Miller v. Smith

Decision Date21 June 1900
PartiesMILLER v. SMITH
CourtIdaho Supreme Court

APPEAL from District Court, Fremont County.

Judgment affirmed. Costs of appeal awarded to respondent.

Dietrich Chalmers & Stevens, for Appellant.

The paramount object of such statutes as section 7459 of the Revised Statutes of Idaho is the removal from office of incumbents who knowingly, willfully and corruptly use their official position as a medium for extortion and wrong. (Smith v. Ling, 68 Cal. 324, 9 P. 171; People v Nichols, 79 N.Y. 588; Gorman v. County Commrs., 1 Idaho 559.) It is indispensable that the informer prove not only that the defendant had done the acts complained of, but that he had done them knowingly, willfully and corruptly. (Triplett v. Munter, 50 Cal. 644; Smith v Ling, 68 Cal. 324, 9 P. 172; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111, 1113.) So far as shown by the record, the acts complained of operated for the benefit and not to the injury of the public. (Osborn v. Ravenscraft, 5 Idaho 612, 51 P. 618.) Conclusions of law are everywhere commingled with findings of fact in apparent defiance of the plain and imperative provisions of the law. (Idaho Rev. Stats., sec. 4407; 3 Estee's Pleadings, 4th ed., sec. 4655, and citations.) The findings of fact do not cover all the issues and are therefore insufficient to support the decision of the court or the judgment herein. (Wilson v. Wilson, 6 Idaho 597, 57 P. 708.) The board of county commissioners "has a reasonable discretion in the administration of county affairs and in the allowance of claims for services performed for the county by a county officer, for which no specified fees are allowed by law. (Board of Commrs. v. Leonard, 3 Colo. App. 576, 34 P. 583; Idaho Rev. Stats., sec. 1759, subds. 4, 22.)

Hawley, Puckett & Hawley, J. A. Bagley and P. Averitt, for Respondent.

Appellant seemingly in his answer fails to distinguish between the general supervisory power of the board of county commissioners over county matters, and their right to actually perform the duties of a particular officer. If the decision in Rankin v. Jauman is correct we must have judgment affirmed in this cause also, as the same reasons tenfold intensified apply here that did there.

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This action was commenced by the respondent, who is a citizen and taxpayer of Fremont county, against the appellant, who is a member of the board of county commissioners of said county, demanding his removal from said office, under the provisions of section 7459 of the Revised Statutes, and to recover the statutory penalty of $ 500 therein provided for. The information or complaint accuses the appellant of charging and collecting illegal fees for services rendered in his office, and knowingly, willfully and corruptly approving official bonds given by certain county officers, and of doing other acts in his official capacity in violation of law. It contains upward of sixty specifications of official misconduct. The answer admits some of the specifications of the information, and denies others. The trial was by the court, which made its findings of fact and conclusions of law in writing, and entered judgment against appellant, removing him from his said office, and in favor of the respondent for the statutory penalty of $ 500 and costs of suit. The appeal is from the judgment.

A motion to dismiss this appeal was made by respondent on the ground that the judgment in this proceeding was final, and no appeal would lie therefrom. Section 9, article 5, of the constitution of Idaho is as follows: "The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts or the judges thereof. The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction." This section and our statutes of appeal clearly authorize an appeal from the judgment in a proceeding to remove an officer, and the appeal herein is authorized.

Section 7459 of the Revised Statutes, under which this proceeding is brought, is as follows: "When an information in writing, verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for $ 500 in favor of the informer and such costs as are allowed in civil cases." By the information or complaint filed, the defendant is accused of charging and collecting illegal fees for services rendered by him, and is also accused of refusing and neglecting to perform official duties pertaining to his office as county commissioner. The illegal fees are alleged to have been charged and collected for services in receiving a bridge, for furnishing stray brands, for blacksmith work, and for presenting and having allowed by the board the following claims, among others, to wit:

St. Anthony, Idaho July 19, 1899.

Fremont County, Idaho to James Smith, Commissioner

Dr.

April 18 and 19, Receiving bridges at Rudy, by order of

chairman, two days, at $ 6

$ 12 00

May 22. To Edmunds road district to order bridges

placed across canals, one day, $ 6

6 00

May 29. Trip to Market Lake to order repairs on roads

and bridges, 4 days, at $ 6

24 00

Expenses horse feed at Rexburg

$ 50

Expenses horse feed at Market Lake

3 00

Expenses horse feed at Rexburg

50

4 00

June 27. To Texas Slough Bridge to have bridge re

paired, one day

6 00

Horse feed

50

$ 52 50

Also the following claim, it is alleged, was presented and allowed.

Fremont County, Idaho to James Smith, Commissioner, Dr.

To services rendered in connection with the breaking down of South Fork Bridge, by order of the chairman of board, Oct. 2, 3, 4, 5, 6, 7, 9 (seven days at $ 6) $ 42 00

The following is an item from another bill presented by and allowed to the defendant:

To repairs on road from Lodi to Island Park, as per instructions from board, July 29th, 31st, Aug. 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th (11 days at $ 6.00)..$ 66 00

We quote the above as samples of bills presented by the defendant Smith, as county commissioner, and allowed by the board of which he was a member.

The defendant testified in his own behalf that his belief and understanding were that it was his duty, as county commissioner, to take care of all roads and bridges, where it was absolutely necessary and that he should get therefor six dollars per day. This court held in Rankin v Jauman, 4 Idaho 394, 39 P. 1111, as follows: "The per diem allowed by the statute to members of the board of county commissioners is only chargeable for the time the board is actually in session. The law does not contemplate that members of the board may perform services for the county as individuals, and then charge for it as commissioners. The viciousness of such a course is too apparent to require comment." It is also there held that boards of county commissioners are entireties, and can only act collectively and as empowered. The law does not authorize a member of the board to act for the board, nor has it given a single member of the board, when acting alone, any authority whatever. It is shown that some of the road districts in Fremont county did not have road overseers, and it is shown that the board employed a competent bridge man at five dollars per day, and the record shows that the board of commissioners fixed the compensation of road overseers at two dollars and fifty cents per day. If county commissioners were permitted to usurp the office of road overseer, and perform the duties of such officer, and pay themselves six dollars per day and expenses therefor, road work would cost the taxpayers much more than was contemplated by the law making power; and county commissioners cannot shield their unlawful acts under the plea of ignorance of the law, for, if that would relieve them of persistent and many times repeated unlawful acts, it would be impossible to remove an unfaithful or incompetent officer from office. For it is a well-recognized fact that an officer who persistently and repeatedly violates his official duties will, when called to account, attempt to give very plausible reasons for such violations of the law. County commissioners are provided by law with a legal adviser, in the county attorney, and are expected to keep within the law, especially in matters already passed upon by the courts. In the case of Rankin v. Jauman, 4 Idaho 394, 39 P. 1111--a case quite similar to the one at bar--the court held that the compensation of county commissioners was fixed by law at six dollars per day, and that commissioners could not act except as a board, as an entirety. That was a case where the commissioner attempted to perform the duties of road overseer, and charged the county six dollars therefor,...

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