Hudson v. Bertsch
| Decision Date | 31 October 1923 |
| Citation | 220 P. 109,38 Idaho 52 |
| Parties | M. F. HUDSON, Respondent, v. GUS BERTSCH, Probate Judge of Butte County, Appellant |
| Court | Idaho Supreme Court |
OFFICER-REMOVAL-ILLEGAL FEES.
1. An honest claim for expenses actually incurred by an officer in the discharge of his official duties, even if such expenses are not a legal charge against the county, cannot be made a ground for removal of such officer for charging and collecting illegal fees for services rendered in his office.
2. The word "fee" as used in C. S., sec. 8684, means a charge for services.
APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. F. J. Cowen, Judge.
Proceeding to remove probate judge under C. S., sec. 8684. Judgment for plaintiff. Reversed.
Judgment reversed, with costs to appellant.
E. J Dockery, for Appellant.
The court erred in finding that appellant collected illegal fees as to each or any count of the information.
When it is shown that the officer acted in perfect good faith, and under an honest conviction that he was entitled to the compensation claimed and collected, it is error to remove him from his office. (Ponting v. Isaman, 7 Idaho 581, 65 P. 434; Corker v. Pence, 12 Idaho 152, 85 P. 388; Collman v. Wanamaker, 27 Idaho 342, 149 P. 292; Collman v. Gordon, 27 Idaho 351, 149 P. 294; McRoberts v. Hoar, 28 Idaho 163, 152 P. 1046; State v. Meek, 148 Iowa 671, Ann. Cas. 1912C, 1075 127 N.W. 1023, 31 L. R. A., N. S., 566; State v. Roth, 162 Iowa 638, 144 N.W. 339, 50 L. R. A., N. S., 841; Law v. Smith, 34 Utah 394, 98 P. 300.)
Chase A. Clark, Solon B. Clark and W. J. Lamme, for Respondent.
The probate judge had no authority to collect the fees which it is admitted in the record he collected. The fees were illegal because he had no authority to act. He acted and collected the fees as shown by the evidence as a result of the unlawful exercise of his authority as probate judge of Butte county. (Note to State v. District Court, Ann. Cas. 1913B, 401.)
This action was brought by respondent to remove appellant from the office of probate judge of Butte county. The information contained forty-seven counts specifying instances in which appellant had charged and collected illegal fees for services rendered in his office and in which he had neglected to perform official duties pertaining to his office. The court sustained a demurrer to all of the counts except the first thirty-five, all of which alleged the charging and collecting of illegal fees for services rendered in his office of probate judge. On the trial the court found all of the thirty-five charges sustained by the evidence and entered judgment removing appellant from the office of probate judge and required him to pay respondent the sum of $ 500, with the costs of the action.
The appeal is from the judgment. Appellant complains that the evidence is insufficient to sustain the findings of the court and that the court erred in holding that the several sums collected were illegal fees.
There is no conflict in the evidence. It appears that the board of commissioners of Butte county entered into an agreement with appellant that he should discharge the duties of probation officer in that county and that his actual and necessary expenses would be paid by the county. Every item in the thirty-five counts was for expenses...
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