Daugherty v. Nagel

• Decision Date: 31 December 1915
• Citation: 154 P. 375,28 Idaho 302
• Parties: GORDON DAUGHERTY, Appellant, v. JOHN G. NAGEL, as a Member of the Board of County Commissioners of Bonner County, Respondent
• Court: Idaho Supreme Court

154 P. 375

28 Idaho 302

GORDON DAUGHERTY, Appellant, v. JOHN G. NAGEL, as a Member of the Board of County Commissioners of Bonner County, Respondent

Supreme Court of Idaho

December 31, 1915

SEC 7459, REV. CODES-IN FORM CIVIL ACTION-IN SUBSTANCE AND EFFECT CRIMINAL PROCEEDING-MUNICIPAL OFFICERS-REMOVAL OF-OFFICIAL DUTIES-NEGLECT TO PERFORM-BOARD OF EQUALIZATION MEETING-ERROR IN MINUTES-ADMISSION OF EVIDENCE.

1. A proceeding under sec. 7459, Rev. Codes, providing for the removal of a public officer for collecting illegal fees for services rendered or to be rendered, or for refusal or neglect to perform the official duties pertaining to his office, while in form a civil action is nevertheless, in substance and effect a criminal prosecution coming within sec. 13, art. 1 of the constitution declaring that "No person shall be.... compelled in any criminal case to be a witness against himself"; and it was not the intention of the legislature in enacting sec. 1 of Senate Bill 28, Sess. Laws 1909, p. 334, to compel a defendant, in an action brought by a private citizen for defendant's removal from office for refusal or neglect to perform the official duties pertaining to his office and to obtain a judgment as a penalty in the sum of $500 for the informer, to become a witness against himself.

[As to liability of public officers for corrupt conduct, see note in 40 Am.St. 713.]

2. '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 charging him with being guilty of charging and collecting illegal fees or with having refused or neglected to perform his official duties, an information charges that the defendant knowingly, intentionally and illegally performed the duties of his office, such allegations do not charge that the defendant refused to perform the duties of his office but charge that he performed said duties; therefore it was not error for the trial court to strike out said allegations from the information, for the reason that the trial court would, under such allegations, be without jurisdiction, said defendant being subject to prosecution upon indictment by a grand jury or information of a county prosecuting attorney, as provided under secs. 7445-7457, Rev. Codes.

[As to exacting unauthorized fee as extortion, see note in Ann.Cas. 1913D, 453.]

3. Where, as a matter of fact, the defendant with the other two members of the board of county commissioners met as a board of equalization on the first Monday of July, 1913, as provided by law, and continued in session up to and including the fourth Monday of July, 1913, for the purpose of equalizing the assessment of all property entered upon the real property assessment-roll, and heard and determined all complaints in regard to the assessment of such property, and also examined the real property assessment-roll tract by tract, name by name, and the value of each item of property assessed, although the minutes of the meeting of said board of equalization through the inadvertence of the clerk recited that the board met as a board of county commissioners, when in truth and in fact they met as a board of equalization; held, that it was not error for the trial court to permit counsel for defendant upon cross-examination to establish the fact that said board met as a board of equalization.

4. Held, from an examination of the entire record in this case, that the trial court did not err in granting respondent's motion for nonsuit, nor in refusing to grant appellant's motion for a new trial.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. R. N. Dunn, Judge.

Action to remove county official under provisions of sec. 7459, Rev. Codes, Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

F. A. McCall, O. C. Granger, Peter Johnson and Black & Wernette, for Appellant.

In the case of Rankin v. Jauman, 4 Idaho 53, 36 P. 502, which was an action similar to the one at bar, this court held that the proceeding was not a criminal proceeding and was not intended for punishment, but was intended to protect the people from corrupt officials. That case was later approved and commented upon in the case of Ponting v. Isaman, 7 Idaho 283, 62 P. 680.

Boards of county commissioners and boards of equalization, although composed of the same persons, are separate and distinct bodies with different duties and powers. (General Custer Min. Co. v. Van Camp, 2 Idaho 40, 3 P. 22; Feltham v. Board of County Commrs., 10 Idaho 182, 77 P. 332.)

When they failed to meet on July 14th as a board of equalization pursuant to their adjournment on the 12th, their session as a board of equalization was terminated for that year. (Gilbert v. Canyon County, 14 Idaho 437, 94 P. 1029; Marsh v. People, 226 Ill. 464, 80 N.E. 1006; Peterson v. First Nat. Bank, 8 Kan. App. 508, 56 P. 146.)

H. H. Taylor, for Respondent.

A prosecution for removal of a public officer is a crime, and in contemplation of sec. 6309, Rev. Codes, and the procedure provided, it cannot be that the provisions of Senate Bill 28, 1909, Session Laws, were intended to permit the cross-examination of one who might be removed from office and assessed to pay $ 500 as a penalty. (Thurston v. Clark, 107 Cal. 285, 40 P. 435; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150.)

The court did not err in granting defendant's motion to strike out paragraph 8 of the information. That motion was made upon the ground that the court did not have jurisdiction to try and hear the same under an information filed by a private individual under sec. 7459, for the reason that the offense, if any, was a misdemeanor, malfeasance in office and could only be prosecuted under an indictment. (Corker v. Pence, 12 Idaho 152, 85 P. 388; Siebe v. Superior Court, 114 Cal. 551, 46 P. 456; Minkler v. State, 14 Neb. 181, 15 N.W. 330.)

The law specifically requires the board to sit as a board of equalization, and they could not adjourn if they had so desired; they were physically present, and the writing of the minutes of the clerk erroneously speaking of a board of commissioners would have no effect upon the actual facts. (Fowler v. Russell, 45 Kan. 425, 25 P. 871; Symns v. Graves, 65 Kan. 628, 70 P. 591.)

"As long as the board had not terminated its session by an adjournment sine die, or the session had not terminated by operation of law, the mere fact that an adjournment was taken to some future date would not operate as a termination of the regular session." (Gilbert v. Canyon County, 14 Idaho 429, 94 P. 1027.)

The provisions of this section are for the general guidance of the county commissioners and for their orderly procedure and for the benefit of the public, and are not mandatory. (Buswell v. Board of Supervisors, 116 Cal. 351, 48 P. 226.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This action was brought by appellant in the district court of the eighth judicial district against respondent under sec. 7459, Rev. Codes, for the purpose of obtaining respondent's removal from office as a member of the board of county commissioners of Bonner county and for judgment in the sum of $ 500 in favor of the informer as provided for in that section.

The information sets forth two causes of action. A demurrer, however, was interposed to the first cause of action and by the trial court sustained, which action of the trial court is not involved in this appeal.

This cause was tried to the court without a jury upon the second cause of action. After appellant's testimony was introduced, counsel for respondent interposed a motion for nonsuit which was granted. Judgment was thereupon entered for respondent dismissing the second cause of action. Thereafter a motion for a new trial was made by appellant and by the trial court overruled. This is an appeal from the order of the trial court overruling appellant's motion for new trial.

There are fifty-seven errors assigned in appellant's brief. For the purpose of disposing of this appeal, however, we will consider only such as we deem necessary under three heads.

The first error assigned is based upon the action of the trial court in sustaining the objection made by counsel for respondent when respondent was called by appellant for cross-examination in pursuance of the provisions of sec. 1, Senate Bill 28, Sess. Laws 1909, p. 334.

From the record it appears that at the beginning of the taking of testimony appellant, for the purpose of making out his own case, called respondent as a witness; whereupon counsel for respondent objected to respondent's giving any testimony in support of the information upon the ground that the proceedings were brought under sec. 7459, Rev. Codes, providing for the removal of public officials, which proceeding is in its nature and effect a criminal action, coming within sec. 13, art. 1 of the constitution, which provides that "No person shall be . . . . compelled in any criminal case to be a witness against himself."

The trial court sustained the objection, and this action on the part of the court is fully supported by the supreme court of the United States in the case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and by the supreme court of California in the case of Thurston v. Clark, 107 Cal. 285, 40 P. 435. In the latter case the court aptly said: "Removal from office under the summary proceeding provided for by section 772, supra [which is substantially identical with sec. 7459, Rev. Codes], is a punishment for wrongdoing by the class of officials designated in chapter 2 of title 2 of part...