Ponting v. Isaman

• Decision Date: 22 October 1900
• Parties: PONTING v. ISAMAN
• Court: Idaho Supreme Court

62 P. 680

7 Idaho 283

PONTING v. ISAMAN

Supreme Court of Idaho

October 22, 1900

APPEAL-JURISDICTION.-In a proceeding commenced by information under section 7459 of the Revised Statutes to remove a county officer, an appeal will lie on behalf of either the defendant or the informant and in such case the supreme court has jurisdiction of the proceeding on appeal.

MOTION TO DISMISS.-Motion to dismiss an appeal taken by the informant from an order dismissing the proceeding on the ground that the supreme court has no jurisdiction of such appeal, denied.

DEMURRER.-An information seeking to remove a county officer, on the ground that he had in numerous instances charged and collected illegal fees for services rendered by him, is not bad on demurrer on the ground that the information states several causes of action.

REMOVAL OF COUNTY OFFICER.-An information which charges that the defendant, as county commissioner, charged and collected per diem and mileage for services rendered by him in viewing roads and bridges, and that he did so knowingly, wilfully and corruptly, states good cause for removal of such officer under section 7459, of the Revised Statutes, and a demurrer to such information on the ground that the same does not state facts sufficient to constitute a cause of action should be overruled.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

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

B. F Tweedy and James W. Reid, for Appellant.

The supreme court of California holds that it, section 7459 supra, as section 772 of the California code includes willful or corrupt misconduct in office. (Thurston v. Clark, 107 Cal. 285, 40 P. 435; Rankin v. Jauman, 4 Idaho 53, 36 P. 502; Hays v. Simmons, 6 Idaho 651, 59 P. 182.) It is a well-defined public policy in this state that no person acting in an official capacity shall fix the price of materials furnished the public, or fix the compensation for services rendered or to be rendered by him for the public. (Stookey v. Board, 6 Idaho 542, 57 P. 313.) The commissioners cannot ratify an act of a commissioner as an individual to bind the county when, in the first instance, they cannot bind the county by a contract with a commissioner as an individual. (Waymire v. Powell, 105 Ind. 328, 4 N.E. 886; Idaho Rev. Stats., sec. 1782; Waymire v. Board, 105 Ind. 600, 4 N.E. 890.) A fee for services out of session and for mileage out of session cannot be lawfully charged. (Rankin v. Jauman, 4 Idaho 53, 394, 36 P. 502, 39 P. 1111.) Even the board and lodging of a commissioner while in attendance as a member of the board cannot be charged legally and lawfully as a part of the actual and necessary expenses while in the performance of official duty. (Clyne v. Bingham Co., ante, p. 75, 60 P. 76; Ellis v. Bingham County, ante, p. 86, 60 P. 82.) To unlawfully, willfully and corruptly charge and collect money to which an officer is not lawfully entitled from the county is a cause for removal. (State v. Welsh, 109 Iowa 19, 79 N.W. 369.) The defendant knowingly, willfully and corruptly contracted with Miles S. Johnson to defend criminal cases. It is unlawful to employ him to assist in defending criminal actions and unlawful to pay him therefor. (Conger v. Board, 5 Idaho 347, 48 P. 1064; Gorman v. County Commissioners, 1 Idaho 553.) One ground of demurrer is that causes of action are misjoined in the complaint. It is not the idea of the law to divide grounds for removal of an officer into causes of action. The grounds are spoken of as charges. The courts do not test the sufficiency of the charges by technical rules of law. (People v. Therrien, 80 Mich. 187, 45 N.W. 78; Dullam v. Wilson, 53 Mich. 392, 19 N.W. 112, 51 Am. Rep. 128; Burt v. Board, 108 Mich. 523, 66 N.W. 387; Throop on Public Officers, secs. 381-382; Dillon on Municipal Corporations, 4th ed., secs. 254, 255.) The information in favor of the informant is to be liberally construed, if it were a complaint in a civil action, for this is the law as to the construction of pleadings in this state. (Idaho Rev. Stats., sec. 4207; Cantwell v. McPherson, 3 Idaho 721, 34 P. 1065.)

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

In penal actions general allegations are always insufficient. (16 Ency. of Pl. & Pr., 276; People v. Fesler, 145 Ill. 150, 34 N.E. 147; United States v. Borneman, 41 F. 751, 752; State v. Wolfrum, 88 Wis. 481, 60 N.W. 799.) We call special attention to the fact that no allegation is made anywhere in the information, except the bill itself, which is pleading evidence and not facts, showing where any illegal fees have been charged and collected for services rendered by the defendant in his office; or any allegation of his "refusal or neglect to perform the official duties pertaining to his office" said allowance to others being that he "allowed the following bill" and that he "knowingly, willfully and corruptly assisted, etc." (Hedges v. Dam, 72 Cal. 522, 14 P. 133.) A demurrer admits the truth of such facts as are issuable and well pleaded; but it does not admit the conclusions which counsel may choose to draw therefrom, although they may be stated in the complaint. (Branham v. M. & C. C. of San Jose, 24 Cal. 602; Payne v. Dewey v. Treadwell, 16 Cal. 243, 244.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

The respondent moves to dismiss this appeal on the ground that this court has no jurisdiction of the appeal. This contention is based upon the idea that this is a criminal action; that the state is the proper party plaintiff; that no appeal is granted by the statute to the state from an order or judgment in favor of the defendant dismissing the action, and therefore no appeal lies: To sustain this contention we are cited to the case of State v. Ridenbaugh, 5 Idaho 710, 51 P. 750. The decision in that case has no bearing upon the case at bar. This is not a criminal action. It is expressly decided in Rankin v. Jauman, 4 Idaho 53, 394, 36 P. 502, 39 P. 1111, that a proceeding of this kind is not a criminal action. If it be a criminal action, then it would necessarily follow that the action must be prosecuted in the name of the state, and that the prosecution must be upon indictment by a grand jury, or upon information by the public prosecutor, after commitment by a committing magistrate, under the express provisions of our constitution. The object of the statute under which this proceeding is had is to protect the public from corrupt officials, not to punish the offender. Under the provisions of section 9, article 5, of the constitution, and the provisions of section 4807 of the Revised Statutes, an appeal will lie to this court from the final decision of the district court on behalf of either party in a proceeding of this kind. To hold otherwise would be to overturn the theory upon which this court entertained jurisdiction in the following cases, to wit: Rankin v. Jauman, 4 Idaho 53, 36 P. 502; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111; Hays v. Simmons, 6 Idaho 651, 59 P. 182; Hays v. Young, 6 Idaho 654, 59 P. 1113; Smith v. Ellis, ante, p. 199, 61 P. 695; Miller v. Smith, ante, p. 204, 61 P. 824. The motion to dismiss is denied.

We now come to the consideration of the demurrer to the information. The complaint consists of twenty-six paragraphs. The first alleges the official capacity of the defendant. The second, third, fourth, fifth, sixth, seventh, and eighth paragraphs set forth different instances in which the defendant charged and collected out of the county treasury of Nez Perces county, illegal fees for services claimed to have been rendered by him. These charges cover services rendered in viewing bridges and roads, to attendance at court in Vollmer and Bank cases, cash sums claimed to have been advanced by him for attorney fees and other purposes, and for mileage for travel in viewing roads and bridges and attending sessions of the board of commissioners. We quote the sixth paragraph of said complaint as a specimen of the paragraphs charging and collecting illegal fees, to wit:

"S G. Isaman, acting in the capacity of commissioner of Nez Perces county while the board of commissioners of said county, were in session at their rooms in the courthouse at Lewiston, Nez Perces county, Idaho allowed the following bill, to wit:

"'Lewiston, Idaho Sept. 14, 1899.

"'Nez Perces County, Dr., to S. G. Isaman.

To 3 days' services as comrs., 11th, 13th, 14th

$ 18 00

"3 miles

90

"3 days viewing roads

12 00

"20 miles

6 00

"And on the back of the said bill is indorsed the following, to wit:

"'Nez Perces County, Idaho Dr., to S. G. Isaman, cur. ex. fund, $ 36.90. Filed Sept. 14, 1899. P. S. Stookey, Clerk, by , Deputy.'

"'Indorsed and allowed in the sum of $ 36.90, the 14th day of September, 1899. S. G. Isaman, Chairman of Board.'

"'State of Idaho County of Nez Perces, ss.

"'S. G. Isaman, being duly sworn, deposes and says that the within is a just account against Nez Perces county, that the items therein named were furnished as therein stated, and that no part of the same has been paid.

"'S. G. ISAMAN.

"'Subscribed and sworn to before me this 14th day of Sept., 1899.

A. G. JOHNSON,

"'Co. Com. 2d Dist.'

"The items in the said bill of ninety cents, twelve dollars and six dollars, are in addition to the six dollars per diem salary of the said commissioner, S. G. Isaman, and are not for...