Burke v. Knox

• Decision Date: 06 April 1922
• Docket Number: 3745
• Parties: BURKE, County Com'r of Beaver County, v. KNOX, District Judge, et al
• Court: Utah Supreme Court

206 P. 711

59 Utah 596

BURKE, County Com'r of Beaver County, v. KNOX, District Judge, et al

No. 3745

Supreme Court of Utah

April 6, 1922

Original application for writ of prohibition by Owen Burke as County Commissioner of Beaver County, against William F Knox, as District Judge, and others.

WRIT ISSUED.

Straup Nibley & Leatherwood, of Salt Lake City, O. A. Murdock, of Beaver, and J. H. McKnight, of Nephi, for plaintiff.

C. T. Woodbury, of Milford, for defendants.

CORFMAN, C. J. WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CORFMAN, C. J.

On December 3, 1921, the plaintiff, as a county commissioner of Beaver county, Utah, made an original application to this court for a writ of prohibition to prohibit the defendant William F. Knox, as the judge of the district court of Beaver county, and the other defendants, as judges called from other districts, to act in that capacity by reason of the disqualification of said Judge Knox, from proceeding in a certain action brought by the county attorney of Beaver county against the plaintiff as the aforesaid commissioner to remove him from his office. It is set forth in plaintiff's affidavit herein that the said district court is without jurisdiction to proceed with the said action pending before it for two reasons: First, that the court is about to proceed to try and determine the cause out of term time; and, secondly, for the reason that the complaint or accusation made against the plaintiff does not state sufficient facts to constitute a ground for removal from office.

Upon the filing of the plaintiff's petition we let an alternative writ issue. Since that time the defendants have answered, showing that a regular term of the district court opened for Beaver county on March 13, 1922. Therefore it is conceded by all of the parties interested that the first question raised by the plaintiff's petition need not now be considered or passed upon by this court, and we shall make no further reference thereto.

At the present time the only question for this court to pass upon and determine is whether or not the district court should or should not be prohibited from proceeding to try the plaintiff and remove him from his said office as county commissioner upon the complaint filed against him by the county attorney for Beaver county in said court.

Said complaint is voluminous, consisting of eight typewritten pages, containing four counts or alleged causes of action. They need be stated only in substance.

The first count charged the plaintiff with having, on November 21, 1919, "unlawfully, knowingly, and willfully, and for the purpose and with the intent to unlawfully obtain $ 92.50, made and furnished to the board of county commissioners of Beaver county his claim for $ 92.50, purporting to be for 18 1/2 days' work single-handed, rendered by himself on the roads of Beaver county"; on February 2, 1920, with having "unlawfully, knowingly, corruptly, and fraudulently, and for the purpose and with the intent to cheat and defraud Beaver county out of the sum of $ 19, made and presented to the board of county commissioners of said Beaver county his verified claim of $ 34.70, purporting to be for actual traveling expenses in discharging necessary committee work as a county commissioner of Beaver county on January 10, 1920, and in attending a regular meeting of the board of county commissioners of said county on February 2, 1920"; on December 6, 1920, with having "knowingly, corruptly, and fraudulently, and for the purpose and with the intent to defraud said Beaver county out of the sum of $ 130, made and presented to the board of county commissioners of said Beaver county his verified claim of $ 130, purporting to be for board and room from November 10, 1920, to December 5, 1920, while on county road work." It is then alleged, upon information and belief, that the plaintiff well knew that the said claims, so presented by him to the county commissioners, were unlawful, and that with such knowledge plaintiff caused them to be paid to him, and that he therefore "unlawfully, knowingly, corruptly, and fraudulently abstracted from Beaver county" for his own corrupt and unlawful purposes the said sums.

The second, third, and fourth counts in effect charge the plaintiff with a failure to perform the official duties pertaining to his said office, in that he knowingly, wilfully, and corruptly failed, refused, and neglected as a county commissioner to oppose the allowance and payment of said alleged illegal claims. Upon the said complaint a notice or citation was issued by the county attorney of Beaver county, which was served upon plaintiff, requiring him to appear before the district court and make answer, if any he had thereto. Plaintiff appeared by counsel, who moved to quash, set aside, and to recall the citation, and also to dismiss the several accusations made against him, upon the grounds that they are insufficient in law, and that the district court is without jurisdiction to proceed. Said motions were denied, and the demurrer overruled by the court.

Comp. Laws Utah 1917, Ch. 4, of Title 119, entitled "Crimes Against the Executive," § 7929, provides:

"Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer or to any county, city, town, or district board or officer, authorized to allow or pay the same, if genuine, any false or fraudulent claim, bill, account, voucher, or writing is guilty of a felony."

Section 8625 of said compilation, found under chapter 8 of the aforesaid title, provides:

"All officers not liable to impeachment shall be subject to removal for high crimes, misdemeanors, or malfeasance in office, as in this chapter provided."

Section 8626 of the same chapter provides:

"An accusation in writing against any district, county, precinct, municipal, or school district officer, or officer of any board of education, for any high crime, misdemeanor, or malfeasance in office, may be presented by the grand jury or by the county attorney of the county in which the officer accused is elected or appointed."

Other sections of the statutes, under chapter 8, provide that the accused may appear and object to the sufficiency of the complaint or accusation against him, and if his objection is not sustained he may answer orally or in writing, denying the charges made against him. It is also provided that trial of the accused must be by jury, and shall be conducted in the same manner as trial on indictment or information for a felony. Finally, it is provided (section 8637) that upon conviction the court must pronounce judgment that the accused be removed from office.

This court has held that under our statutes providing for the removal of public officers from their offices the proceedings are civil and not criminal in their nature. Skeen v. Craig, 31 Utah 20, 86 P. 487; Skeen v. Chambers, 31 Utah 36, 86 P. 492. It is contended by the plaintiff, however, that while such actions and all the proceedings under them may be regarded as civil in their nature, the trial court should not proceed to try the accused in such a case until he is advised by proper pleadings of the particular acts or things sought to be complained of by his accuser, and until that is done the court will have nothing before it to act upon, and no power or jurisdiction to proceed. The rule contended for by the plaintiff is the one that generally applies in all civil actions where fraud or misrepresentation is relied upon as a basis for redress or a recovery. In the present case, by reason of the very drastic provisions of our statutes and the dire consequences that must result to the plaintiff if it should ultimately be found that he has offended against them, it would seem a very wise and just legal requirement that "the accusation must state the offense charged in ordinary and concise language"; that is to say, as we interpret the foregoing words of the statute, the pleader must state in "ordinary and concise language" the particular acts or things done by the accused which constitute the offense he is charged with having committed. Moreover, the offense charged should be one, if successfully proven, that would legally justify the court in removing the accused from his office.

In the accusation now under consideration, as one of the grounds for removal from office, it is merely alleged--

"That in addition to the salary of defendant [plaintiff here] as county commissioner of said Beaver county, as fixed by law and the ordinances of said county, Beaver county has paid to said defendant and undertaken to pay to him the actual amount of his traveling expenses in attending the regular and special meetings of the board of county commissioners of said Beaver county, and in the discharge of necessary committee work, but not to exceed the sum of $ 300 in any one year."

We shall refer to this allegation in the accusation later on in this opinion. It is then alleged that the plaintiff presented to the board of county commissioners his claim of $ 92.50 "for 18 1/2 days' work, single-handed, rendered by himself on the roads of Beaver county"; that he procured an allowance and payment of said claim, and thus the plaintiff "unlawfully, knowingly, and willfully abstracted from Beaver county, in manner aforesaid, for his own unlawful purposes, the said sum of $ 92.50."

The complainant as county attorney of Beaver county has not called our attention to any provision of our statute, and we confess we know of none, which either expressly or impliedly...