inal appeal and affirmed on the cross-appeal, 5. CARRIERS 352 FALSE IMPRISONMENT 281-SPECIAL POLICE with directions to enter a judgment dismissing the petition. CINCINNATI, N. O. & T. P. RY. CO. et al. v. (Court of Appeals of Kentucky. Nov. 9, 1915.) 15-RAILROADS OFFICER-DE FACTO OFFICER. The railroad, which had obtained the officer's appointment, had no right to regard him as a de facto officer, since it was incumbent upon it to see or know that he had qualified to act as an officer de jure before he was given employment on its trains. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1412-1414; Dec. Dig. 352; Dig. 15; Railroads, Cent. Dig. §§ 902-909; False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dec. Dig. 281.] 6. CARRIERS 374 FALSE IMPRISONMENT 15-SPECIAL RAILWAY POLICE-AUTHOR ITY. While every citizen is bound to assist a known public officer in making an arrest when called upon to do so, without information as to the offense charged or inquiry into the regularity of the process, and is protected in making such arrest, yet, where a special railway police officer, not a known public officer, but, assuming to act as an officer, summons a railroad employé to aid in ejecting and arresting a passenger the employé was liable as such if the alleged officer was a trespasser. Const. § 236, provides that the General As- in the prescribed 30 days after notice of his ap- UTE. Under Const. § 93, providing that inferior and state officers may be appointed for a term not exceeding four years and until their successors are qualified, and Ky. St. § 779a, providing for the appointment of railway police officers, to be paid by the railway and to hold office during its pleasure, it was intended to create the office for the four-year term permitted by the Constitution, and the failure to fix the term as one not longer than four years did not make the statute unconstitutional. [Ed. Note. For other cases, see Officers, Cent. Dig. § 70; Dec. Dig. 49.] 3. OFFICERS 55 - SPECIAL RAILWAY PoLICE-TERM. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1462; Dec. Dig. 374; False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. 15.] CARRIERS 352 - FALSE IMPRISONMENT 15-RAILROADS 281-SPECIAL RAILWAY POLICE OFFICER-LIABILITY. In view of Ky. St. § 3755, providing that, office taken within 30 days after notice of apif an official bond is not given and the oath of pointment to a public office, it shall be considered vacant, a railroad employing a special police officer was not in the position of a third person who might claim that the acts of a de facto officer were valid as to him, but was responsible for his claim of right, so that for his acts thereunder it was liable. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1412-1414; Dec. Dig. 352; False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. 15; Railroads, Cent. Dig. §§ 902-906; Dec. Dig. 281.] 8. CARRIERS 381- FALSE IMPRISONMENT 24-MOTIVE-EJECTION OF PASSENGER. police, officer and another for wrongful ejection In an action against a railroad, its special and arrest, where the evidence justified compensatory damages only, evidence as to the special officer's motive in making the arrest was inadmissible. 35-DAMAGES-PUNITIVE DAMAGES. [Ed. Note.-For other cases, see Carriers, Under Const. § 93, providing that inferior Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. and state officers may be appointed as prescrib-381; False Imprisonment, Cent. Dig. § ed by law for a term not more than four years 101; Dec. Dig. 24.] and until their successors are appointed and 9. CARRIERS 382-FALSE IMPRISONMENT qualified, the appointment of a special railway police officer under Ky. St. § 779a, on application to the Governor to serve during the railroad's pleasure, did not provide for a succession in such office, so that, when the term expired either by operation of law or by the will of the railroad, the office ceased, and another appointee did not take it as successor. [Ed. Note. For other cases, see Officers, Cent. Dig. § 76-84; Dec. Dig. 55.] 4. OFFICERS 43-SPECIAL RAILWAY OFFICER DE FACTO OFFICER." A special railway police officer whose office had become vacant for failure to take the oath and execute his bond within the time prescribed by the Constitution was not a "de facto officer." [Ed. Note.-For other cases, see Officers, Cent. Dig. 65; Dec. Dig. 43. For other definitions, see Words and Phrases, First and Second Series, De Facto Officer.] defendant railroad's special police officer and Where there was nothing in the conduct of its employé, acting under his direction, in ejecting and arresting plaintiff that might be considered as wanton or reckless disregard of plaintiff's rights as a passenger, and where neither their language nor manner was insulting, punitive damages were not recoverable. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1478, 1483-1491; Dec. Dig. 382; False Imprisonment, Cent. Dig. § 112; Dec. Dig. 35.] 10. CARRIERS 382-FALSE IMPRISONMENT 36-EJECTION-EXCESSIVE DAMAGES. A verdict of $4,000 for alleged wrongful ejection of plaintiff from defendant's train, and his arrest and detention for an hour, without a showing of any excessive force or brutal treatment or physical injury, even if plaintiff was not drunk or disorderly, as alleged, was in ex cess of what would justly compensate him for the suffering endured. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1478, 1483-1491;' Dec. Dig. a 382; False Imprisonment, Cent. Dig. 88 110, 113-115; Dec. Dig. 36.] Appeal from Circuit Court, Boyle County. Action by W. C. Cundiff against the Cincinnati, New Orleans & Texas Pacific Railway Company and others. Judgment for plaintiff, and defendant Railway appeals. Reversed. Nelson D. Rodes and Charles H. Rodes, both of Danville, and John Galvin, of Cincinnati, Ohio, for appellant. Robert Harding, of Danville, Charles Montgomery, of Liberty, and Emmet Puryear and John W. Rawlings, both of Danville, for appellee. stating that his brother-in-law lived there, and also calls attention to the fact that a good many voters from his county were going, and he wanted to "electioneer" with them. He admits taking several drinks of beer in Cincinnati, but does not fix the number. His friends count at least six that he drank. How many of these are in addition to those admitted by Cundiff the record He maintains, however, leaves in doubt. that he was not drunk, and his friends, certainly not less drunk, corroborate him. According to his story, he was worn out by the time the train was ready to leave Cincinnati that evening at 6 o'clock, and quite naturally his party were at the station a long while-perhaps an hour-before starting time. Before the train gates were opened NUNN, J. This is an appeal from a judg- they made one or more trips to a nearby saNUNN, J. This is an appeal from a judg-loon, where appellee admits taking a final ment rendered against the appellant railway company, Samuel Morrow, and C. N. Mitchell glass of beer, and Waldon, his closest comin favor of appellee for the sum of $4,000. panion, bought a flask of brandy. When the The petition charges that the railway company and its servants, the codefendants, wrongfully, maliciously, and forcibly ejected him from its train, and caused him to be taken by other railroad servants to a police station at Ludlow and there locked up. The defendants filed separate answers, in which they alleged that Mitchell and Morrow were officers of the commonwealth, and not servants or employés of the railroad. Mitchell and Morrow admitted that they took the appellee, Cundiff, off of the train and delivered him to other police officers at Ludlow, Ky., but they say that, acting as police officers of the commonwealth, they arrested him because he was drunk, using profane language, and behaving in a disorderly manner on the train. They claim to have acted in good faith and upon probable cause, and without malice toward appellee. In brief, the facts are as follows: gates were opened they got aboard the train. It consisted of 14 cars. Appellee and his companions got on the second car from the rear end. It was August, the shed was close, the crowd was large, and the train was next to a stone wall where the sun had been shining all day. Of course, it was oppressive in the car, and from these circumstances it is easy to understand how, in connection with being up all night and going all day in a pair of new shoes, appellee felt the need of rest. He says as much, and immediate ly they were seated he put up his hat, pulled off his coat, removed his collar, unbuttoned his shirt, and took off his shoes. In order that he might not be disturbed, he gave his ticket to Waldon, his companion, with request that he hand it to the conductor. Thus relieved and so clad, he went to sleep. He never knew when the train started. In fact, the first thing he says that he Appellee was the county court clerk of did know was when, in the fifth car from the Casey county, and a candidate for re-election. engine, Morrow caught him by the collar and In the latter part of August, 1913, a consid- jerked him out of the seat, and, with the erable number of men from Casey and sur- help of Mitchell, marched him to the baggage rounding counties went to Cincinnati on a car, where there were four other drunken Sunday excursion. Appellee lived at Lib-passengers. Cundiff says he asked Morrow : erty, the county seat, which was 17 miles "What is the matter? What have I done? from Moreland, the nearest station on ap- What are you doing?" Morrow replied: "I pellant's road. In company with many oth- am an officer." Cundiff says: "I am clerk ers, they left Liberty on Saturday night of the county court." To which Morrow reabout 11 o'clock, and drove overland in order plied: "Go on there; I will take care of to reach Moreland at 5 o'clock Sunday morn- you." When the train reached Ludlow, Cunmorn-you." ing, when the excursion train was due. diff and the other men in the baggage car There was jamaica ginger in the party before they left Liberty, and it is inferable from the record that on the road to Moreland, and on the train to Cincinnati, members of the party were drinking intoxicants of some kind, although there is no evidence that Cundiff partook until he reached Cincinnati. Just why he went to Cincinnati on a Sunday excursion is not a necessary, if a fair, inquiry. He attempts to excuse the trip, however, by were taken off. Cundiff says he then appealed to Morrow for release on the ground of politics and former association with some of Morrow's relatives, but Morrow was obdurate. Cundiff then discovered that he was without coat, collar, hat, or shoes, and asked for time to go aboard to get them. The train was held while Morrow went back for them, but he was only able to find the coat and hat. Cundiff and the baggage car outfit were delivered into the hands of an alleged ion: "Well, you have lost the best police officer at Ludlow, while the other men years of your life." Morrow shoved him from Casey continued their journey home-down in the seat and went on to the rear of ward. With Cundiff in his stocking feet, the train. Coming back in three or four minthey were marched some 800 yards to the po- utes, he found him two cars ahead, where lice station. Cundiff says the other men were he was falling over, and making signs to, an put in a cell, but they left him out in the old gentleman. He was advising the old corridor and locked him up. As to being man, with some profanity, to "join as soon locked up anywhere, no witness supports him, as possible." Morrow warned him that if he and appellant's witnesses deny it. The may- did not sit down and keep quiet he would or came down in a short time and looked have to arrest him. Morrow went on to the him over, and said: "I find no fault in this front of the train, and then made another man." According to precedent, ancient, if round trip without encountering Cundiff. not honorable, he desired to wash his hands On his next trip he found Cundiff in the fifth of the affair by directing his release. To car from the engine, seated, and cursing bethis Cundiff demurred, and insisted that a cause he could not find a member of his secharge be preferred, and a day fixed for cret order on the train. Morrow then arresttrial, and that he be admitted to bail. After ed him, and deputized Mitchell, a railroad some argument a day was set, and Cundiff employé, to take him to the baggage car. prepared an appearance bond in his own Morrow thus described his appearance: hand, which a sympathizing bystander signed. On the day fixed for trial Cundiff appeared, the case was heard, attorney for the railroad took a part, and Cundiff was acquitted. Three of Cundiff's companions claim to know when Morrow arrested him, but none of them followed to see what became of him. With Cundiff, they occupied seats near the end of the car, facing each other. These men testified that Cundiff went to sleep and never moved from his place until he was pulled out of it by Morrow. They insist that he was not drunk or offensive or creating any sort of disturbance. Waldon, his closest as sociate, was removed to the baggage car soon after Cundiff was taken off, and he is frank enough to say: "You see the fact of the business is when they taken Mr. Cundiff, you know, you see I had lost sleep all night, had been up, and was wore out and sleepy, and I just simply laid down and went to sleep. Some of the gentlemen just taken me over in the baggage car, and I slept in there, and then I went back to my car." "He didn't have any coat, and his shirt was open. His person was exposed. He did not look like he had combed his head for some time. smell of beer was strong on his breath, * His hair was stringing around his face. The and his shirt tail was out." Mitchell, the old man, and other passendetails, and it is established beyond controgers corroborate Morrow in many of these versy that the arrest occurred in the fifth car from the engine. Reversal is asked on several grounds: (1) Morrow acted as a police officer of the comthe court erred in rejecting evidence tendmonwealth, and Mitchell was his deputy, and ing to show Morrow's power so to act and deputize Mitchell; (2) the court erred in giving an instruction authorizing the reCovery of punitive damages; (3) the verdict is excessive. [1] Appellant offered to prove that Morrow was a railroad policeman, appointed and commissioned by the Governor of Kentucky in June, 1906, and that on July 3, 1907, he qualified to act as such by taking the oath He explains that all his brandy was gone of office and executing bond to the commonwhen he returned. Morrow testified that he first saw Cundiff and Waldon together that evening as they came through the station gate "walking and staggering along down the train." They got aboard the twelfth car; that is, the second from the rear. Morrow was acting as a police officer (whether rightfully so is another question). The whole length of the train was his beat. He next saw Cundiff out in the aisle near the middle of the car. A man was trying to get by him. Cundiff was making secret order signs, and, not receiving a proper response, remarked that any man that did not belong to his secret order "is a wealth under the provisions of section 779a, Kentucky Statutes. The court ruled that the evidence offered was incompetent. The point was saved by avowal to the above effect. The statute referred to provides that railroad corporations may apply to the Governor and have certain designated persons appointed and commissioned to act as policemen, with powers of sheriffs or constables upon trains and about depots. Any person so appointed shall qualify in the county of his residence by executing bond with good security and taking and subscribing to the oath of office required by the Constitution. These facts must be indorsed upon his commission. Cerfool." Morrow caught him by the shoulder tified copy of the commission, together with and told him he was an officer, and cautioned the indorsements thereon, shall be recorded him of the presence of ladies, and asked him in the county court clerk's office of every to take his seat and get out of the way. Cun- county in which it is intended the policeman diff wanted to talk to him about his secret shall act. The policeman is subject to all order, and, upon receiving information that the liabilities of sheriffs and constables responsible. The compensation of such policeman is paid by the railroad at whose instance he was appointed, and is fixed by agreement between them. When the railroad deems that his services are no longer required, it may file notice to that effect in the several counties where his commission is recorded, and thereupon his right to act as policeman shall cease. follows, therefore, that it had expired when the arrest was made, assuming that he ever was legally qualified to make the arrest. Legislative authority to create this office comes from sections 93 and 107 of the Constitution, which are as follows: "Sec. 93. Inferior and state officers, not specifically provided for in this Constitution, may be appointed or elected, in such a manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified." for the election or appointment, for a term not "Sec. 107. The General Assembly may provide exceeding 4 years, of such other county or district ministerial and executive officers, as may, from time to time, be necessary." It will be noticed that section 779a is silent as to the length of time that a railroad policeman shall hold his office, except the fact that it may be terminated at the pleasure of the railroad at whose instance the appointment was made. But the failure of the Legislature to fix a term not longer than four years does not of itself render the act There is nothing in the case to show that the conductor or other employés of the railroad caused Morrow to arrest or eject Cundiff from the train. He acted upon his own initiative. Whether he was a servant of the railroad to the extent that the railroad would be answerable for his conduct if, in fact, he had been lawfully commissioned and qualified to act as railroad policeman is a question not presented by this record. We have reached the conclusion that he was not authorized to make the arrest by virtue of the commission issued to him by the Governor: (1) He failed to qualify within the time required by law; (2) his term of office had ex-unconstitutional. pired when he made the arrest. His commission was issued on June 22, 1906. Pulaski was the county of his residence, and he there took the oath of office and executed bond on July 3, 1907. Certified copies of the commission and qualification were subsequently recorded in Kenton county, where the arrest was made. Section 236 of the Constitution provides that the General Assembly shall by law "prescribe the time when the several officers authorized or directed by this Constitution to be elected or appointed shall enter upon the duties of their respective offices, except where the time is fixed by this Constitution." In compliance with this constitutional requirement, section 3755 of the Kentucky Statutes was enacted, and is as follows: "If the official bond is not given, and the oath of office taken on or before the day on which the term of office to which a person has been elected begins, or in cases of persons appointed to office within 30 days after such person has received notice of his appointment, the office shall be considered vacant, and he shall not be re-eligible thereto for two years." The avowal does not show when Morrow received notice of his appointment. In view of the lapse of more than a year between the date of his commission and the time of his qualification, we think the date of notice should have been avowed in order to render the evidence competent. This lapse of time, unexplained, amounted to such an unreasonable delay as to raise the presumption that he did not execute the bond and take the oath of office within thirty days after he received notice of his appointment. Therefore we must hold that the office was made vacant and he rendered himself ineligible thereto for two years. [2] The arrest was made in August, 1913, more than seven years after his appointment and more than six years after his attempted qualification. Under the Constitution, his term of office was four years. It "In construing statutes, the courts will never adopt a construction that makes them violate the Constitution, if any other is susceptible from their words." Standard Oil Co. v. Commonwealth, 119 Ky. 75, 82 S. W. 1020, 26 Ky. Law Rep. 985; Render v. City of Louisville, 142 Ky. 409, 134 S. W. 458, 32 L. R. A. (N. S.) 530; Commonwealth v. Hodges, 137 Ky. 233, 125 S. W. 689; Commonwealth v. International Harvester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256. Agreeable to this rule of construction, and as applied in the case of Sinking Fund Commissioners v. George, 104 Ky. 260, 47 S. W. 779, 84 Am. St. Rep. 454, we hold that the Legislature intended to create an office for the term permitted by the ConstitutionIn that that is, four years and no more. case the court had under consideration an act of the Legislature creating a board of penitentiary commissioners. The board consisted of three members holding office, one for a term of two years, one for four, and the other for six years. George was elected for the six-year term. The constitutionality of the act was attacked on the ground that an office had been created for a term longer than four years. The court held the act constitutional, but limited George's term of office to four years. We quote from the opinion: "As the General Assembly expressed a willingfor two years longer than the Constitution perness that one of the commissioners should hold mits, it is certainly reasonable to conclude that it was the will of that body that the commissioners should hold for four years, as this term it fixed. is necessarily included in the longer one which To hold the act void in so far as it makes the term six years, instead of four, still the balance of the act is complete and enforceable. ** * The General Assembly has not only shown a willingness that the terms shall be as much as four years, but that they shall be six. If the unconstitutional portion of an act can be stricken out, and that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must be sustained. When that part of the act which adds two years to the constitutional | responsible for his claim of such right, and term of four years is rejected, there will be three whatever steps he takes under such claim commissioners, one of whom shall hold for a term of two years, and two for a term of four of right are taken at their peril. years each, and, in the language of the act, hold until their successors are elected and qualified.'" [3] Arguing that Morrow that Morrow was lawfully qualified in the first place, appellant contends that, under section 93 of the Constitution, he was lawfully acting as policeman, although the four-year term had expired, because, as it says, no successor had been appointed or qualified to take his place. We do not consider this reasoning sound for two reasons: First, the avowal is lacking in that regard; and in the next place, the statute shows that no such thing as succession in this office was contemplated. When the term of office of a railroad policeman expires, whether by operation of law or at the will of the railroad, the office he held ceases with the officer. When another is appointed, he does not take it as successor to any one. [4, 5] Neither can it be said that Morrow was a de facto officer. Nor did the railroad, responsible for his appointment, have the right to so regard him. It was incumbent upon the railroad to see or know that he had qualified to act as an officer de jure before he be given employment on its trains. "When an officer is called upon to justify an illegal arrest, and he relies upon his official capacity, it is usually considered necessary that he should prove not only that he was an acting officer, but that he was an officer in truth and right, duly commissioned and qualified to act as such." 2 R. C. L. 490. [6] Morrow not being a public officer, his summons to Mitchell to aid in keeping Cundiff in custody does not relieve Mitchell of responsibility. The instructions authorized the jury to find for Cundiff such damages as would reasonably and fairly compensate him for the mortification and humiliation he experienced in being arrested and evicted from the train, if it was done wrongfully and without probable cause. In their discretion, they were also authorized to award punitive damages, if they believed the defendants acted maliciously and with a reckless and wanton indifference to Cundiff's rights as a passenger on the train. [8] Appellant's counsel at the trial asked Morrow if at the time he arrested Cundiff he believed in good faith that he had a right to make the arrest. The court sustained an objection to this question, and appellant excepted and avowed: "That the witness, if permitted to answer, would state that he believed in good faith and honestly that he was entitled to do that for the protection of the women and children and other passengers on board the train against drunken and disorderly persons." We think this evidence would have been competent had Cundiff made out a case warranting an instruction on punitive damages. Where, at best, the evidence justifies recovery of compensatory damages only, this evidence as to motive is not proper. [9] However, we feel that it was error to give an instruction on punitive damages. The elements of unnecessary force and oppression are wanting. There was nothing in the conduct of Morrow and Mitchell that can be considered as a wanton or reckless can be considered as a wanton or reckless disregard of Cundiff's rights as a passenger. Neither was their manner or language insulting. On another trial the court will omit the instruction on punitive damages. L. & N. R. Co. v. Scott, 141 Ky. 538, 133 S. W. 800, 34 L. R. A. (N. S.) 206, Ann. Cas. 1912C, 547; L. & N. R. Co. v. Ballard, 88 Ky. 159, 10 S. W. 429, 10 Ky. Law Rep. 735, 2 L. R. A. 694; Memphis v. Nagel, 97 Ky. 9, 29 S. W. 743, 16 Ky. Law Rep. 748; Southern Ry. v. Hawkins, 121 Ky. 415, 89 S. W. 258, 28 Ky. Law Rep. 364; 13 Cyc. 109. See cases cited Hobson on Instructions, § 176. "Every citizen is bound to assist a known pub-sulting. lic officer in making an arrest, when called upon to do so. *** According to the better considered authorities, private persons may respond to the call of a known officer without waiting for information as to the offense which the criminal has committed and without pausing to inquire into the regularity of the process; and whoever in good faith renders assistance and obeys the orders and directions of a known public officer in response to a call for assistance is protected in making arrest, although the officer may be acting wrongfully and may be personally liable for the false arrest." 2 R. C. L. 491. But where the party making the arrest is not a known officer, but only assumes to act in that particular case by special appointment, persons aiding the supposed officer are bound to know whether he has authority to make the arrest or not, and in case he is a trespasser for want of authority, those aiding him are also liable. Dietrichs v. Schaw, 43 Ind. 177. See, also, note Tyron v. Pingree (Mich.) 67 Am. St. Rep. 421. [7] Section 3755, Kentucky Statutes, supra, prescribing the time in which an officer shall qualify, in express terms vacates the office for failure to comply therewith. The railroad is not in the position of a third party who may claim that the acts of a de facto [10] We are also of opinion that the damages allowed are excessive, even if it be conceded that Cundiff was not drunk or disorderly, and that his arrest and eviction were wrongful. Proof of these facts would only entitle him to compensatory damages for the humiliation. Nothing is shown in the way of excessive force or brutal treatment. He was detained at the police station for only an hour. No physical injury was inflicted. We are of opinion that the damages awarded are in excess of what would justly compensate him for the suffering endured. In the case of Schneider v. McGill, 64 S. W. 835, 23 Ky. Law Rep. 587, one McGill, the clerk at a primary election, was arrested |