Archbold v. Huntington

• Decision Date: 31 October 1921
• Parties: D. V. ARCHBOLD, MILT RUSSELL, J. D. CARR, FRANK SWAUGER, FLOYD SWAUGER and TOM TRADER, Respondents, v. W. K. HUNTINGTON, Sheriff of Custer County, Idaho, Appellant
• Court: Idaho Supreme Court

201 P. 1041

34 Idaho 558

D. V. ARCHBOLD, MILT RUSSELL, J. D. CARR, FRANK SWAUGER, FLOYD SWAUGER and TOM TRADER, Respondents, v. W. K. HUNTINGTON, Sheriff of Custer County, Idaho, Appellant

Supreme Court of Idaho

October 31, 1921

OUSTER-ACTION UNDER C. S., SEC. 8684, NOT CRIMINAL-PLEADING-INTENT NEED NOT BE CORRUPT-OFFICER SERVING PAPERS-WHEN PROTECTED-NONFEASANCE IN OFFICE-WHAT CONSTITUTES-SECTION PROPERLY ENACTED.

1. Summary proceedings under C. S., sec. 8684, are not criminal proceedings, and are not intended as a punishment for crime and while such proceedings in some respects resemble a criminal action, they are only quasi criminal, and negative the idea of their being criminal.

2. Where the acts complained of affect a number of individuals in the same manner, they may all join in the information; and the nonfeasance complained of may consist of one or more acts stated in one cause of action, although each several act relied upon should be stated as a distinct and independent division, so that it may be answered or demurred to without confusion.

3. It is not necessary in a prosecution under this section to show that the officer acted with an evil or corrupt intent or motive, but it is sufficient if it appears that the act done or omitted was done intentionally, designedly, without lawful excuse, and therefore was not accidentally done.

4. Where the proceedings to establish a quarantine district were so improperly taken and irregular that no district was in fact established, and therefore the charge upon which appellant arrested complainants and placed them in jail for violating such regulation was void, the warrant of arrest, if regular on its face, will protect such officer in its due execution, in so far as he complied with its requirements but will not protect him if he violates its command.

5. The fact that appellant and the health officer under whose direction he was acting honestly believed that such officer had au- thority superior to orders emanating from the courts is not a justification for his refusal to obey the court's orders, and his placing complainants in jail under the pretense of placing them in quarantine as directed by the health officer, instead of taking them before the court that issued the warrant, held to constitute a wilful and intentional neglect to perform an official duty pertaining to his office, under C. S., sec. 8684.

6. The constitutionality of C. S., sec. 8684, cannot be challenged on the ground that it was never enacted as a separate bill where such provision was incorporated into the Revised Statutes of 1887 by the code commission and adopted by the territorial legislature, and continued in force by art. 21 sec. 2, of the state constitution.

7. Art. 3, sec. 15, which provides that no law shall be passed except by bill, and sec. 16, which requires that every act shall embrace but one subject, has no application to laws passed by the territorial legislature, which were continued in force by the constitution.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Robert M. Terrell, Judge.

Action to oust defendant from office of sheriff. From verdict and judgment of ouster, defendant appeals. Affirmed.

Judgment affirmed, with costs to respondents.

E. W. Whitcomb and Holden & Holden, for Appellant.

If the different acts alleged constituted but one offense, the same should have been alleged under different counts. (Territory v. Guthrie, 2 Idaho 432, 17 P. 39; State v. Gruber, 19 Idaho 692, 115 P. 1.)

If a public official in attempting to perform his duties fails to act according to every specific requirement of the law or acts in a manner contrary to law, he would not be guilty of failure to perform official duties pertaining to his office, although he might be guilty of corruption in office and punishable under other sections of the statute. (Corker v. Pence, 12 Idaho 152, 85 P. 388; Siebe v. Superior Court, 114 Cal. 551, 46 P. 456; In re Stow, 98 Cal. 587, 33 P. 490; Corker v. Cowen, 30 Idaho 213, 164 P. 85.)

Proof must be made that the defendant wilfully, knowingly and intentionally refused and neglected to perform official duties pertaining to his office. In other words, that he corruptly refused and neglected so to do. (Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111; Ponting v. Isaman, 7 Idaho 581, 65 P. 434; Smith v. Ellis, 7 Idaho 196, 61 P. 695; Corker v. Pence, supra; Daugherty v. Nagel, 28 Idaho 302, 154 P. 375.)

This is a quasi-criminal prosecution and every allegation of the complaint is strictly construed in favor of the accused. The presumptions are all in favor of the innocent intentions of the appellant. (McRoberts v. Hoar, 28 Idaho 163, 152 P. 1046; Collman v. Wanamaker, 27 Idaho 342, 149 P. 292; Gorman v. County Commissioners, 1 Idaho 553, 559, par. 6; In re Stow, supra.)

No proof of any "wilful" act on the part of the defendant was shown by any of the testimony given. (State ex rel. Barker v. Meek, 148 Iowa 671, Ann. Cas. 1912C, 1075, and note, 127 N.W. 1023, 31 L. R. A., N. S., 566.)

Section 8684, C. S., is unconstitutional, as no such law was ever adopted or passed by the legislature in the manner required by the constitution. (Daugherty v. Nagel, supra; Libby v. Pelham, 30 Idaho 614, 166 P. 575; Lewis v. Dunne, 134 Cal. 291, 86 Am. St. 257, 66 P. 478, 55 L. R. A. 833, note.)

Clark & Brodhead, D. E. Rathbun and George L. Ambrose, for Respondents.

"An officer arresting one under a warrant commanding him to arrest him and bring him forthwith before the subscribing justice must take him before the justice as commanded." (Wright v. Templeton, 80 Vt. 358, 130 Am. St. 990, 67 A. 817; Tubbs v. Tukey, 3 Cush. (Mass.) 438, 50 Am. Dec. 744; 4 Cent. Dig., Arrest, sec. 172, and cases cited thereunder; Judson v. Reardon, 16 Minn. 431, 3 Am. Dig., 2d Dec., sec. 70, Arrest, and cases cited; Hill v. Smith, 107 Va. 848, 59 S.E. 475; Cary v. State, 76 Ala. 78, cited under sec. 848, Cal. Pen. Code; Ex parte Bull, 42 Cal. 196, cited under sec. 825, Cal. Pen. Code, corresponding to sec. 8720, Idaho C. S.; In re Henry, 29 How. Pr. (N. Y.) 185; Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 4 L. R. A., N. S., 451.)

LEE, J. Rice, C. J., and Dunn, J., concur. BUDGE, J., McCarthy, J., Dissenting.

OPINION

LEE, J.

This was a summary proceeding commenced by respondents, complainants below, citizens of Custer county, Idaho, for the removal of appellant W. K. Huntington from the office of sheriff of said county, under the provisions of C. S., sec. 8684, and to recover the statutory penalty therein prescribed.

The amended complaint alleges that W. K. Huntington was the duly elected, qualified and acting sheriff of said county, and that while so acting he arrested complainants upon a warrant of arrest issued by the probate court of said county and took them to Challis, the county seat, and immediately lodged them in the county jail, where he kept them from about 3 o'clock in the afternoon of November 5, 1918, until 11 o'clock of the following day; that he denied their request to be taken before said probate court or any magistrate, as required by C. S., secs. 8919 and 8920, and refused to permit them to consult with their attorney, or to give them an opportunity to be informed of the charge against them, or to give bail for their appearance; and that they were responsible persons and citizens of said county, and were able and willing to give bail for their appearance before any court at any time or place that might be required.

The information further charges that thereafter appellant refused to obey a writ of habeas corpus issued by the judge of the sixth judicial district, which commanded the said sheriff to immediately release said complainants, and that at a later date he attended upon a public highway an unlawful assembly that had congregated for the purpose of delaying and stopping the judge of said court and other officials, including a representative of the United States Department of Justice, and failed, neglected and refused to disperse the said assembly, after having been directed so to do by the said judge.

To this information appellant demurred generally, and specially upon the grounds that several causes of action had been improperly united, that the information was barred by C. S., secs. 8670 and 8671, and that it was ambiguous, unintelligible and uncertain in numerous particulars pointed out, and he also moved for a separation of the several causes of action. The demurrer and motion were overruled as to the first, second, third and fifth grounds, and sustained as to the others, the court holding that there was not a misjoinder of parties or causes of action, that it was not barred by C. S., secs. 8670 and 8671, and that the information stated a cause of action, and also denied the motion for segregation.

Appellant then answered in confession and avoidance, admitting the arrest of complainants and that he had placed them in jail, but pleaded by way of justification that there was at this time a quarantine regulation, established by the county board of health, which prohibited all persons from entering or passing through any portion of said county within the designated quarantine district, and that said arrest and detention was by virtue of a warrant placed in his hands for execution, issued upon an information filed in said court, charging a violation of said quarantine regulation.

Upon trial had before the court, it found against appellant upon the charge relating to the arrest and detention of the complainants, and for him upon the charges relating to his refusal to obey the writ of habeas corpus and to disperse the unlawful assembly. Conclusions...