Ponting v. Isaman

• Decision Date: 27 April 1901
• Citation: 7 Idaho 581,65 P. 434
• Parties: PONTING v. ISAMAN
• Court: Idaho Supreme Court

65 P. 434

7 Idaho 581

PONTING v. ISAMAN

Supreme Court of Idaho

April 27, 1901

REMOVAL OF COUNTY COMMISSIONER FROM OFFICE-ILLEGAL CHARGES AGAINST COUNTY.-When proceedings under section 7459 of the Revised Statutes are brought to remove a county officer, and the court finds that such officer acted honestly in making such charges against his county, and honestly believed at the time he presented his claim for allowance, and when he collected the same, that such charges were legal, it is error to remove him from office, and enter judgment against him for the penalty provided by said section.

HONESTY OF COMMISSIONER-ADVICE OF COUNTY ATTORNEY.-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.

SAME-MONEY ADVANCED BY MEMBER OF BOARD.-When the board of commissioners have legally employed an attorney in a civil case, wherein the county is a party, as shown by the facts of this case and such attorney demands his fee when the board is not in session, and a member of such board advances the same, he may recover it from the county.

FINDINGS OF FACT-JUDGMENT.-If the findings of fact do not support the judgment, the judgment must be reversed.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant.

Eugene O'Neill and Miles S. Johnson, for Appellant.

This action is commenced under section 7459 of the Revised Statutes, which allows an individual, in certain specified instances, to file an information for removal of any officer within the jurisdiction of the district court. (State v Chicago etc. R. Co., 37 F. 498.) Justice Brewer in delivering the opinion says: "The distinction between matters of a civil and those of a criminal nature is clear and of frequent mention in the books." Rapalje and Lawrence, at page 21 of their Law Dictionary, say: "An action is 'civil' when it lies to enforce a private right or redress a private wrong. It is 'criminal' when instituted on behalf of the sovereign or commonwealth in order to vindicate the law by the punishment of a public offense." (Burrill's Law Dictionary, 294; Beals v. Thurlow, 63 Me. 9.) The plaintiff does not sue to compel payment of any debt due to himself or for the redress of any wrong done to himself, but simply to enforce a pecuniary penalty against a wrongdoer. (United States v. Two Barrels Whiskey, 96 F. 479; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524; Lees v. United States, 150 U.S. 476, 14 S.Ct. 163; Thurston v. Clark, 107 Cal. 285, 40 P. 435.) The charges made by the defendant for viewing roads was pursuant to an opinion in writing, given by F. Danford, county attorney, the legally constituted adviser of the board, advising them that they were authorized to charge for said services. We respectfully submit that it would be unjust and contrary to public policy to subject an officer to removal, and a fine for honestly following the advice of an attorney provided him by law. And that if anyone should be proceeded against it should be the attorney giving the erroneous advice. In the case of Miller v. Smith, ante, p. 204, 61 P. 826, Justice Sullivan says: "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." (Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171; Woods v. Varnum, 85 Cal. 648, 24 P. 843.)

Benjamin F. Tweedy and James W. Reid, for Respondent.

Payment is no defense. To hold that payment was a defense the effect would be to say to officials, "You may charge and retain all the illegal fees you can collect, and if by chance you are discovered in taxing illegal sums, you need only refund to avoid all penalties for your errors or wrongs." This would not do. (Turner v. Blount, 49 Ark. 361, 5 S.W. 589; Leggett v. Prideaux, 16 Mont. 205, 50 Am. St. Rep. 498, 40 P. 377.) If we hold to the doctrine that ignorance of the plain provisions of the law is no defense, we must hold that the "probative facts" of charging and collecting illegal fees are the facts from which the ultimate facts must be drawn when there is no mistake of fact involved whatever. (Miller v. Smith, ante, p. 204, 61 P. 827.)

SULLIVAN, J. Stockslager, J., concurs. QUARLES, C. J., Dissenting.

OPINION

SULLIVAN, J.

This action was commenced under the provisions of section 7459 of the Revised Statutes, which 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 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." The plaintiff (who is respondent here) filed his verified information in writing, charging the appellant, who was then a county commissioner of Nez Perces county, with knowingly, willfully and corruptly collecting illegal fees to the amount of $ 161.10, and of illegally collecting from said county $ 100, which said defendant had advanced to one M. F. Gose, for his services as a lawyer, rendered in certain cases wherein said county was interested. The information alleges that the defendant as county commissioner collected illegal fees (1) for his services in making inspection of roads; (2) for attending court as a witness; (3) for $ 100 advanced by him to employ an attorney; (4) for collecting mileage to which he was not entitled. The defendant answered, admitting that he had collected the various sums alleged to have been collected by him, but denied that he had willfully or corruptly collected said sums knowing them to be illegal charges against the county.

This cause was once before this court (see Ponting v. Isaman, ante, p. 283, 62 P. 680), and was remanded to the court below for trial. Thereafter the cause came on for trial. Witnesses were examined on behalf of both the plaintiff and defendant, and documentary evidence introduced, and after argument of counsel, the court, being fully advised in the premises, filed findings of fact and conclusions of law, and entered judgment ousting the appellant from his said office, and also entered judgment against him for $ 500 in favor of the plaintiff, informant, as provided by said section 7459. This appeal is from the judgment on the judgment-roll alone, which contains no bill of exceptions, nor any part of the evidence introduced on the trial.

Two points are relied upon for a reversal of the judgment, to wit: 1. That the cause was tried by the judge at chambers, and that the judge had no jurisdiction to try the same; and 2. That the judgment is not supported by the findings.

On the first point the record contains certain affidavits showing that said cause was tried by the judge at chambers. The record and judgment, however, recite that the cause was tried by the court without a jury, and on this appeal we are bound by the record, and for that reason hold that the cause was tried by the court, and not by the judge at chambers.

The second assignment of error is that the judgment is not sustained by the findings. The court finds that the appellant, in making the charges complained of against the county, for services rendered in examining the roads and bridges in his district, and the expenses of team hire connected therewith, honestly believed that it was his duty as such commissioner to perform such services, and that he honestly believed, when making said charges and collecting the same from the county, that he was legally entitled thereto. The court further finds that all of the charges and collections made by the appellant for viewing roads, for work upon roads, and all charges made for services on public roads, were for services actually performed, and that prior to performing such services the board of county commissioners, of which this appellant was a member, required the opinion of the county attorney (who was by law made the legal adviser of said board) as to the duty of said commissioners in viewing proposed roads, and roads being constructed, and that said board received the written opinion of said county attorney to the effect that it was their duty to perform such services in their respective districts, and that they were entitled to compensation therefor; that appellant relied upon the said opinion of the county attorney, and acted upon it in said matter, and from time to time performed such services in his district, and honestly believed that he was entitled to the amount charged and collected by him from the county at the time he charged and collected the same. The court also found that all of the illegal charges made for mileage were for miles actually traveled by appellant in going to and from...