Rankin v. Jauman

• Decision Date: 05 February 1894
• Parties: RANKIN v. JAUMAN
• Court: Idaho Supreme Court

36 P. 502

4 Idaho 53

RANKIN v. JAUMAN

Supreme Court of Idaho

February 5, 1894

INFORMATION-REMOVAL FROM OFFICE.-When the legal sufficiency of the information presented under section 7459 of the Revised Statutes of 1887 is questioned, it is sufficient if the grounds of the objection thereto are intelligibly presented in writing. The name given to the written objections is not material.

JURISDICTION-CONSTITUTIONAL LAW.-The constitution makes provision for and prescribes the proceeding for the removal or impeachment of state officers for certain misdemeanors, and by section 7459 of the Revised Statutes the legislature has provided for the removal of certain civil officers for the causes named in said section and have then prescribed the proceedings for the summary removal of those officers who come within its provisions.

SUMMARY REMOVAL OF CIVIL OFFICERS.-There is no inhibition in the constitution of Idaho prohibiting the legislature from providing a proceeding and tribunal for the summary removal of all civil officers whose removal is not provided for by the constitution for misdemeanor, incompetency or corruption in office.

DUE PROCESS.-Section 7459 provides due process of law for the removal of the officers therein named for the offenses therein designated.

POWER OF LEGISLATURE.-The exigencies of government require the prompt removal of corrupt or unfaithful officers, and the legislature of this state, under the constitution, has full power to provide for summary removal of such officers.

SECTION 7459 CONSTRUED.-Said section 7459 is not in conflict with the constitution, and does not violate the constitutional provision which requires an information or indictment and trial by jury in criminal cases.

SAME.-The proceeding under said section is not a criminal proceeding and is not intended for punishment, but is intended to protect the people from corrupt officials.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment reversed, with direction.

Hawley & Reeves, for Appellant.

The court should not have considered the motion made by defendant to dismiss, for the reason that such a motion is unknown in our practice and unwarranted by our statutes. This being a special proceeding, the rules of practice applicable to civil actions constitute the rules of practice in this case. (Rev Stats., secs. 4955, 4956, 5005.) A motion to dismiss an action may be made after service in certain specified cases. (Rev. Stats., sec. 4354.) This is not one of them. The citation made necessary by section 7459 is to all intents and purposes a summons. A motion to dismiss or quash summons is allowable in certain cases. (Southern P. R. R. Co. v. Superior Court, 59 Cal. 471; Kent v. West, 50 Cal. 185.) But here the motion is to dismiss the complaint. A dismissal of an action is in effect a final judgment in favor of the defendant, and final decision of the action. (Leese v. Sherwood, 21 Cal. 151; Homer v. Brown, 16 How. (U. S.) 354; Higgins v. Mahoney, 50 Cal. 444.) The facts stated are sufficient to constitute an action under section 7459. That section allows the action to be maintained whenever the officer accused has been guilty of charging and collecting illegal fees. The information charges defendant with having charged and collected, as county commissioner, pay for ninety-six days' services as such commissioner during the first quarter of the year 1893, when in truth he had rendered not to exceed seventeen days' service; and of charging and collecting mileage for four hundred and thirty miles' travel, when in fact he had not traveled any number of miles on county business, and of charging said mileage at the rate of forty cents per mile, when the law only allowed twenty cents per mile; and of doing all this corruptly. We contend that under the California decisions, upon an identical statute, the facts stated are sufficient, unless the act is unconstitutional. (In re Marks, 45 Cal. 199; Triplett v. Minter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171; Fraser v. Alexander, 75 Cal. 147, 16 P. 757; Woods v. Varnum, 83 Cal. 47, 23 P. 137; In re Stow, 98 Cal. 587, 33 P. 490.) Under the former constitution of California, the district courts were not given the power to issue writs of mandamus, etc., but the supreme court said such power attached to them as courts. (Courtwright v. Bear River Co., 30 Cal. 573; Perry v. Ames, 26 Cal. 372.) But is this a proceeding in contravention of the common law? The object of this form of action is to oust an officer for willful and corrupt misconduct in office. Although the incumbent of a public office has a property right in it, yet the office itself is a public trust and is conferred not for his benefit, but for the benefit of the political society. (Cooley on Torts, 375; Beebe v. Robinson, 52 Ala. 66; Ex parte Lambert, 52 Ala. 79.) The whole law-making power of the state, not expressly or impliedly withheld, has been by the constitution committed to the legislature. (Cooley's Constitutional Limitations, 106; People v. Draper, 15 N.Y. 532.) It is not, therefore, a civil action as defined by section 1 of article 5, nor is it a criminal action as defined by said section. The action is penal in its nature, but that does not make it a criminal action, as penal is not criminal when an action is referred to. (18 Am. & Eng. Ency. of Law, 268, and note 4; St. Louis etc. Ry. v. State, 56 Ark. 166, 19 S.W. 573; State v. Indiana etc. Ry. Co., 133 Ind. 69, 32 N.E. 817, 18 L. R. A. 502.) We look in the constitution of the United States for grants of legislative power, but in the constitution of the state to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the state was vested in its creation. (Cooley's Constitutional Limitations, 207.)

George Ainslie and W. E. Borah, for Respondent.

This is a proceeding under the provisions of section 7459 of the Revised Statutes, to remove from the office of county commissioner of Ada county the respondent. The motion to dismiss has been recognized as proper in this proceeding by the supreme court of California. (In re Smith v. Ling, 68 Cal. 324, 9 P. 171; In re Grove, 61 Cal. 438; Hallock v. Jaudin, 34 Cal. 173; Tootle v. French, 3 Idaho 1, 25 P. 1091.) This act was designed to afford a remedy of a summary character against office holders who were guilty of extortion or neglect in the performance of official duty. (In re Marks, 45 Cal. 199; Lydick v. Palmquist, 31 Neb. 300, 47 N.W. 918; Phoenix Ins. Co. v. Bohman, 28 Neb. 251, 44 N.W. 111; Cobbey v. Burke, 11 Neb. 157, 38 Am. Rep. 364, 8 N.W. 386; Triplett v. Munter, 50 Cal. 644; Graham v. Kibble, 9 Neb. 182, 2 N.W. 455; Coats v. Wallace, 17 Serg. & R. 75; Shattuck v. Wood, 1 Pick. 171; Commonwealth v. Beagle, 7 Pick. 279; Hays v. Stewart, 8 Tex. 358; Crossman v. Lesher, 97 Cal. 382, 383, 32 P. 449; Dunlap v. Curtis, 10 Mass. 210; United States v. Harned, 43 F. 376; Runnells v. Fletcher, 15 Mass. 525.) The leading rule for the construction of statutes is to ascertain the intention of the legislature in enacting the statute, and the intent, when ascertained, will prevail over the literal sense. (State v. Ross, 20 Nev. 61, 14 P. 827; Thorpe v. Schooling, 7 Nev. 15.) In interpreting the statutes, the primary object is to ascertain the intent of the legislature, and while the title forms no part of the law, it will be referred to to ascertain that intent. (Johnson v. Squires, 55 Cal. 103; Barnes v. Jones, 51 Cal. 303; Weed v. Maynard, 52 Cal. 459.) The right of trial by jury shall remain inviolate. (Idaho Const., art. 1, sec. 7, art. 21, sec. 20.) There is nothing in the case which, in either branch of it, offers ground for equitable jurisdiction, and when that is the case, the right of trial by jury is absolute and cannot be denied. (Fire Department of New York v. Harrison, 2 Hilt. 455; Enderman v. Ashley, Sneed (Ky.), 53; Willis v. Legris, 45 Ill. 289; State ex rel. McCalla v. Burnsville, 97 Ind. 416; Idaho Const., art. 1, sec. 2; State v. Jackson, 46 Ark. 137; State v. Brisco, 80 Mo. 643.) It is well settled that every removal from office for wrongdoing is, in law, a punishment for crime. (Dullam v. Willson, 53 Mich. 392, 51 Am. Rep. 128, 19 N.W. 112, 124; Regina v. Marshall, 30 Eng. L. & Eq. 204; Barker v. People, 3 Cow. 686, 15 Am. Dec. 322.) Corrupt misconduct in office was a well recognized common-law crime. (Russell on Criminal Law, 14; 1 Bishop's Criminal Law, 459; Regina v. Mayor, 2 Jur. 64.) Under our constitution, officers can only be removed by impeachment. The constitution makes no provision for any such proceedings as are attempted to be had there. It might have created a special tribunal, or authorized them to have been created. It has not done so. (Dullam v. Willson, 53 Mich. 392, 51 Am. Rep. 128, 19 N.W. 112; Const., art. 5, secs. 2, 20; In re Mark, 45 Cal. 199; State v. Gilmore, 20 Kan. 551, 27 Am. Rep. 189.)

SULLIVAN, J., HUSTON, C. J. HUSTON, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

On the ninth day of December, 1893, W. A. Rankin filed in the district court of Ada county an accusation in writing, duly verified, alleging that the defendant, William Jauman, has been since the second day of January, 1893, a member of the board of county commissioners of Ada county, duly elected qualified, and acting as such; that the defendant has at various times since said second day of January, 1893, while acting in his capacity as a member of said board, knowingly, willfully, and corruptly, charged illegal fees for services rendered, and pretended to have been rendered, while so acting; and that on the sixteenth day of January, 1893, the defendant presented to said board, for allowance, his bill for services rendered from and...