrupt motive and criminal intent.

14 Bush, 161; 19 Am. & Eng. E-ncy. of Law, 502; 2 Am. Dec., 629; Ky. Const., secs. 124, 227; Ky. Stats., sec. 3748; Bishop’s statutory Crimes, sec. 164, .p. 155; 23 Ky. Law Rep., 1718.

PETREE *&*STANDARD, attobneys foe appellee.

POINTS ANiD AUTHORITIES.

1. It is neeessiary to charge- in -the indictment that appellee issued the license corruptly, or with a knowledge that it was unlawful for him to do so. The indictment does- not charge that appellee acted from a corrupt or improper motive. Scott v. 'Cook, 1 Duvall, p. 315; Com. v. Arnold, 3 Litt., 309; ¡Com. v. Barney, 24 Ky. Law Rep., p. 2352; Lynch v. Com., 25 Ky. Law Rep., p. 2180; Com. v. McPeek, 14 Ky. Law Rep., 215.

2. The indictment having attempted to set forth -all of the material steps required by the statute in order to make a valid option law, and having failed to set forth certain material requirements- of. the statute, is bad.

(a) It attempts to set fortb^not only every order taken in regard to the election, but all the acts ¡of the sheriff. Having attempted to set forth the acts of the sheriff, it should have alleged that notice of the holding of the election was given by him as required by statute, and the failure to- charge -this is fatal to the indictment. Com. v. Cope, 21 -Ky. Law Rep., 845.

(b) The local option law requires’the certificate of the -board of canvassers to be placed on the order book at the next regular term of the county court after it is completed; the indictment •discloses that it was not so placed on record until nearly tw» years after the holding of said election. This long delay is fatal to the indictment, especially when unexplained.

' 3. The allegations of the indictment do not charge a public offense. Young v. Com., 14 Bush, 161; Payne v. -Com., 14 R., 303; Schweaman v. Com., 99 Ky., 296; ‘Com. v. Hélback, 19 Rep., 278-; Adams v. Stephens, 88 Ky.,- 443..

4. Appellee as clerk of the Todd County -Court is not subject to indictment for malfeasance .in office. (Const., sec. 227; Broaddus v. Broaddus, 10 Bush, 299; Patterson v. Commonwealth, 86 Ky., 314; Parrish, &c., v. Ferguson, &c., 83 Ky., 18; Com. v. *750Chambers, 1 J. J. Marsh., 108; Ky. Stats., sec. 3748; Com. v. Williams, 79 Ky., 43; Consti., sec. 124.

Opinion of the court by

JUDGE O’REAR

Affirming.

Appellee' was indicted by tbe grand jury of Todd county for malfeasance in office. It is charged that he, as county court clerk of Todd county, “willfully and unlawfully” issued a liquor license *to*one Greenfield *to sell*liquor by retail in the town of Trenton, when previously tjhat town had, at an election regularly held, voted in favor of the local option law, and that the result of the vote, duly certified, was of record in his office. The only question presented that we have felt called upon to decide or consider is the sufficiency of the charge as made in the indictment. It is not averred that appellee’s action was from a corrupt motive or fraudulent, or that he knew at the time that it was unlawful for him to issue the license. While malfeasance in office is defined generally to be the wrongful or unjust doing of some official act, which the doer has mo right tio perform, or which he has stipulated by contract not to do, it is essential that an evil intent or motive must accompany the • act, or that it must have been done with such gross negligence as to be equivalent to fraud. As said in Bishop’s New Criminal LaW, sectioni 972: “The court requires evidence of something more than a mere mistake of duty. There must be corruption. This also is n/ecessary to sustain an indictment.” And in the same author’s work on New Criminal Procedure, section 834, it is said: “Corruption, in some form of words, must generally be averred; it is believed, always at common law.” An honest mistake of an officer concerning the discharge of an official duty, although it may be the result of ignorance, ought not to, and can not, unless the express terms of the statute impel to such construction, *751make liim a criminal. If the act is done with a corrupt purpose, or from a corrupt motive, or with a knowledge by the officer at the time that his official act is a violation of the law, or if the act is done so- negligently or carelessly or recklessly as to show an utter want of care or of concern, and such as would be1 tantamount to a fraud, and therefore could be ,said to be fraudulently done, his act will be a malfeasance, but not otherwise. Commonwealth v. Arnold, 3 Litt., 309; Commonwealth v. Barney, 24 R., 2352, 74 S. W., 181; Lynch v. Commonwealth, 24 R., 2180, 73 S. W., 745; Commonwealth v. McPeek, 14 R., 215, 20 S. W., 220; Commonwealth v. Rodes, 6 B. Mon., 171; Commonwealth v. Chinn, 110 Ky., 527, 22 R., 1921, 62 S. W., 685.

Wherefore the judgment' of the circuit court sustaining the demurrer to the indictment is affirmed.