Skeen v. Craig

• Decision Date: 02 August 1906
• Docket Number: 1753
• Citation: 31 Utah 20,86 P. 487
• Court: Utah Supreme Court
• Parties: SKEEN v. CRAIG

86 P. 487

31 Utah 20

SKEEN v. CRAIG

No. 1753

Supreme Court of Utah

August 2, 1906

APPEAL from District Court, Weber County; J. A. Howell, Judge.

Action by J. D. Skeen against William Craig. From a judgment for defendant, plaintiff appeals.

REVERSED AND REMANDED.

J. N Kimball, Geo. Halverson and J. D. Skeen for appellant.

APPELLANT'S POINTS.

The court erred in sustaining the demurrer of the defendant to the fifth paragraph of the amended complaint. There is no distinction between a city councilman refusing and neglecting to investigate and oppose the allowance of improper claims against a city and a sheriff refusing and neglecting to serve a summons. The intent of the legislature was evidently to provide a summary means of removing an unfaithful public servant at the instance of any individual. In Woods v Varnum, 85 Cal. 639, 24 P. 843, it was held under a very similar statute and probably the original of our statute that a tax collector who had erroneously collected taxes not due and who refused and neglected to repay them upon discovery of the error was subject to removal for neglecting and refusing to perform his official duties. (Miller v. Smith [Ida.], 61 P. 824.) Ignorance of the law does not excuse the defendant. The question of good faith cannot be urged. He was not laboring under a misapprehension of the facts in the case. In People v. Monk, 8 Utah 35, the defendant was indicted under section 2796, Comp. Laws 1888, for a misdemeanor in demanding and receiving illegal fees for recording a mining location. The defendant believed that he had a right to charge three dollars for his services as fixed by the custom of miners in the district while the territorial law fixed the fee at seventy-five cents. (2 Bish., Crim. Law, sec. 399; Reynolds v. U.S., 98 U.S. 167; Davis v. Com., 13 Bush 318; U.S. v. Carr, 3 Sawy. 479; State v. Goodenow, 65 Me. 30; (Com. v. Mash), 7 Metc. [Mass.] 472; Lincoln v. Shaw, 17 Mass. 410; People v. Calhoun, 3 Wend. 420; Leggett v. Prideaux, 16 Mont. 205, 40 P. 377, 50 Am. St. Rep. 498. Cobbey v. Burks, 11 Neb. 117, 38 Am. Rep. 364; State v. Welch, 73 Mo. 284, 39 Am. Rep. 515; Rankin v. Jarman [Ida.], 36 P. 502, 39 P. 1111; Miller v. Smith, 61 P. 826; Plyler v. Allison [Tenn.], 82 S.W. 475; Wilson v. Barratt, 24 Pa.Super. Ct., 68, cited in 5 Current Law, 1407; Levar v. State [Ga.], 29 S.E. 467; People v. O'Brien, 96 Cal. 171.) Repeated violations of the plain provisions of the law to the pecuniary benefit of the officer is proof of bad faith. (Rankin v. Jarman, 39 P. 1111; Miller v. Smith, 61 P. 826.)

Maginnis & Corn for respondents.

RESPONDENT'S POINTS.

This court has no jurisdiction to hear this appeal, and therefore should dismiss the same, for the reason that this is a criminal action and should be brought in the name of the "State of Utah" and not in the name of a private individual. Section 18, article 8 of the Constitution of Utah provides that all prosecutions shall be conducted in the name and authority of the State of Utah. (Thurston v. Clark, 107 Cal. 285, 40 P. 435; Kilburn v. Law, 111 Cal. 237, 43 P. 615; Wheeler v. Donnell, 110 Cal. 655, 43 P. 1; In re Curtis, 108 Cal. 661, 41 P. 793; U.S. v. Boyd, 116 U.S. 616; Lee v. U.S., 150 U.S. 476.)

The word fees as used in section 4580 of the Revised Statutes of Utah does not include extra salary voted by the council in open session to themselves. (Musser v. Good, 11 Serg. & R. 247; Tillman v. Wood, 58 Ala. 578; Landis v. Lincoln County, 50 P. 530.)

It would indeed be a very harsh and unjust rule of evidence which would not permit a common councilman to explain his vote concerning any question upon which he has acted when he is called into a court of justice and accused of a crime. As a rule intent is always a necessary ingredient in connection with the act to constitute a crime. There are cases where the law infers the intent from the act, but this is not one of those cases. (State v. Blue, 17 Utah 179; Queen v. Tolson, 23 Q. B. Div. 168; Bradley v. People [Colo. Sup.], 9 P. 783; People v. Wadsworth, 63 Mich. 500; Com. v. Este, 140 Mass. 279; Phelps v. People, 55 Ill. 334; People v. Hurst [Mich.], 28 N.W. 836; People v. Carillo, 54 Cal. 63; Triplett v. Munter, 50 Cal. 644; People v. White, 34 Cal. 183; State v. Bierce, 27 Conn. 319; Ponting v. Isaman, 65 P. 434; Haynes v. Hall, 37 Vt. 20; State v. Van Kuran, 25 Utah 8.)

McCARTY, J. BARTCH, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

This action was instituted in the district court of Weber county, Utah by J. D. Skeen, as a taxpayer and a citizen of Ogden City, against William Craig, a member of the city council of Ogden City, to remove the defendant from office, under section 4580, Revised Statutes Utah 1898. The amended complaint alleges that at the time defendant became a member of the city council there was in force an ordinance of Ogden City, entitled "An ordinance fixing the salaries of mayor and other officers of Ogden City," approved October 28, 1899; that said ordinance fixed the compensation of the councilmen of said city at $ 240 per year, payable in equal monthly installments on the last day of each and every month. The complaint also contains a detailed statement of the facts and circumstances under which it is claimed defendant on different occasions charged and collected illegal fees for services rendered by him as a city councilman. A trial by a jury was had, which resulted in a verdict in favor of the defendant. To reverse the judgment entered on the verdict, plaintiff has brought the case, on appeal, to this court.

Respondent challenges the jurisdiction of this court to hear the appeal on the ground that it is a criminal action and should be brought in the name of the State of Utah and not in the name of a private individual. In support of their contention that the appeal should be dismissed for the want of jurisdiction, counsel for respondent cite and rely on section 18, art. 8 of the Constitution of Utah which provides that "the style of all process, shall be 'The State of Utah' and all prosecutions shall be conducted in the name and by the authority of the same." The question as to whether proceedings of this kind to remove from office a public official are civil or criminal has been before the courts of other states, and, while the decisions are not harmonious, yet the great weight of authority, and as we think the better reasoned cases hold that such actions are civil. (Rankin v. Jauman, 4 Idaho 53, 36 P. 502; Id., 4 Idaho 394, 39 P. 1111; Ponting v. Isaman, 7 Idaho 283, 62 P. 680; Id., 7 Idaho 581, 65 P. 435; Fuller v. Ellis, Atty. Gen., 98 Mich. 96, 57 N.W. 33; Clay v. Stuart, 74 Mich. 411, 41 N.W. 1091, 16 Am. St. Rep. 644; Atty. Gen. v. Jochim, 99 Mich. 358, 58 N.W. 611, 23 L.R.A. 699, 41 Am. St. Rep. 606; Moore v. Strickling, 46 W.Va. 515, 33 S.E. 274, 50 L.R.A. 279.) We do not think, however, it is necessary to look beyond the provisions of the Constitution and statutes of our own state to determine the class of actions (civil or criminal) to which the one under consideration belongs.

Section 18, art. 6, Const. Utah provides:

"All impeachments shall be tried by the Senate. . .

Section 19:

"The governor and other state and judicial officers, except justices of the peace, shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office; but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust or profit in the state. The party whether convicted or acquitted, shall, nevertheless, be liable to prosecution, trial and punishment according to law.

Section 21:

"All officers not liable to impeachment shall be removed for any of the offenses specified in this article, in such manner as may be provided by law."

Now, section 21 confers upon the Legislature power to provide by law the procedure by which the officials not liable to impeachment may be removed from office, and, in pursuance of the power thus granted, the Legislature, among other things, provided (section 4580, Rev. St. 1898) that

"When an accusation in writing, verified by the oath of any person, shall be presented to a district court, alleging that any officer within the jurisdiction of the court shall have been guilty of charging and collecting illegal fees for services rendered, or to be rendered in his office, . . . the court must cite the party charged to appear before the court at a time not more than five days from the time the accusation was presented; and on that day, or some subsequent day not more than twenty days from that on which the accusation was presented, must proceed to impanel a jury and hear the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it shall appear by the verdict of the jury, that the charge is sustained, the court must enter a judgment that the party accused be deprived of his office, and for such costs as are allowed in civil cases."

It will be observed that neither fine nor imprisonment can be imposed. The only judgment that can be entered against the accused is, that he be deprived of his office, and for costs. It therefore necessarily follows that proceedings under section 4580, Rev. St. 1898, can only be brought against a person who, at the time such proceedings are instituted, is holding the office from which it is sought to have him removed. (Smith v. Ling, 68 Cal. 324, 9 P. 171; Woods v. Varnum, 85 Cal. 639, 24 P. 843.)

We think it reasonably appears from the provisions of the Constitution and Revised Statutes referred to, that their object is not to punish delinquent and unfaithful public officers as for crimes, but to protect the public...