I regret that I find myself unable to agree with my associates who concur in the opinion wherein it is held that the promises as contained in the publications, speeches and statements of the contestee, Hill, with reference to his salary as county attorney of Lincoln county if he should be nominated and elected did not constitute such illegal conduct and bribery as to deprive him of his nomination. *Page 296

I do not understand the opinion to hold that if contestee had expressly stated and represented to the voters in terms that he would donate a part of his salary to the county to be placed either in its general or any special fund, he would not be guilty of such a species of bribery as to establish the ground of contest to which a demurrer was sustained by the trial court and which judgment the majority opinion affirms.

Indeed, the cases cited in the opinion, and from which opinions excerpts are therein inserted, uphold such grounds of contest in strong, vigorous and logical language. But those opinions are not the only ones sustaining the same ground. Others of like import are: Attorney General v. Collier,72 Mo. 1; Carruthers v. Russell, 53 Ia. 346; People v. Bush, 32 N.Y. 456, and Diehl v. Totten (North Dakota), 155 N.W. 74. In the annotation to the cited case of Prentiss v. Dittmer, published in 1917B, L.R.A. 191, a number of other cases are collated wherein such promises of a reduction of salary by the candidate were held to be a species of bribery so as to render all votes obtained as a result of them invalid, but under the practice of those jurisdictions it was furthermore held that it was incumbent on the contestant to allege and prove that enough votes were so influenced to reduce the number received by the contestee below a majority or a plurality. In other words, the court in those cases held that it was bribery and unlawful for a candidate to make such promises, but that before he could be deprived of his nomination or election, it must be shown that the votes sought to be taken away from him were cast for him because of the promises, while in the first cases cited above the number of votes so influenced was held to be immaterial, and the latter rule prevails with us, especially since the enactment of our "Corrupt Practice Act" against bribery and corruption in elections. I have been able to find no authority to the contrary, and if the decision of the question depended entirely upon precedent there could be no escape from the conclusion that such promises of a reduction of salary were sufficiently corrupting in their tendencies as to constitute bribery within the meaning of the statute forbidding it in elections.

But, independently of those adjudications, I think it requires no argument to show that no such practice should be tolerated and that courts should not hesitate to characterize it as bribery, followed by the consequences *Page 297 of withholding from the one who engages in it all benefits that he may, or would actually, receive therefrom. As said in some of the opinions referred to, to hold otherwise would permit the various elective public offices to become filled by those who would purchase their election at the lowest bid, and the selection of agents for carrying on the public service, instead of being done with a view to efficiency, would degenerate into a public auction wherein the performance of important public duties was let to the lowest bidder, and eventually public offices would be occupied only by the opulent and ambitious officer who could afford to serve for only the pittance of honor attached to the office, or by the designing grafter intending to obtain his remuneration from those seeking to escape the consequences of an honest administration of the law — and in either case good government would soon vanish. Without further elaboration, I am thoroughly convinced that if this case had been as above indicated, there could be no doubt of the sufficiency of the grounds of contest.

But as I understand the opinion, it holds that the promises by contestee were not sufficient to constitute bribery within the contemplation of the rule of the cases, supra, and for that reason the demurrer to the paragraph was properly sustained. However, I do now find myself able to agree with my brethren in that conclusion. In the signed and published announcement of appellee, and which is incorporated in the opinion, be said,inter alia: "I propose to have the fiscal court to take from the county attorney's salary $400.00 per year and place same to the credit of the road fund," which statement followed a reference to the necessity of good roads and which in turn was a popular and appealing subject and one of universal agitation throughout the Commonwealth at the time of the election. That statement embodies nothing more nor less than a promise or an agreement that $400.00 of the annual salary attached to the office should be taken away from contestee if he was elected and devoted to the construction of roads in the county. The fact that he also stated that he expected to enlist the services of the fiscal court in order to enable him to perform his promise, does not remove the purpose he had in view, and does not detract from the corrupting influence of the promise, and the same may be said concerning the other publication inserted in the opinion, which does not seem to differ very materially from my conclusion. *Page 298

It is stated, however, in the opinion that the promise to serve for a reduced salary in order to be visited with the consequences of bribery must be made to an office that has attached to it a fixed salary, and that inasmuch as (as held in the opinion) there was no such fixed salary at the time the promise was made by the contestee, he was guilty of nothing that could affect his nomination even under the opinions,supra, but which reason, to my mind, is not only fallacious, but is based upon in erroneous assumption of fact. It is the duty of the fiscal courts of all the counties to fix salaries for county attorneys, and they remain at that sum until they are changed, but which cannot be done after the taking of office under the Constitution prohibiting either reduction or increasing salaries after that time. When contestee made such promises there was necessarily an order of the fiscal court fixing the salary of the county attorney, and it would remain so fixed, unless subsequently altered by the fiscal court, and which, as we have said, would have to be done before he became installed in office. Therefore, when the opinion says that there was no salary then fixed, it is in error as to the facts.

If, however, there was no fixed salary, but the compensation should arise solely from fees and commissions, or both, then it would be incompetent to agree or promise to serve for a less sum than what the earnings on that basis would aggregate, since the vice in the promise does not consist alone in relinquishing a part of the fixed salary of the office as it does in promising to serve for less than the legitimate compensation for the service as adjusted by law.

The opinion advanced in this dissent erects no barrier to the advocacy of economy in public affairs, including a general reduction of salaries, since in that case the platform of the candidate is directed toward remedying what he conceives to be a species of extravagance in the way of remuneration for all offices; while in the character of promise made by contestee, only the amount of his salary is affected and he promises that his proposed reduction thereof shall go to the augmentation of a fund for the furtherance of a highly cherished public purpose and one which he knows will be the most calculated to influence voters. In other words, I can see no difference between the promises of contestee in this case as made by him and one wherein if he had expressly stated that he *Page 299 would take $400.00 of his salary and donate it to the road fund.

Since there can be no greater enemy of good government than the one who attacks and destroys the integrity of elections, which are our machinery for the selection of officers, and believing as I do that the opinion fails to fully appreciate the debauching effects of such promises as are here involved, and being also mindful of the further fact that elections should be clean, free from all corruption and untarnished, I am constrained to register this my dissent. Chief Justice Clarke and Judge Settle concur herein.