McRoberts v. Hoar

• Decision Date: 30 October 1915
• Parties: P. E. MCROBERTS, Appellant, v. BLAIR E. HOAR, Respondent
• Court: Idaho Supreme Court

152 P. 1046

28 Idaho 163

P. E. MCROBERTS, Appellant, v. BLAIR E. HOAR, Respondent

Supreme Court of Idaho

October 30, 1915

PUBLIC OFFICIALS-GROUNDS FOR REMOVAL UNDER SEC. 7459, REV CODES-FEES-INFORMATION-PROPER ACTS TO BE ALLEGED-PUBLIC OFFICIAL'S CONTRACTS-INCREASED COMPENSATION-VOID-MONEY PAID THEREUNDER RECOVERABLE.

1. Held, that under sec. 7459, Rev. Codes, there are two grounds provided for the removal of a public officer: First, where he is guilty of charging and collecting illegal fees for services rendered or to be rendered in his office; and second, where he has refused or neglected to perform official duties pertaining to his office.

2. The term "fees," as used in sec. 7459, Rev. Codes designates the sums authorized by law to be charged for services rendered by a public officer in the discharge of his duties as prescribed by law.

3. Sec 7459, Rev. Codes, is a penal statute and intended to punish public officials for charging and collecting illegal fees for services rendered in their official capacity, or for neglecting to perform official duties pertaining to their office. And for these offenses a public officer can be informed against and prosecuted by a private person.

But no proceeding can be maintained by a private individual against a public official under this statute for any other kind of misconduct.

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

4. Where it affirmatively appears on the face of an information that the public officer did not charge or collect illegal fees for services rendered in his office, but that such compensation was paid him under a contract entered into for services rendered independent and outside of the duties of his office, sec. 7459, Rev. Codes, does not apply. (Corker v. Pence, 12 Idaho 152, 185 P. 388; Ponting v. Isaman, 7 Idaho 283, 284, 62 P. 680; and Collman v. Wanamaker, 27 Idaho 342, 149 P. 292, cited and followed.)

5. Where, in an action to remove a public officer under sec. 7459, Rev. Codes, the informer relies on the collection of illegal fees as the basis of his complaint, it must be alleged and proved by competent evidence that the official was guilty of charging and collecting illegal fees for services rendered in his office while acting in his official capacity; that he charged and collected fees not authorized by law for services prescribed by law; or that he presented for allowance to the board of county commissioners for services rendered in his office and in his official capacity, a claim or claims for fees which were illegal and which illegal fees were allowed to, and appropriated by, said officer for his own use and benefit.

[As to "cause" for which a public officer may be removed, see note in 135 Am.St. 251.]

6. Where the information by which a public official is sought to be removed from office charges with certainty the specific act for which the removal is sought, and from such act it clearly appears that no illegal fees were charged or collected, such information does not state facts sufficient to constitute a cause of removal under sec. 7459, supra.

7. Held, that under the provisions of sec. 7, art. 18 of the constitution, sec. 2115, Rev. Codes, as amended by Sess. Laws 1913, p. 154, sec. 255, Rev. Codes, and sec. 1946, Rev. Codes, a contract entered into between the county treasurer and the board of county commissioners of Clearwater county, by which the county treasurer was to perform certain extra work and receive extra compensation from the county therefor, was void ab initio, as against public policy, and of no force and effect; and that an appeal from the action of the board of county commissioners in letting such contract might have been successfully prosecuted or an action maintained for the recovery of moneys illegally paid thereunder.

APPEAL from the District Court of the Second Judicial District for Clearwater County. Hon. Edgar C. Steele, Judge.

Proceeding to remove a county treasurer under sec. 7459, Rev. Codes. Judgment for defendant. Affirmed.

Judgment affirmed, and costs awarded to respondent.

C. J. Orland and J. R. Becker, for Appellant.

The contract entered into by the defendant was illegal and void and against public policy, for the reason that the defendant was receiving a fixed salary in payment for services rendered by him to Clearwater county, and was not entitled to any additional compensation for any services rendered to said county. (Robinson v. Huffaker, 23 Idaho 173, 129 P. 334; Humboldt County v. Stern, 136 Cal. 63, 68 P. 324; 11 Cyc. 429; Irwin v. Yuba County, 119 Cal. 686, 52 P. 35; Power v. May, 114 Cal. 207, 46 P. 6; Mitchell v. Stoner, 9 Cal. 203; Raymond v. Madison County, 5 Mont. 103, 2 P. 306; Evans v. City of Trenton, 24 N.J.L. 764; Territory v. Carson, 7 Mont. 417, 16 P. 569; Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 P. 483.)

In the case of State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 P. 1103, the court had under consideration sec. 9006 of the Montana code, which conforms substantially to our sec. 7459. (People v. O'Brien, 96 Cal. 171, 31 P. 45; Miller v. Smith, 7 Idaho 204, 61 P. 824; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111.)

The contention that this procedure is not applicable to defendant's case is fully answered in the case of Skeen v. Craig, 31 Utah 20, 86 P. 487, which cites and follows Idaho cases. See, also, Law v. Smith, 34 Utah 394, 98 P. 300; Skeen v. Paine, 32 Utah 295, 90 P. 440; Skeen v. Chambers, 31 Utah 36, 86 P. 492.

D. E. Hodge and G. W. Tannahill, for Respondent.

"When it is shown that such officer acted in perfect good faith, and under an honest conviction that he was entitled to the compensation claimed and collected, and was acting under the legal advice of the county attorney, it is error to remove him from his office." (Ponting v. Isaman, 7 Idaho 581, 65 P. 434.)

Officers may recover for services not connected with their official duties, provided there shall have been a promise to pay them therefor upon the part of the municipal corporation employing them, or that the law implies a promise to pay. (Converse v. United States, 62 U.S. 463, 16 L.Ed. 192; United States v. Brindle, 110 U.S. 688, 4 S.Ct. 180, 28 L.Ed. 286; Baker v. Board of Commissioners, 9 Wyo. 51, 59 P. 797; State v. Flynn, 161 Ind. 554, 69 N.E. 159; Kollock v. Dodge, 105 Wis. 187, 80 N.W. 608; Board of Commrs. v. Mitchell, 131 Ind. 370, 30 N.E. 409, 15 L. R. A. 520; State ex rel. Board of Commrs. v. Shutts, 161 Ind. 590, 69 N.E. 397; 2 Abb. Mun. Corp., sec. 686a; United States v. Hill, 120 U.S. 169, 7 S.Ct. 510, 30 L.Ed. 627; Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696.)

There is no allegation in the information anywhere showing that Hoar collected, or attempted to collect, any of the "fees" provided by sec. 7459, Rev. Codes.

The allegation is, that he collected a compensation, contracted for openly by him, with the county commissioners. The question of whether that act was lawful or unlawful should not be tried out in this sort of a proceeding. (Corker v. Pence, 12 Idaho 152, 85 P. 388; In re Stow, 98 Cal. 587, 33 P. 490; Triplett v. Munter, 50 Cal. 644; Crossman v. Lesher, 97 Cal. 382, 32 P. 449; Smith v. Ling, 68 Cal. 324, 9 P. 171; Skeen v. Craig, 31 Utah 20, 86 P. 487.)

It is not the intention of the act in question to punish officials for acts committed, be they right or wrong, perpetrated outside of, and not within the scope of, the duties imposed upon them by the precise office in question. (Thurston v. Clark, 107 Cal. 285, 40 P. 435.)

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

OPINION

BUDGE, J.

The respondent, Blair E. Hoar, was, on January, 23, 1913, the duly elected, qualified and acting county treasurer of Clearwater county. On the 23d day of that month the board of county commissioners made and caused to be entered in its minutes the following order:

"It is ordered by the board that Blair E. Hoar be allowed the sum of $ 75 monthly, as special compensation for the work of bringing the land indexes of the county up to present ownership of property; said compensation to cease when Blair E. Hoar becomes tax collector of Clearwater county."

On April 23, 1913, respondent presented his claim for special compensation for labor performed bringing land indexes up to present ownership, three months at $ 75, as per order of the board of county commissioners of date January 23, 1913, $ 225. This claim was allowed by the board of county commissioners on the same date it was presented and warrants were issued therefor, which warrants were paid in due course.

Thereafter, on April 25, 1913, the board of county commissioners made and entered the following resolution:

"Whereas: That in view of the fact that the county treasurer has not yet taken up the duties of tax collector and that the matter as to the date on which these duties are to be assumed has been taken into court, therefore be it

"Resolved by the board that the order of Jan. 23, 1913, granting special compensation to Blair E. Hoar for bringing the land indexes of the county up to present ownership be at this time rescinded and compensation be discontinued until a future date."

An information was filed by the complainant on March 5, 1914, under the provisions of sec. 7459, Rev. Codes, setting forth in detail the transactions above recited with reference to the special compensation of $ 75 per month allowed and paid to the respondent. The information prays for the removal of the respondent from office and judgment for $ 500 and costs, and citation issued thereon. A demurrer was filed to the information and, by the court, overruled.

On March 23, 1914, an answer was filed by the defendant denying the intentional, wilful or...