By the terms of section 227 of the Constitution prior to its amendment in 1919, the office of any county officer automatically became vacant upon his conviction by indictment or prosecution "for misfeasance or malfeasance in office or willful neglect in discharge of official duties." Earlier constitutions contained the same provision but it has proven of little practical value in securing a rigid observance of law as was its evident purpose. Unquestionably this was due in part, as is pointed out in the court's opinion, to the difficulty, which amounts almost to an impossibility, of convicting or even indicting officials in their home county of delinquency in office no matter how flagrant or detrimental to public welfare.
In my judgment another efficient cause for the lamentable failure of this constitutional provision to secure a better service from county officials is to be found in the fact that this court, in the few cases that came to it involving the section, construed it so narrowly as to exclude from its provisions all misconduct upon the part of an officer while in office but not actually engaged in the performance of some duty specifically enjoined upon him.
The latest of these cases, Commonwealth v. Williams, 79 Ky. 42, was decided in 1880, and, upon authority of Commonwealth v. Barry, Hardin 238, and Commonwealth v. Chambers, 1 J.J. Marshall 160, holds that a county judge who was drunk in his office during office hours and while performing official duties, was drunk "individually" and not "officially" and that therefore an act of *Page 195 the legislature authorizing his removal therefor under section 227 of the Constitution was itself violative of that section.
The court's opinion herein concedes, as was inevitable, that the purpose of the legislature in proposing and the people in adopting the recent amendment to this section of the Constitution, was to secure, upon the part of county peace officers, better enforcement of some of the laws of the state.
It is the contention of the Commonwealth, as it is of Judge Dietzman and myself, that the purpose of this amendment was to secure better observance of all of the laws of the state. Stated otherwise and more concretely, the court's position is that the only purpose of the amendment was to make peace officers diligent in enforcing the law against others than themselves, while our view is that its purpose was to secure observance of the law by the officials themselves as well as by the citizens of the state. This difference of opinion as to the purpose of the amendment, as well as how narrowly it has been construed by the court, is best illustrated by the court's refusal to apply same to appellant's conduct upon the night of January 30, 1925, and which I need not again detail here, since it is fully set out in the court's opinion. That his conduct was most reprehensible and "may be denominated as gross misconduct," is admitted by the majority opinion which, nevertheless, holds that he cannot be removed from office therefor, because, though drunk and acting wrongfully in the performance of an official duty in the pool room, he was acting diligently and, after leaving the pool room, he was not acting officially but individually in trying to run a city peace officer away from his post of duty and putting him in such fear as to prevent him from arresting and lodging appellant in jail, as was clearly his duty, if as the court held, appellant was not then acting officially but only individually. That such a conclusion must have been rested upon extreme technicalities rather than upon a common understanding of appellant's duties to the public as chief peace officer of the county is not only self-evident but also confirmed by an examination of the court's opinion.
The opinion upon final analysis will be found to be based upon the assumption that the legislature in proposing and the people in adopting the amendment intended to perpetuate rather than to terminate the technical distinctions which led this court forty-five years ago *Page 196 in Commonwealth v. Williams, supra, to hold that a county judge who was drunk in his office during office hours and while engaged in the performance of official duty, was acting individually and not officially.
Just the reverse seems to me to be true even if, as the court holds, we must assume that in proposing and adopting the amendment the legislature and the people of the state had these old opinions in mind. This is, I think, fully demonstrated by the well known and marked difference in public opinion with reference to law enforcement and official duty that has taken place in the past forty-five years; but, more especially by the fact that the legislature in proposing the amendment carefully avoided use of any of the technical terms employed in the old section in describing causes for removal and provided simply that any peace officer could be removed for any "neglect of duty." It will be noticed the amendment does not even say "neglect of official duty," which in my judgment, is most significant and of itself sufficient to render inapplicable the technical distinctions between the official and individual acts of a peace officer recognized in the case of Commonwealth v. Williams, supra. Certainly if the legislature that proposed the amendment and the people who voted for it knew of these ancient opinions of the court, based upon outworn and discarded conceptions of the duty an official owes to the public, and desired to perpetuate rather than terminate them, they would at least have used the words "neglect of official duty" rather than simply "neglect of duty" as they did, Besides, even if this were not true, I confidently assert that it is the duty of this court to take judicial knowledge of the fact that public opinion has changed wonderfully and for the better in the past forty-five years as to the duties of not only public officials but of good citizens as well with reference to law enforcement. It therefore necessarily follows that the fact, if a fact, a public official was not guilty of neglect of official duty in 1880 by being drunk in his office during office hours and while actually engaged in the performance of official duty, has no place whatever in a consideration of the public opinion which in 1919 induced the legislature to propose and the people to adopt a change of policy toward such officials. I also feel warranted in saying that it is a matter of common knowledge that the public opinion upon the question has undergone such a change as to amount to a revulsion against the old and lax view of the matter. To my way *Page 197 of thinking, and I say it with all due respect not only to my associates who have the other view, but to the members of the court which rendered the opinion in 1880 in Commonwealth v. Williams, that that opinion exploits a legal technicality at the expense of common sense and, that it is little less than monstrous to make it and its century old predecessors of like import the basis of emasculating a present day amendment to the Constitution and invalidating in large measure the act of the legislature attempting to make effective that amendment. Whatever may have been the judicial view in 1880 and prior thereto about the duties of peace officers, I feel sure most if not all citizens who in 1919 voted either for or against the amendment, did so with the firm belief that it was the official duty of a peace officer, in consonance with his oath of office, to observe the law himself as well as to enforce its obedience upon others. Indeed it seems axiomatic to me that such must always have been the conception of good citizens everywhere, and I cannot believe that now or at any time since the foundation of this Commonwealth a contrary declaration was justified by enlightened public opinion, good morals, sound judgment or even the technicalities of the law.
Law enforcement like charity ought to begin at home. That an official who does not himself observe not only some law but all the law can efficiently enforce its observance upon others, is not now and never could have been anything more than a fiction of law. Assuming if we must such a fiction was required prior to the adoption of the amendment by the technical language employed in section 227 of the Constitution in defining the offenses for which a county officer forfeited his office upon conviction in a court of justice, the absense of any such technicality in the present amendment and particularly the employment of "neglect of duty" rather than "neglect of official duty" is, in my judgment, not only sufficient ground for assuming the legislature that proposed and the people that adopted the amendment intended to disregard all technicalities with reference to misfeasance, malfeasance or nonfeasance as well as neglect of "official" duty in which the original section had become enmeshed, but sufficient also to make it the mandatory duty of this court so to do in construing the amendment. Any other view seems to me to disregard not only the plain, simple and all inclusive terms of the amendment but also to exclude any consideration whatever of present day conceptions *Page 198 of the duty of public officials upon the present day vital question of law enforcement,
Then again, the legislature that enacted the law to make effective the amendment, had the other and broader view that it meant any neglect of duty, whether technically it amounted to misfeasance, malfeasance or neglect in discharge of official duties. The effect of the adopted construction is to render invalid much if not the greater part of the act. This of course is immaterial if the legislature clearly misconstrued its powers under the amendment, but only so, for if there is reasonable doubt about the matter, then, under another familiar rule of construction, the act just as clearly should be upheld. That the court's construction is at least of doubtful propriety I think its consequences as well as the language of the amendment clearly demonstrates. Under that construction the legislature is empowered simply to provide for the removal of county peace officers who fail to act diligently in protecting a prisoner, arresting a criminal for a crime committed in their presence or serving subpoena, but left powerless to provide for their removal without proof of an overt act of nonfeasance no matter how wrongfully or outrageously they perform any such duty, or even if they flagrantly and habitually conduct themselves while in office in such way to render them illy prepared when called upon to perform an "official" duty. The opinion itself admits there is much force in the other view but rejects it upon technical grounds that I am sure few if any of the members of the legislature that proposed the amendment or the people who voted for it had in mind, or ever heard or could have comprehended.
If what I have already said is true, as I believe it to be, it is hardly necessary to cite authorities to show this court has erred in giving to the phrase "neglect of duty" a technical rather than its ordinary and commonly understood meaning, so I shall refer and but briefly to only a few of the many and, so far as I can find, harmonious authorities on the subject. In Cooley on Constitutional Limitations, page 89, the object in construing a constitutional provision is stated to be, as even without this eminent authority it obviously ought to be, "to give effect to the intent of the people in adopting it." The same rule is thus expressed in 6 Rawle C. L., page 52:
"Words or terms used in a constitution, being dependent on ratification by the people, must be understood in the sense most obvious to the common *Page 199 understanding at the time of its adoption, although a different rule might be applied in interpreting statutes and acts of the legislature." (My italics).
In Penitentiary Commissioners v. Spencer, 159 Ky. 258, the court said: "The Constitution is not a technical instrument and should not be so construed as to defeat the substantial purposes of its adoption." Again, in Samuels v. Clinton,184 Ky. 104, the court said that the Constitution "adopted by a popular expression of the people at large, its terms should be given a meaning in accordance with their usual and customary significance." Again, in Gatton v. Fiscal Court of Daviess County, 169 Ky. 425, 184 S.W. 1, it was held that an amendment to the Constitution is not regarded as if it had been a part of the original instrument, but is considered in the nature of a codicil altering the original to the extent to which it is in conflict with it.
I therefore dissent from the court's construction of the amendment with its consequent impairment of the legislative act adopted to make it effective and from its rescission of the Governor's order removing appellant from office in so far as same is based upon his conduct on the night of January 30, 1925.
Judge Dietzman authorizes me to state that he concurs in these views.