Corker v. Pence

• Decision Date: 08 March 1906
• Citation: 85 P. 388,12 Idaho 152
• Parties: C. E. CORKER, Appellant, v. JOHN PENCE, Respondent
• Court: Idaho Supreme Court

85 P. 388

12 Idaho 152

C. E. CORKER, Appellant, v. JOHN PENCE, Respondent

Supreme Court of Idaho

March 8, 1906

INFORMATION-REMOVAL FROM OFFICE-ALLEGATIONS ON INFORMATION OR BELIEF-CHARGING PART OF THE INFORMATION-CAUSES FOR REMOVAL-ILLEGAL FEES-NEGLECT TO PERFORM DUTY-EQUALIZATION OF ASSESSMENT-SANITARY RULES - ITEMIZED BILLS-VOUCHERS-BOARD-TRAVELING EXPENSES.

1. Under the provisions of section 7459 of the Revised Statutes the allegations of the information should be made positively when the facts are of record and accessible or within the personal knowledge of the informant; otherwise they may be made on information and belief.

2. Under the provisions of section 7459 of the Revised Statutes the information is sufficient if it charges the defendant with knowingly, willfully and intentionally charging and collecting illegal fees, specifying them, or with knowingly, willfully and intentionally refusing to perform, or neglecting to perform, an official duty pertaining to his office, specifying such duty.

3. Under the provisions of said section there are but two offenses for which a defendant may be removed from office; the first is the charging and collecting illegal fees for services rendered or to be rendered in his office; and, second, neglecting to perform official duties pertaining to his office required by law.

4. County officers, for all other willful or corrupt misconduct in office, other than that mentioned in section 7459, may be removed under the provisions of section 7445 et seq., of the Revised Statutes.

5. Under the provisions of section 7459, a corrupt official may be prosecuted by a private person for the acts therein specified, while under the provisions of section 7445 the accusation must be by the prosecuting attorney, or presented by the grand jury for other willful or corrupt misconduct in office.

6. Where a board of equalization meets and proceeds to equalize the assessment of the property of the county, but fails to make such equalization and assessment in accordance with the views of others, and if they willfully and corruptly equalize such assessments, they cannot be removed from office under the provisions of said section 7459. The remedy is provided by the provisions of section 7445.

7. The allegation in an information that the board of county commissioners did not make "necessary" and "proper" rules and regulations to prevent the outbreak and spread of contagious and infectious diseases, is not a sufficient allegation that no rules or regulations in regard thereto had been made.

8. A failure to properly itemize a claim against the county is not a cause for the removal of an officer under the provisions of said section 7459.

9. An allowance of a claim against the county without its being accompanied by a proper voucher is not a cause for removal under the provisions of section 7459.

10. Under the provisions of an act approved March 14, 1901 (Sess. Laws 1901, p. 227), which provides for the payment of actual and necessary expenses of certain county officers, is included the board of such officers when absent from their residences in the performance of the official duties of their several offices.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.

Proceeding to remove a county commissioner under the provisions of section 7459 of the Revised Statutes. Demurrer to complaint sustained by trial court. Affirmed.

Judgment of the trial court affirmed, with costs in favor of respondent.

W. C. Howie, for Appellant.

Where a statute confers upon a body or officer a power for the public good or protection, or in which the public is interested, the exercise of that power is mandatory. (20 Am. & Eng. Ency. of Law, 2d ed., 239-242; Hays v. Simmons, 6 Idaho 651, 59 P. 182; Miller v. Smith, 7 Idaho 204, 61 P. 824; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111; Stewart v. Bole, 61 Neb. 193, 85 N.W. 33; Clyne v. Bingham Co., 7 Idaho 75, 60 P. 76; Ellis v. Bingham County, 7 Idaho 86, 60 P. 79.) County officers have no right to charge their board as an expense while attending to official duties (Stookey v. Board, 6 Idaho 542, 57 P. 312; Reynolds v. Board, 6 Idaho 787, 59 P. 730; Clyne v. Bingham Co., 7 Idaho 75, 60 P. 76), and the act of 1901 does not give them that right.

E. M. Wolfe, Perky & Blaine and Morrison & Pence, for Respondent.

Section 7459 of the Revised Statutes is the sole basis of this action, and appellant must stand or fall upon the interpretation of that section. Unless fraud or intentional misconduct is charged, no cause of action is stated. (Ponting v. Isaman, 7 Idaho 581, 65 P. 434; Rankin v. Jauman, 4 Idaho 400, 39 P. 1111.)

The board of commissioners were acting in a judicial capacity, and were clothed with discretion. (People v. Goldtree, 44 Cal. 323; Hornblower v. Duden, 35 Cal. 664.)

The court should be reluctant to interfere, for errors of judgment and slight reasons, with the will of the people as expressed at the ballot box in the election of county officers. (Gorman v. County Commissioners, 1 Idaho 559.)

Absolute equality and strict justice are unattainable in tax proceedings. (Cooley's Constitutional Limitations, sec. 738.)

Powers of a board of health are to be liberally construed. (Gregory v. New York, 40 N.Y. 273; Upjohns v. Board of Health, 46 Mich. 542, 9 N.W. 845; 2 Am. & Eng. Ency of Law, 1st ed., 432.) The act of 1901, pages 226 and 227, provides for all "actual and necessary expenses." The purpose and intent of the legislature is the vital part of the law, and the primary rule of construction is to ascertain and give effect to that intent. (Sutherland on Statutory Construction, sec. 363.)

The allegations are upon information and belief. The informant in a matter of so much moment must be required to avail himself of all the facts at his command and allege positively upon them. (First Nat. Bank v. Watts, 7 Idaho 510, 64 P. 223.) If an officer honestly enters upon the duties of his office, does the best he can but makes mistakes, he is not subject to removal from office and fine. (Ponting v. Isaman, 7 Idaho 283, 62 P. 680, 65 P. 434; In re Stow Park Commissioners, 98 Cal. 587, 33 P. 490.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought under the provisions of section 7459 of the Revised Statutes, to remove the respondent from the office of county commissioner of Elmore county. Two separate causes of action are set out in the information. In the first cause, after alleging that appellant is a citizen and a taxpayer of the state of Idaho and that respondent is one of the duly elected, qualified and acting county commissioners of said county, appellant alleges on information and belief that the respondent had "willfully, knowingly and intentionally failed, neglected and refused to perform the official duties pertaining to his office." Then follow eight specifications of instances in which it is alleged he has so failed. The first specification refers to his action in conjunction with the other members of the board of county commissioners acting as a board of equalization, and states two matters in which it is alleged he knowingly, willfully and intentionally failed to perform the duties of his office: 1. That he failed, neglected and refused to equalize the taxes of said county for the year 1905; 2. That he failed, neglected and refused to enforce and compel an assessment of the property of said county at a fair cash value, but that he, in conjunction with the other members of said board, raised the valuation of the property of many of the taxpayers of the county to more than its fair cash value and to more than other property of the county of equal value, and more in proportion than other property of the county, and failed to raise others to their fair cash value, or to the same as other property of equal value, or to the same in proportion as other property of the county, and then particularly sets out the original assessments and the actions of respondent, acting and voting with the other members of the said board in regard to the lots in the original townsite of Mountainhome and Glenn's Ferry, and also two instances of contiguous ranch lands, with allegations of the nature of the said lots and the relative values thereof, and further alleges that the remainder of the lands of said county were as unequally assessed as those given, but alleges his inability at that time to give detailed facts of the same, and, by way of illustration of the matters alleged, attached copies of the plats of the said towns.

The second specification is that respondent failed to organize a board of health, and failed to make or establish any rules or regulations necessary and proper to prevent the spread of contagious or infectious diseases, and that there had repeatedly been cases of smallpox in the county requiring such rules and regulations.

The third specification alleges that there were several cases of smallpox at three different specified times and places in said county during respondent's term of office, their liability to spread and become epidemic, and that it was necessary that said cases be quarantined, and that in each case he failed to quarantine the case or to take any other legal steps to prevent the spread of such disease.

The remaining five specifications relate to the illegal allowance of bills, and ordering county warrants issued in payment thereof.

Specification 4 alleges that respondent allowed eight bills, amounting to $ 362.45, for services and supplies in relation to smallpox patients, and that none of such claims were legal charges against the county, for the reason that they had not been...