Robinson v. Huffaker

• Decision Date: 30 December 1912
• Parties: B. A. ROBINSON, Appellant, v. W. D. HUFFAKER, Respondent
• Court: Idaho Supreme Court

129 P. 334

23 Idaho 173

B. A. ROBINSON, Appellant, v. W. D. HUFFAKER, Respondent

Supreme Court of Idaho

December 30, 1912

COUNTY COMMISSIONERS-REMOVAL FROM OFFICE-ILLEGAL CHARGES AGAINST COUNTY-ILLEGAL FEES AND CONTRACTS-FAILURE TO PERFORM OFFICIAL DUTIES-FEES.

(Syllabus by the court.)

1. Where a member of the board of county commissioners enters into a contract with the board of county commissioners of which he is a member, for the sale of personal property to the county by such member, and such contract is void under the statute, the board of county commissioners has no authority to allow the claim for such purchase price as a claim against the county. Such claims are illegal and void and are not authorized by law. (Secs. 255, 1946 and 1956 Rev. Codes.)

2. A member of the board of county commissioners cannot lease, or contract with the board for the use of real or personal property owned by him, where the statute forbids the making of such contract; nor can a claim for the contract price be filed as a claim against the county, and an allowance of such claim is void.

3. A member of the board of county commissioners cannot file or claim a compensation for extra services rendered to the county which are not authorized by law, where such member is paid a salary under the law for his services as such member of the board, although such extra services are rendered for the benefit of the county.

4. Where a member of the board of county commissioners presents a claim against the county for the purchase price of a book-press, or for services in inspecting roads and bridges at $4 per day, or for services in viewing roads and bridges on behalf of the county, or for superintending the transcribing of records where the county is created out of another county, or for any other services, and such claims are not specially provided by law to be paid by the county such claims are void, for the reason that the statute provides for the compensation of the commissioner by fixing his salary and expenses as his full compensation.

5. Where the statutes of the state impose certain duties upon the board of county commissioners, and require certain reports and the performance of certain duties the county commissioners have no right or authority to exercise the arbitrary judgment that such reports are unnecessary and impracticable, for the reason that it is the duty of a public officer to obey the law, and he cannot justify his acts upon the ground that he does not believe that it will be necessary to obey such law.

6. Where an officer accepts an office with compensation fixed by law, he is bound to perform the duties for the compensation and such officer has no legal claim for extra compensation, and a promise by the board to pay him an extra fee or sum beyond that fixed by law, is not binding, although he renders services and exercises a degree of diligence greater than could legally have been expected of him.

APPEAL from the District Court of the Ninth Judicial District for Bonneville County. Hon. James G. Gwynn, Judge.

Action to remove a county commissioner for allowing illegal fees and charges against the county, and for failure to do his duty. Reversed.

Reversed and remanded. Costs awarded to appellant.

Phil Averitt, A. S. Dickinson, R. S. Meyer and C. E. Crowley, for Appellant.

The sale of the book-press by respondent to the county clearly falls within the things forbidden by sec. 7459, as it is not an expense item for expenses claimed to have been incurred by defendant for the use and benefit of Bonneville county in the discharge of his official duty. He cannot escape penalty of the law by claiming that he should have been prosecuted by information by the county attorney as for claiming illegal expenses incurred in the discharge of the duties of his office. (Rev. Codes, sec. 1956; Stookey v. Board of Commrs., 6 Idaho 542, 57 P. 312; Miller v. Smith, 7 Idaho 204, 61 P. 824.)

He who is in the slightest, guilty of charging and collecting an illegal fee for services rendered or to be rendered in the discharge of his official duties is subject to removal, and the additional penalty provided by law. (1911 Sess. Laws, pp. 193, 194; Clyne v. Bingham County, 7 Idaho 75, 60 P. 76; Rankin v. Jauman, 4 Idaho 394, 39 P. 111; Miller v. Smith, supra; San Luis Obispo County v. Petit, 100 Cal. 442, 34 P. 1082; Frenzer v. Dufrene, 58 Neb. 432, 78 N.W. 719; Rogers v. Portland & B. St. Ry., 100 Me. 86, 60 A. 713, 70 L. R. A. 574; State v. O'Brien, 94 Tenn. 79, 28 S.W. 311, 26 L. R. A. 252; Dillon, Mun. Corp., 3d ed., sec. 233; Board of Commrs. v. Brett, 32 Okla. 853, 124 P. 57.)

It was error for the court to overrule the informant's objection to the testimony of the defendant, while testifying as a witness in his own behalf, to the effect that he acted in good faith and with an honest intent in filing and collecting bills, for overseeing the transcribing of the records of Bingham county for Bonneville county. The rule has been announced by this court that the defendant's testimony to such effect will not be received, and he is estopped from so testifying, and the same is incompetent. (Dennison v. Willcut, 3 Idaho 793, 35 P. 698; San Luis Obispo County v. Petit, supra; Frenzer v. Dufrene, supra.)

William L. McConnell and St. Clair & St. Clair, for Respondent.

Corrupt or wilful allowance of illegal claims by the county commissioners may be reached by proceedings under sec. 7445 or by appeal, but not by proceedings under the provisions of sec. 7459. (Corker v. Pence, 12 Idaho 152, 85 P. 388; Crossman v. Lesher, 97 Cal. 382, 32 P. 449; Law v. Smith, 34 Utah 394, 98 P. 300.)

The evidence in this case clearly supports the court's special finding No. 1, that the charge for the book-press was not a fee within the meaning of sec. 7459.

The respondent in this case stands in practically the same position as did the commissioner in Ponting v. Isaman, 7 Idaho 581, 65 P. 434, wherein a commissioner was sought to be removed for advancing $ 100 to an attorney who represented the county in a civil suit and who afterward filed a bill for allowance for the money so advanced.

Respondent in this action did not make the sale of the article in question to the county, as a county commissioner, nor did he present his claim against the county as such officer. (Ponting v. Isaman, supra.)

Before an official can be removed from office and fined under the provisions of sec 7459, the court must find that such fees were knowingly, wilfully or corruptly taken. (Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was instituted in the district court of the ninth judicial district of Idaho for Bonneville county, on the 1st day of April, 1912, and was brought under sec. 7459 of the Rev. Codes. The information charges W. D. Huffaker with knowingly, intentionally and illegally charging and collecting fees to which he was not entitled by law as a member of the board of county commissioners for said county, and with knowingly, intentionally and illegally failing, neglecting and refusing to perform his official duties as a member of said board of county commissioners.

Two causes of action are stated, wherein it is alleged that the defendant filed various bills at different times for allowance to himself by said board, and wrongfully, intentionally and illegally assisted in allowing the same, collected the money therefor and converted the same to his own use, when in truth and in fact said bills on their face show that they were illegal charges against the county, and that they were for services which, if rendered by the defendant to the county, he could not lawfully make a charge and collect pay therefor. Among these items mentioned in the first cause of action are charges for services rendered the county in viewing roads and bridges, for certain articles furnished said county by the defendant, and for services rendered in the overseeing and transcribing of the records of Bingham county for Bonneville county. In the second cause of action the defendant is charged with knowingly, wilfully and intentionally failing and neglecting and refusing to perform certain duties of his office as a member of the board of county commissioners which are imposed upon boards of county commissioners by law.

On the filing of such petition a citation was issued. The defendant appeared and filed an answer. In the answer he admits that he is a member of the board of county commissioners of Bonneville county; admits that he filed for allowance each and all of the bills set out in the information; admits that he assisted in causing the same to be allowed; admits that he collected the money therefor and appropriated the same to his own use; but he denies that he knowingly, unlawfully and intentionally collected any illegal fees from said county, and affirmatively alleges that said bills were not for the purposes and charges stated therein, and alleges that they were expense items which were a lawful charge against the county, and denies that he unlawfully appropriated any funds of the county to his own use. He also alleges that said bills were not for services rendered to the county as shown upon their face, notwithstanding they were sworn to by him, but that they were for the use of team and buggy furnished by defendant, and for feed for such team, and for board and lodging of defendant while viewing roads and bridges and rendering other services as commissioner of said county.

Answering to a part of the information as to articles furnished the county, and the overseeing and transcribing of the records of Bingham county for Bonneville county, he seeks to justify his acts...