Corker v. Cowen

• Decision Date: 20 March 1917
• Citation: 164 P. 85,30 Idaho 213
• Parties: G. E. CORKER, Appellant, v. KITTIE S. COWEN, Respondent
• Court: Idaho Supreme Court

164 P. 85

30 Idaho 213

G. E. CORKER, Appellant, v. KITTIE S. COWEN, Respondent

Supreme Court of Idaho

March 20, 1917

STATUTORY CONSTRUCTION-PUBLIC OFFICERS-IMPROPER PERFORMANCE OF DUTIES-PROCEEDINGS TO REMOVE-CAUSES FOR REMOVAL.

1.Where, under sec. 7459, Rev. Codes, authorizing the district court to entertain an information verified by the oath of any person against an officer within its jurisdiction accusing him of charging and collecting illegal fees or with having refused or neglected to perform his official duties, an information charges that the defendant knowingly, wilfully and intentionally failed, neglected and refused to perform her duties, but the record shows that defendant performed her duties, such an information was properly dismissed by the district court.

2.Where an information alleges that defendant knowingly wilfully and intentionally charged and collected large sums of money for her services as clerk of a school board, in addition to the salary allowed her by law, but it appears that such sums of money were paid to her under a contract for services independent of her duties as said clerk, sec. 7459 Rev. Codes, does not apply.

3. Sec 7459, Rev. Codes, in so far as it relates to the performance of official duties, is not designed to cover acts of officers amounting to a misfeasance, and such acts are not within the purview of said section.The section is aimed at nonfeasances, that is, failures on the part of officers to act at all, where an act is required by law.

[As to removal of officers for cause, see note in 135 Am.St. 250]

APPEAL from the District Court of the Fourth Judicial District, for Elmore County.Hon. Chas. O. Stockslager, Judge.

Action to remove school trustee under the provisions of sec. 7459 Rev. Codes, and to recover penalty.Judgment for defendant affirmed.

Judgment of the trial court sustained.Costs awarded to respondent.

W. C. Howie, for Appellant, relies on brief in Corker v. Ake.

L. B. Green, K. I. Perky and Wyman & Wyman, for Respondent.

To believe that such charges can be brought under sec. 7459, Rev. Codes, is not to observe the difference between nonfeasance and misfeasance.(Daugherty v. Nagel,28 Idaho 302, 154 P. 375;Collman v. Gordon,27 Idaho 351, 149 P. 294;Corker v. Pence,12 Idaho 152, 85 P. 388.)

The section of the statutes here invoked was intended to punish dishonest officials and those who refuse or neglect to perform their official duties.It was never intended as a means of harassing those who were honestly seeking to do their best.(Ponting v. Isaman,7 Idaho 581, 65 P. 434;Osborne v. Ravenscraft, 5 Idaho 612, 51 P. 618.)

OPINION

PER CURIAM.

This action was brought under sec. 7459, Rev. Codes, for the purpose of depriving respondent of her office as member and clerk of the board of school trustees of school district No. 6, of Elmore county, and obtaining a judgment of five hundred dollars against said respondent and in favor of appellant, the informer.Two separate causes of action are set out in the verified information which was filed by appellant on February 24, 1914.

The first cause of action, after setting out the respondent's election as a member and clerk of said board in 1909 and her continual service since that date, alleges that for the years ending July 1, 1912, and July 1, 1913, the respondent knowingly, wilfully and intentionally charged and collected from said school district large sums of money as compensation for her services as said clerk, in addition to the amount allowed her by law for the taking of the census of said school district.

The second cause of action, after alleging the election and service of the respondent as a member and clerk of the said board of school trustees, as above stated, proceeds to enumerate instances in which the respondent is alleged to have failed to perform the duties required of her by law.It is alleged that the respondent and one other comprising a majority of said board, knowingly, wilfully and intentionally failed to make a report on the 1st day of July, 1912, and on the 1st day of July, 1913, as required by sec. 61, c. 159, Sess. Laws, 1911, but made a pretended report, which was not properly itemized, contained many misstatements and made no reference to other sums due and owing to the said district; that she knowingly, wilfully and intentionally failed, neglected and refused to submit to competitive bids, as required by subd. g, sec. 58, c. 115,Sess. Laws 1913, certain construction and repair work of and pertaining to said school district; and that respondent, as clerk of said board, has failed, neglected and refused to keep the records and minutes of said board's proceedings as required by law.

Upon the strength of this information the court issued a citation to the respondent, who thereupon filed her answer, in effect denying all the allegations of said information.The cause came on regularly for trial before the court on March 10, 1914.A trial was thereupon had and the information was dismissed by the trial court, for the reason that the charges contained therein were not sustained by the evidence.

This is an appeal from the judgment of dismissal of said information.The appellant relies upon the following assignments of error, to wit:

"The court erred in his statement, which may be termed his findings, in not passing upon the question as to whether or not the defendant had charged and collected illegal fees for services rendered by her, in not finding as to whether or not she had let the contracts spoken of without calling for sealed bids, and whether or not she had failed to keep proper records as required by law.

"The court erred in not holding that the penalties of the law should be imposed upon the defendant, for her failure to comply with the law."

As to those matters referred to in the first paragraph of appellant's assignment of errors this court is without jurisdiction, for the reason that the errors there assigned have reference to the opinion of the trial court, which though incorporated into the record, is not properly a part thereof under sec. 4818, Rev. Codes, as amended bySess. Laws 1911, p. 375, which specifies the contents of the record on appeal.(Graham v. Linehan, 1 Idaho 780;Williams v. Boise Basin Min. etc. Co., 11 Idaho 233, 81 P. 646;Taylor v. McCormick, 7 Idaho 524, 64 P. 239;Stewart Mining Co. v. Ontario Mining Co., 23 Idaho 724, 132 P. 787;Smith v. Faris Kesl Construction Co., 27 Idaho 407, 150 P. 25.)It is not within the province of this court on an appeal to question the soundness of the trial court's reasons in giving its decisions, for they cannot affect the judgment itself, however enlightening they may be to counsel contemplating an appeal.(Pennsylvania Co. v. Versten, 140...