Smith v. Ellis

• Decision Date: 20 June 1900
• Parties: SMITH v. ELLIS
• Court: Idaho Supreme Court

61 P. 695

7 Idaho 196

SMITH v. ELLIS

Supreme Court of Idaho

June 20, 1900

INFORMATION-REMOVAL OF PUBLIC OFFICER.-An information or accusation by which an action is commenced to remove a public officer from office under the provisions of chapter 2, title 2, of the Penal Code, should state the specific acts of commission or omission, for which such removal is sought, with clearness and certainty.

ILLEGAL FEES-APPEAL.-A judgment removing a constable from office and assessing the statutory penalty against him in favor of the informant, upon the ground that such constable presented a claim against his county for mileage, for conveying certain prisoners to the county jail, when such prisoners were conveyed to the county jail by the sheriff, and not by such constable, and such claim was allowed in favor of such constable, who received a warrant therefor, affirmed upon appeal.

SAME-PUBLIC POLICY.-Neither the law nor good morals will permit a sheriff to throw off his cloak of office and become the mere private agent of a constable for the purpose of enabling the latter to collect fees for a public service never performed by him and the attempt to do so, being contrary to public policy and subversive of good government, cannot be tolerated.

HARMLESS ERROR.-A judgment will not be reversed on the ground of error, which does not affect the substantial rights of the parties especially when such judgment is sustained by facts alleged and admitted by the pleadings of the respective parties.

TITLE OF ACTION.-An action to remove a public officer under the provisions of chapter 2 of title 2 of the Penal Code is a penal action, and is properly commenced in the name of the state as plaintiff.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Judgment affirmed. Costs awarded to respondent.

Dietrich Chalmers & Stevens, for Appellant.

The paramount object of such statutes as section 7459 of the Revised Statutes of Idaho is the removal from office of incumbents who knowingly, willfully and corruptly use their official position as a medium for extortion and wrong. (Smith v. Ling, 68 Cal. 324, 9 P. 171; People v. Nichols, 79 (N. Y.) 588; Gorman v. County Commrs., 1 Idaho 559; Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 172; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111, 1113.) So far as shown by the record, the acts complained of operated for the benefit and not to the injury of the public. (Osborn v. Ravenscraft, 5 Idaho 612, 51 P. 618.) The findings of fact do not cover all the issues and are therefore insufficient to support the decision of the court or the judgment herein. (Wilson v. Wilson, 6 Idaho 597, 57 P. 708.)

S. H. Hays, Attorney General, and N. H. Clark, County Attorney, for Respondent, file no brief.

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

OPINION

QUARLES, J.

This action was commenced by information or accusation verified by one J. Ed. Smith, accusing the appellant, W. G. Ellis, with presenting and collecting, as constable of Idaho Falls precinct, Bingham county, claims for illegal fees against said county. There are a number of general allegations in the information to the effect that the appellant, as such constable, had at different times knowingly, willfully, and corruptly charged illegal fees. But as this action, which was commenced to remove appellant from office under chapter 2, title 2, of the Penal Code, is strictly penal, such general allegations are not sufficient. It is necessary to charge with certainty the specific acts of commission or omission for which the removal is sought. The said accusation is in words and figures as follows, to wit:

"J. Ed. Smith, being duly sworn, on his oath says: That the defendant, W. G. Ellis, has been since the tenth day of January, 1899, the constable of Idaho Falls precinct, Bingham county, Idaho duly elected, qualified, and acting as such. That the defendant has at various times since the tenth day of January, 1899, acting as such constable, knowingly, willfully, and corruptly charged illegal fees for services rendered, and pretended to have been rendered, while so acting; and that on the eleventh day of October, 1899, the defendant presented to the board of county commissioners of said Bingham county for allowance his bill for services rendered from and including the time between the twelfth day of July, 1899, and the third day of October, 1899, to the amount of $ 648.95, which said amount was by said board allowed for the sum of $ 449.50, and was by said defendant thereupon collected and appropriated to his own use. This affiant is informed and believes, and thereupon alleges, a large number of the items contained in said bill so rendered, to wit, taking prisoners to the county jail at Blackfoot, were never rendered, nor were said services performed, by defendant, but were performed by D. H. Clyne, sheriff of Bingham county. That one J. B. Hamilton and one J. Doe, county prisoners in said county of Bingham, were taken to said jail at said Blackfoot by said sheriff, but were mentioned in said items as taken to said place by defendant, and said services were charged for by defendant. That said bill was allowed by said board and was collected and appropriated by said Ellis for his use and benefit. That this information is made under the provisions of section 7459 of the Revised Statutes of 1887.

"J. ED. SMITH.

"Subscribed and sworn to before me this 8th day of November, 1899.

"GEORGE L. WALL,

"Notary Public."

No demurrer was filed to this information, but appellant answered saying:

"Comes now the defendant in the above-entitled proceeding and for answer to the complaint, information or accusation herein admits, denies and alleges as follows:

"1. Denies that at various times since the 10th day of January, 1899, or at any other time or ever at all, acting as constable of said precinct or otherwise or at all knowingly or willfully or corruptly, or otherwise than as hereinafter stated, charged any illegal fees whatever for services rendered or pretended to have been rendered.

"2. Denies that he charged or collected or received the sum of $ 449.50, or any other sum whatever, in money or cash, but alleges the fact to be that he received for said sum a county warrant duly ordered, issued and delivered by the clerk of said board of county commissioners under and by authority of an order of said board duly made and entered allowing his bill for said sum, which said warrant has not been paid by said county or the treasurer thereof.

"3. And further answering said so-called accusation the defendant denies that a large number of the items contained in said bill for taking prisoners to the county jail at Blackfoot were never rendered, and denies that said services were not performed by said defendant, and denies said services were performed by D. H. Clyne, as sheriff of Bingham county aforesaid, or otherwise than personally as a private agent of the defendant.

"4. Denies that J. B. Hamilton and J. Doe, as county prisoners or otherwise, as alleged, or otherwise at all, were taken to the county jail of Bingham county, Idaho at Blackfoot therein, by the sheriff of said county as sheriff, or otherwise or at all except as a private agent of this defendant. Denies that said bill was collected in money or cash or appropriated by said defendant for his own use or benefit.

"And further answering said accusation the defendant alleges the fact to be that as constable of Idaho Falls precinct, in said county and state, and as town marshal of Idaho Falls aforesaid, it devolves upon said defendant and has devolved upon him since he became the incumbent of said office, to arrest and take into custody a large number of persons charged with crimes and violations of the statutes of Idaho and the ordinances, of said town of Idaho Falls...