542

PAGE v. O'SULLIVAN et al.

(Court of Appeals of Kentucky. Sept. 29, 1914.) 1. PRISONS (§ 7*)-OFFICERS-PRISON GUARDS. A prison guard is not a mere employé of the state, but an officer of it, so named by Ky. St. § 3813, and Act March 1, 1912 (Acts 1912, c. 50) § 2, amendatory thereof, providing for their appointment by the board of prison commissioners for a specified term, and their removal only after hearing on specified charges.

[Ed. Note.-For other cases, see Prisons, Cent.
Dig. §§ 6-9; Dec. Dig. § 7.*]

2. SUNDAY (8 7*) "WORK OF NECESSITY”—
PRISON GUARDS.

The sabbath work of attending at the pen-
itentiary, required of a prison guard, is one of
necessity, within Ky. St. §. 1321, prohibiting
other work on such day, so its performance by
him or the act of the board of prison commis-
sioners in compelling its performance is not a
violation of the law.

[Ed. Note. For other cases, see Sunday. Cent.
Dig. §§ 14-20; Dec. Dig. § 7.*

For other definitions, see Words and Phrases,
First and Second Series, Necessity.]

3. PRISONS (§ 8*) - PRISON GUARDS
AND COMPENSATION-"MONTH."

WORK

Ky. St. § 3813, fixing the compensation of prison guards at "$75 each per month," contemplates that they shall perform the necessary work of guarding convicts on Sunday; section 452 declaring that the word "month" shall be construed to mean a calendar month.

[Ed. Note. For other cases, see Prisons, Cent. Dig. § 10; Dec. Dig. § 8.*

For other definitions, see Words and Phrases, First and Second Series, Month.] 4. PRISONS (§ 8*) TRACTS-DUTIES. Even if the duties required of one as prison guard be considered as resulting from contract, his compensation being fixed by statute at a certain amount per calendar month, they will include necessary service of guarding convicts on Sunday.

year and a half as a prison guard at the Frankfort penitentiary, the plaintiff, E. C. SETTLE, J. After service of more than a Page, came to the conclusion that the defendants, Daniel E. O'Sullivan and others, missioners, had erred in the matter of reconstituting the state board of prison comquiring him to perform on the sabbath, as taining to his official position, so on Sunday, on other days of the week, the duties apperMay 31, 1914, he refused, when so ordered by them, to perform such duties on that day, whereupon they advised him that such refusal constituted insubordination and derelicresult in his dismissal as a prison guard. tion of duty, which, if persisted in, would the state board of prison commissioners from Thereafter he brought this action to enjoin requiring him to perform his duties as a discharge by them for his refusal to labor prison guard on Sunday, and to prevent his commissioners be compelled, by mandatory on Sunday. He also asked that the prison injunction, to appoint additional prison guards, so that "none of the prison guards will have to work more than six days in each the injunction, the defendants filed a generOn the plaintiff's application for al demurrer to the petition, but it was overruled by the circuit judge, and the injunecase is now before me, a judge of the Court of Appeals, on the defendant's motion to tion granted as prayed in the petition. The dissolve the injunction.

week."

[1] In view of the importance of the question involved, objections which do not go to

[Ed. Note. For other cases, see Prisons, Cent. the merits of the case will be waived, and the Dig. 10; Dec. Dig. § 8.*]

5. PRISONS (§ 7*)-NUMBER of Guards-DISCRETION OF COMMISSIONERS.

The discretion with which the law clothes the board of prison commissioners as to number of prison guards to be appointed cannot be interfered with by the court, at instance of guards, especially where no abuse of discretion or dereliction of duty is shown.

[Ed. Note.-For other cases, see Prisons, Cent. Dig. 88 6-9; Dec. Dig. § 7.*1

6. INJUNCTION (§ 12*)-THREATS.

The mere threat of members of the board of prison commissioners to prefer charges against à prison guard, if his refusal to work on Sunday is persisted in, none being filed, is no ground for injunctive relief.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]

Action by E. C. Page against Daniel E. O'Sullivan and others, constituting the State Board of Prison Commissioners, for injunction. The circuit court of Franklin county overruled a demurrer to the petition, and granted the injunction. in the Court of Appeals to dissolve it. MoDefendants move tion sustained.

This

the law and facts. Briefly stated, the plainmotion to dissolve the injunction decided upon tiff's contention is that the board of prison commissioners is without power to require him to render service as a prison guard on Sunday; and that, in the absence of such power, it can have no legal right to discharge him for failure to perform on Sunday the work imposed by the duties of his position. plaintiff is a mere employé of the state, and contention rests upon the assumption that that his only duty to the state arises out of through the board of prison commissioners; a contract of employment made with it and furthermore that the performance of the state. This contention is unsound. The such work on the sabbath as is required of plaintiff's duties to the state are not created him by the board is forbidden by the law of by contract, but are prescribed by statute and defined by the rules and regulations of the prison board, which the statute empow on guard is an officer of the state, so named ers it to adopt and enforce. In brief, a prisby section 3813, Kentucky Statutes, and see

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Ky.)

prison guards, did not understand the necessity of their guarding the convicts on Sunday, and equally unreasonable to say that the plaintiff, in applying for and accepting

tion 2 of the act amendatory of the statute, | son to say that the Legislature, in enacting of which that section is a part, approved the statute providing for the appointment of March 1, 1912, both providing that prison guards shall be appointed by the board of prison commissioners for a term of four years, and shall not be removed by the commissioners, "except after public hearing up- | appointment as a prison guard, was unaware on charges preferred against them, or any of them, in writing, for any of the following causes, to wit: Political activity, insubordination, dereliction of duty, violation of the rules of management of said prison, or cruelty to prisoners."

[2, 3] Being, therefore, an officer by appointment of the board of prison commissioners, under its control, and charged by law and the published rules and regulations of its adoption with the performance of duties, certain of which require him to attend at the penitentiary on Sundays, as well as other days of the week, for the purpose of guarding, preventing the escape of persons confined therein, subjecting them to proper discipline, and performing such other work as appertains to his official position, plaintiff cannot justify his failure to perform the duties or work demanded of him on the Sabbath upon the grounds, or any of them, urged by him. Obviously there is the same necessity for the performance of such work by him on Sunday as on other days; indeed, the necessity is greater, for if unguarded on Sundays, when they do not have to labor, the convicts would be freer to indulge in acts of lawlessness and have better opportunities for planning and effecting their escape from the penitentiary.

The sabbath work required of the plaintiff as a prison guard is therefore clearly a work of necessity; and, this being true, neither its performance by him nor the act of the board of prison commissioners in compelling its performance can be a violation of the On the contrary, it is such work as the law regards "work of necessity," in the meaning of that term as used in section 1321, Kentucky Statutes, which declares:

law.

"No work or business shall be done on the sabbath day, except the ordinary household offices or other work of necessity or charity.

In Commonwealth v. L. & N. R. R. Co., 80 Ky. 291, 44 Am. Rep. 475, it was held that it was not a violation of this statute for the railroad company to transport passengers upon its trains on the sabbath; and in the opinion the meaning of the words "work of necessity," contained in the statute, is thus defined:

The law regards that as necessary which the common sense of the country, in its ordinary mode of doing business, regards as necessary."

that the performance of such service would be required of him.

By section 3813, Kentucky Statutes, the compensation of the prison guards is fixed at "$75 each per month." The statute does not exempt them from the performance of their duties on Sunday; and section 452, Kentucky Statutes, declares that "the word 'month' shall be construed to mean a calendar month." So, when the plaintiff accepted the position as officer or prison guard, he knew that he would receive, for his services as such, $75 per calendar month, including Sundays, and that the performance of the duties appertaining to the position would be required of him on Sundays as on other days of the week.

In Words and Phrases, vol. 5, p. 4574, it is said:

"But the holding now seems to be that the word 'month,' in whatever connection it is used, signifies a calendar month, unless a contrary intent is indicated, and in many states this rule has been fixed by statute." Words and Phrases, vol. 5, p. 4575; Pyle v. Maulding, 30 Ky. (7 J. J. Marsh.) 207; Hopkins v. Chambers, 23 Ky. (7 T. B. Mon.) 261.

[4] If, however, the contention of the plaintiff that the duties that can be required of him as a prison guard result from contract, should be accepted, it would not exempt him from the performance of such duties on the sabbath, because the service or work is one of necessity, which the contract, if it can be said to rest on contract, as well as the nature of the employment, requires plaintiff to perform. Knowing all this when he accepted the position, and that his employment was by the calendar month, at a salary of $75 per calendar month, in the absence from the contract of a provision relieving him of the performance of his duties on the sabbath, he would have to perform them on that day as on any other day of the week.

In Robinson v. Webb, 73 Ill. App. 569, it was held that:

"Where a man enters the employment of a farmer as a farm hand at a stipulated rate per month, knowing that work in the nature of 'choring' will be required of him on Sundays, the law will not imply a promise to pay additional The agreement to labor wages for such work. by the month for a certain compensation includes such work, and, before a recovery could be had for it, it would devolve upon the plaintiff to show that there was a special agreement on the part of the employer to pay extra therefor."

A much narrower construction of the statAlthough there is no claim to additional ute than that given in the case, supra, would still leave room for the conclusion that it compensation for Sunday work made by the does not prohibit the service required of the plaintiff in this case, as it is incidentally inplaintiff by the board of prison commission- volved, it is deemed proper to say that, if It would be without the bounds of rea-based upon the claim of a contract with the

ers.

PAGE v. O'SULLIVAN et al.

(Court of Appeals of Kentucky. Sept. 29, 1914.) 1. PRISONS (§ 7*)-OFFICERS-PRISON GUARDS. A prison guard is not a mere employé of the state, but an officer of it, so named by Ky. St. § 3813, and Act March 1, 1912 (Acts 1912, c. 50) $2, amendatory thereof, providing for their appointment by the board of prison commissioners for a specified term, and their removal only after hearing on specified charges.

[Ed. Note.-For other cases, see Prisons, Cent. Dig. $$ 6-9; Dec. Dig. § 7.*]

2. SUNDAY (8 7*)-"WORK OF NECESSITY”— PRISON GUARDS.

SETTLE, J. After service of more than a year and a half as a prison guard at the Frankfort penitentiary, the plaintiff, E. C. Page, came to the conclusion that the defendants, Daniel E. O'Sullivan and others, constituting the state board of prison commissioners, had erred in the matter of requiring him to perform on the sabbath, as on other days of the week, the duties apper

The sabbath work of attending at the pen-taining to his official position, so on Sunday, itentiary, required of a prison guard, is one of necessity, within Ky. St. § 1321, prohibiting other work on such day, so its performance by him or the act of the board of prison commissioners in compelling its performance is not a violation of the law.

[Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 14-20; Dec. Dig. § 7.*

For other definitions, see Words and Phrases, First and Second Series, Necessity.]

3. PRISONS (§ 8*) PRISON GUARDS WORK AND COMPENSATION-"MONTH."

con

Ky. St. § 3813, fixing the compensation of prison guards at "$75 each per month," templates that they shall perform the necessary work of guarding convicts on Sunday; section 452 declaring that the word "month" shall

be construed to mean a calendar month.

[Ed. Note.-For other cases, see Prisons, Cent. Dig. § 10; Dec. Dig. § 8.*

For other definitions, see Words and Phrases, First and Second Series, Month.]

4. PRISONS (§ 8*) - PRISON GUARDS CONTRACTS-DUTIES.

Even if the duties required of one as prison guard be considered as resulting from contract, his compensation being fixed by statute at a certain amount per calendar month, they will include necessary service of guarding convicts on Sunday.

May 31, 1914, he refused, when so ordered by them, to perform such duties on that day, whereupon they advised him that such refusal constituted insubordination and dereliction of duty, which, if persisted in, would result in his dismissal as a prison guard. Thereafter he brought this action to enjoin the state board of prison commissioners from requiring him to perform his duties as a prison guard on Sunday, and to prevent his discharge by them for his refusal to labor on Sunday. He also asked that the prison commissioners be compelled, by mandatory injunction, to appoint additional prison guards, so that "none of the prison guards will have to work more than six days in each week." On the plaintiff's application for the injunction, the defendants filed a general demurrer to the petition, but it was overruled by the circuit judge, and the injunetion granted as prayed in the petition. The case is now before me, a judge of the Court of Appeals, on the defendant's motion to dissolve the injunction.

[1] In view of the importance of the question involved, objections which do not go to

[Ed. Note. For other cases, see Prisons, Cent. the merits of the case will be waived, and the Dig. § 10; Dec. Dig. § 8.*]

5. PRISONS (§ 7*)—NUMBER of Guards-DisCRETION OF COMMISSIONERS.

The discretion with which the law clothes the board of prison commissioners as to number of prison guards to be appointed cannot be interfered with by the court, at instance of guards, especially where no abuse of discretion or dereliction of duty is shown.

[Ed. Note.-For other cases, see Prisons, Cent. Dig. §§ 6-9; Dec. Dig. § 7.*1

6. INJUNCTION (§ 12*)-THREATS.

The mere threat of members of the board of prison commissioners to prefer charges against a prison guard, if his refusal to work on Sunday is persisted in, none being filed, is no ground for injunctive relief.

motion to dissolve the injunction decided upon the law and facts. Briefly stated, the plaintiff's contention is that the board of prison commissioners is without power to require him to render service as a prison guard on Sunday; and that, in the absence of such power, it can have no legal right to discharge him for failure to perform on Sunday the work imposed by the duties of his position. This contention rests upon the assumption that plaintiff is a mere employé of the state, and that his only duty to the state arises out of a contract of employment made with it through the board of prison commissioners; and furthermore that the performance of such work on the sabbath as is required of him by the board is forbidden by the law of Action by E. C. Page against Daniel E. the state. This contention is unsound. The O'Sullivan and others, constituting the State plaintiff's duties to the state are not created Board of Prison Commissioners, for injune- by contract, but are prescribed by statute tion. The circuit court of Franklin county and defined by the rules and regulations of overruled a demurrer to the petition, and the prison board, which the statute empow granted the injunction. Defendants move ers it to adopt and enforce. In brief, a prisin the Court of Appeals to dissolve it. Mo- on guard is an officer of the state, so named tion sustained. by section 3813, Kentucky Statutes, and sec

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tion 2 of the act amendatory of the statute, | son to say that the Legislature, in enacting of which that section is a part, approved the statute providing for the appointment of March 1, 1912, both providing that prison guards shall be appointed by the board of prison commissioners for a term of four years, and shall not be removed by the commissioners, "except after public hearing upon charges preferred against them, or any of them, in writing, for any of the following causes, to wit: Political activity, insubordination, dereliction of duty, violation of the rules of management of said prison, or cruelty to prisoners."

A much narrower construction of the statute than that given in the case, supra, would Although there is no claim to additional still leave room for the conclusion that it compensation for Sunday work made by the does not prohibit the service required of the plaintiff in this case, as it is incidentally inplaintiff by the board of prison commission- volved, it is deemed proper to say that, if It would be without the bounds of rea-based upon the claim of a contract with the

not be interfered with as here attempted. Especially is this so where, as in this case, neither abuse of discretion nor other dereliction of duty is alleged or shown.

state for the reasons above mentioned, these for the penitentiary, must limit their numstated in the case, supra, and other authori- ber to the requirements of the statute, and ties that might be cited, the recovery of such the needs of these institutions, and the disadditional compensation could not be allow-cretion with which the law clothes them caned plaintiff. On the other hand, if the plaintiff is an officer, it cannot be recovered, because the Constitution of the state (sections 161-235) provides that the salaries of public officers (whether the office be created by the Constitution or a statute) cannot be increased or changed during the terms for which they are elected or appointed, where such terms are fixed by law. In numerous decisions of the Court of Appeals, these mandatory provisions of the Constitution have been declared and enforced. Board of Ed. v. Moore, 114 Ky. 640, 71 S. W. 621, 24 Ky. Law Rep. 1478; Butler Co. v. James, 116 Ky. 575, 76 S. W. 402, 25 Ky. Law Rep. 801; Thomas v. Hoger, 120 Ky. 428, 86 S. W. 969, 27 Ky. Law Rep. 813; McNew v. Nicholas Co., 125 Ky. 66, 100 S. W. 324, 30 Ky. Law extra guards to do the same work on SunRep. 1147; Slayton v. Rogers, 128 Ky. 106, 107 S. W. 696, 32 Ky. Law Rep. 898; Bright v. Stone, 43 S. W. 207, 20 Ky. Law Rep. 817; City of Owensboro v. Stirman, 8 Ky. Law Rep. 263; Ludlow v. Richie, 78 S. W. 199, 25 Ky. Law Rep. 1581.

In Tyrrell v. Mayor, 159 N. Y. 239, 53 N. E. 1111, the question of the right of a salaried officer of a city to extra compensation for services rendered in his official capacity on Sunday seems to have been directly involved, and the court held:

It is not perceived how the appointment of additional prison guards would relieve the plaintiff of the work he is required to do on the sabbath, unless it is his meaning that they, or some of them, should be made to do the Sunday work which now falls to his lot; and that it would be no violation of the law for some other guard to do the work on Sunday, which it is claimed the law forbids his performing on that day. Surely, if it is illegal for the plaintiff to do the work on Sunday required of him by the prison board, it would also be illegal for another or

day. The statement of the proposition destroys the contention. An increase in the number of prison guards would not remove the necessity of guarding the convicts in the penitentiary on Sunday. That work being one of necessity, the duty would still have to be performed, and the board of prison commissioners, in requiring the plaintiff to share equally with the other prison guards in its performance, has neither violated the law nor abused its discretion.

[6] As no charges have been filed against "A public officer, who receives an annual sal- the plaintiff by the board for his refusal to ary for his services, cannot recover extra com- perform on Sunday the duties required of pensation for services rendered on Sunday, un-him as a prison guard, the mere fact that its less some statute allows."

[5] The plaintiff's final contention that the work required of him on Sunday is due to the failure of the board of prison commissioners to appoint more, or a sufficient number of, guards is manifestly without merit. It is not alleged in the petition that the number of prison guards is insufficient, or that there has been a reduction in the number

since the plaintiff's appointment; nor is it alleged that any duties are required of the plaintiff on Sundays that are not required of the other prison guards, or that anything has been done by the board to unduly increase his labor.

It is, however, a matter of common knowl. edge that, under the parol system, the number of convicts in the penitentiary has recently been lessened by the discharge of 300 or more of them, yet, while this must have lightened to some extent the labors of the prison guards, it has not resulted in any diminution of their number. It is not meant

by this statement to say that the services of all or any of the prison guards at present acting are not needed, for they doubtless are, but simply to indicate that there is no ground for the plaintiff's complaint that the present number of guards is insufficient. The board of prison commissioners, in supplying guards

members have threatened that such charges would be preferred, if his refusal to work on the sabbath is persisted in, can of itself afford no ground for the injunctive relief. In the absence of some showing that the board was illegally proceeding in the matter complained of, the injunction should have been refused.

For the reasons stated, the motion of the defendants is sustained, and the injunction dissolved. Judge HANNAH sat with me in the consideration of this case and concurs in the conclusions expressed in the opinion. With the approval of the whole court, this opinion is ordered to be published in the Kentucky Reports.

PAUL v. COMMONWEALTH.
(Court of Appeals of Kentucky. Oct. 1, 1914.)
INDICTMENT AND INFORMATION (§ 176*)—VA-
RIANCE BETWEEN ALLEGATIONS AND PROOF.

cutions for the violation of the local option
Under Ky. St. § 1138, declaring that prose-
law shall be commenced within one year after
the offense is committed, and Cr. Code Prac. §
129, declaring that the time at which an of-
the statement that it was committed before the
fense is committed is not material further than
finding of the indictment, unless it be a mate-
rial ingredient in the offense, a conviction un-

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes