Sharp v. Brown

• Decision Date: 03 November 1923
• Parties: CLIFFORD L. SHARP, Respondent, v. ROY BROWN, Appellant
• Court: Idaho Supreme Court

221 P. 139

38 Idaho 136

CLIFFORD L. SHARP, Respondent, v. ROY BROWN, Appellant

Supreme Court of Idaho

November 3, 1923

PUBLIC OFFICE-STATUTES DEFINING DUTIES OF OFFICER-HOW CONSTRUED-SUMMARY REMOVAL UNDER C. S., SEC. 8684.

1. C S., sec. 8684, which provides for the removal of an officer "who has refused or neglected to perform official duties pertaining to his office," is penal in its nature, and should be strictly construed. A court will not remove an officer under this statute unless it is plain that he has neglected or refused to perform an official duty clearly required of him by law.

2. In order for an officer to be subject to removal under this statute, it is not necessary that the acts complained of be done with an evil or corrupt motive, but it must appear that such officer has purposely and intentionally, in some substantial manner, failed to obey the law which prescribes his official duties.

3. The law does not permit a public officer to substitute his own judgment as to the best means of performing his official duties, if such are contrary to the plain provisions of the statute, although in so doing he may not have an evil or corrupt motive, and no loss may result to the public from such violation of law.

4. In determining whether or not there has been an infraction of duty on the part of a public official, within the purview of this section of the statute, the facts and circumstances must be considered; and where the amount of public funds available for deposit as required by ch. 256, Laws 1921, p. 557, known as the "Public Depository Law," is so small that no banking institution will give a bond for such deposit, or pay interest on the daily balances, the official having custody of such public funds cannot be held for such refusal.

5. Among other things, the purpose of C. S., sec. 1504, is to require the commissioners of a highway district, upon taking the oath of office, to proceed with reasonable diligence to organize and carry out the object for which the district was created. But where no funds come into their hands until long after the first meeting of the board, the failure to appoint a treasurer at this meeting is not such a violation of the statute as to warrant the removal of the commissioners from office and the infliction of the penalty prescribed by C. S sec. 8684.

6. Statutes define the duties of public officers in general terms, and must always be construed with regard to the ever-changing conditions in human affairs, which may not have been fully anticipated or provided for in such statutes. A public officer should not be removed from office under C. S sec. 8684, unless he has refused or neglected to perform an official duty pertaining thereto in some substantial respect, which under the existing conditions would lead all reasonable minds to conclude that the act complained of was an intentional violation of law. A reasonable effort to perform the duties pertaining to public office is all the law requires.

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

Action to oust defendant from the office of highway commissioner and for the statutory penalty. From judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions to dismiss.

Reversed and remanded, with directions. Costs awarded to appellant.

Peterson & Coffin and R. W. Katerndahl, for Appellants.

"The proceedings provided for under C. S., sec. 8684, are clearly restricted to cases where an officer is guilty of knowingly, wilfully, and corruptly charging and collecting illegal fees for services rendered or to be rendered in his office, or of knowingly, wilfully or corruptly refusing or neglecting to perform the official duties pertaining to his office." (Daugherty v. Nagel, 28 Idaho 302, 154 P. 375.)

F. A. McCall and C. A. Bandel, for Respondent.

The status of appellant's official delinquencies was fixed and complete at the time of the placing of the district's funds in the Bank of Roberts, on August 31, 1921, and that status could not be changed by the subsequent acts of said appellant or of any other persons. (16 C. J. 92 (sec. 61); McCoy v. State, 15 Ga. 205; State v. Fowler, 13 Idaho 317, 89 P. 757.)

It being established by competent and uncontradicted evidence that appellant had a clear conception of the provisions of the statutes which he violated, it must follow that he had knowledge that the facts existed which bring his official omissions within the provisions of the law and that they were therefore made "knowingly"; and having placed the district's funds in the bank without first requiring such bank to give a bond, or even attempting to do so, and having failed and neglected to fix a uniform rate of interest or to collect any interest, or to appoint a treasurer as by law required, or to make any bona fide attempt to perform any of these official duties, until long after the offenses were complete, it necessarily follows that such omissions were "wilful" and that the trial court did not err in so finding. (C. S., sec. 8074; Archbold v. Huntington, 34 Idaho 558, 201 P. 1041.)

The provisions of the statutes which appellant admits he violated, being clear, explicit and mandatory, and the appellant not being wrongly advised or in any way misled, and the evidence clearly establishing his complete understanding thereof, he cannot justify his failure to perform the official duties prescribed by such statutes upon the grounds of good faith and honest intention. (22 R. C. L. 570; Miller v. Smith, 7 Idaho 204, 213, 61 P. 824; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 P. 1103; Skeen v. Craig, 31 Utah 20, 86 P. 487; Walton v. Channel, 34 Idaho 533, 204 P. 661; Robinson v. Huffaker, 23 Idaho 173, 129 P. 334.)

WILLIAM A. LEE, J. Budge, C. J., and McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is one of three summary actions commenced by respondent under C. S., sec. 8684, to remove from office appellants, who are commissioners of the Camas-Monteview Highway District, in Jefferson county, and to recover the statutory penalty. The actions were consolidated for the purposes of trial, and a separate judgment was rendered against each commissioner, from which they severally appeal. By agreement, the testimony taken in the cause as above entitled is deemed to apply to all of the defendants, and judgment in the other cases shall abide the decision on this appeal.

The information charges appellant, as one of the commissioners of this highway district, with having wilfully, knowingly and intentionally failed, neglected and refused to perform an official duty pertaining to his office, in that: (1) he did not require the Bank of Roberts, a banking corporation, or the First National Bank of Roberts, with which it was subsequently consolidated, to deposit securities or give bond for the safekeeping of the funds of said highway district, as required by ch. 256, Laws 1921, p. 557, these banks being at the time depositories of public funds of this highway district, and as such receiving and holding, so it is alleged, large sums of money belonging to said district; (2) appellant, while acting with the other members of the board of commissioners, wilfully, knowingly and intentionally failed, neglected and refused to fix a uniform rate, or any rate, of interest to be paid by its depositories, the Bank of Roberts and the First National Bank of Roberts, on the sums of money deposited in said depositories by the highway district; (3) appellant, acting with the other commissioners, wilfully, knowingly and intentionally failed, neglected and refused, at the first meeting of said board of commissioners, to appoint or to assist in appointing a treasurer for said highway district, or to require any person or corporation to give bond or deposit any securities for the safekeeping of the funds belonging to this district to be handled by said treasurer.

A trial was had to the court, which resulted in a judgment removing appellant from office, and that the informant should recover $ 500, as provided by the statute. From this judgment this appeal is taken.

The specifications relate only to the alleged error of the court in finding that the board of highway commissioners wilfully, knowingly and intentionally failed, neglected and refused to obtain a depository bond from the banks in which they deposited the funds of the district, to fix a rate of interest to be paid on such deposits, or to appoint a treasurer at the first meeting.

C. S., 8684, which provides for the removal of an officer "who has refused or neglected to perform the official duties pertaining to his office," is penal in its nature, and should be strictly construed. By this is meant that the court should not enter judgment of removal unless it is plain that the officer has neglected or refused to perform official duties which are clearly required of him by law. (Walton v. Channel, 34 Idaho 532, 204 P. 661.)

It appears that this highway district came into existence in April, 1921, the organization meeting being held on the 28th of that month. At that meeting the commissioners, after due discussion, adopted a resolution making the Bank of Roberts the depository for the district, on condition that a satisfactory agreement could be made with this bank. The commissioners all testify, and in this they...