State ex rel. Payne v. Dist. Court of Fifth Judicial Dist. In

• Decision Date: 07 March 1917
• Docket Number: No. 3921.,3921.
• Citation: 53 Mont. 350
• Parties: STATE EX REL. PAYNE v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY ET AL.
• Court: Montana Supreme Court

53 Mont. 350

STATE EX REL. PAYNE

v.DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY ET AL.

No. 3921.

Supreme Court of Montana.

March 7, 1917.

Proceedings for mandamus by the State of Montana, on the relation of W. W. Payne, against the District Court of the Fifth Judicial District in and for Madison County and Jos. C. Smith, Judge. Writ issued.

James T. Shea, of Twin Bridges, for relator.

M. M. Duncan, of Virginia City, for respondents.

HOLLOWAY, J.

In June, 1916, an accusation in writing verified by W. W. Payne was presented to the district court of the Fifth judicial district charging Bert G. Paige, a county commissioner of Madison county, with official misconduct. The accusation is in three counts. By the first it was intended to charge the collection of illegal fees, and by the second and third that Paige was personally and financially interested in certain property which he caused to be purchased by the county. A citation was issued, and the accused appeared and denied the material allegations of the accusation. When the proceeding was brought to trial, the court declined to try in a summary manner the issues framed upon the second or third count, and, when it was sought to prove the allegations of the first count, an objection to the introduction of any evidence was sustained and the proceeding dismissed. The accusing party then secured from this court an alternative writ of mandate directed to the lower court requiring it to proceed with the hearing or show cause why it refused to do so. Upon the return a motion to quash was interposed and the matter submitted.

The proceeding was instituted under section 9006, Revised Codes. That section does not comprehend such official misconduct as is charged in either the second or third count of the accusation, and for this reason the court correctly refused to try the issues presented upon either of those two counts.

The first count charges that the accused collected illegal fees from Madison county for alleged services rendered by him in his office as county commissioner, in that he presented to and collected from the county his bill for $249 for items among which are a large number every one of which it is alleged is illegal. Copied in the accusation is a list of these alleged illegal items. A part of that list, sufficient to illustrate the whole, is as follows:

There is a separate charge relating to an item of $12 which it is alleged was collected by the accused as and for expenses incurred by him in connection with his attendance upon a meeting of the board.

1. It is contended that this first count does not state facts sufficient to constitute an offense cognizable under section 9006:

(a) Because the items of expense are not fees within the meaning of the word as used in that section. The term “fees,” used in the Codes, is somewhat elastic. Section 3172, Revised Codes, provides that:

“The county surveyor is entitled to receive and collect for his own use the following fees: * * * Expenses of chainman and markers,” etc.

Section 3173: “The coroner is entitled to receive and collect for his own use the following fees: * * * For each mile actually traveled in the performance of any duty, ten cents.”

We think the term “fees,” used in section 9006, is sufficiently broad to comprehend both per diem and expenses. Burrows v. Balfour, 39 Or. 488, 65 Pac. 1062; 19 Cyc. 462.

(b) Because it is not alleged that the services for which the charges were made were not rendered, or, if rendered, that the fees received are not authorized by law. Section 9006 is directed against the incumbent of an office who makes use of his official position as a medium for securing fees to which he is not entitled. Smith v. Ling, 68 Cal. 324, 9 Pac. 171. The gist of the offense condemned is the collection of illegal fees by virtue of official position. To constitute the offense, therefore, it must be made to appear: (a) That the accused is the incumbent of a public office; (b) that, acting by virtue of his office, he collected certain fees; and (c) that the fees collected were illegal, that is, not authorized by law under the circumstances of the particular case. If the fees were collected for services never rendered, or never intended to be rendered, they would be illegal. Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502. If they were collected for services rendered but for which no compensation is allowed, they would be illegal. State ex rel. Rowe v. District Court, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913B, 396. If the accused collected for services rendered more than the law allows for such services, he collected illegal fees within the meaning of section 9006. Leggatt v. Prideaux, 16 Mont. 205, 40 Pac. 377, 50 Am. St. Rep. 498.

We agree with counsel for the accused that it does not aid the accusation to say that every item in the list above is illegal. These fees are legal or illegal, depending upon whether they are, or are not, authorized by law. A county commissioner can lawfully collect for services performed in virtue of his office, only such fees or other compensation as the law specifically authorizes. The law authorizes per diem and mileage for attending the meetings of the board (section 2893, Rev. Codes), and per diem and expenses while inspecting contract construction work on a highway or bridge under a proper order of the board (Laws 1915, p. 319).

The statute does not prescribe rules of pleading. It does contemplate that the accusation may be prepared by a layman. In any event, it is sufficient if it clearly and distinctly sets forth the facts constituting the offense, in ordinary and concise language and in such manner that a person of common understanding may know what was intended. Woods v. Varnum, 85 Cal. 639, 24 Pac. 843.

If the items for which the accused charged these fees show on the face of them that they are not authorized by law, there is no necessity to characterize them or to attempt to show wherein they are illegal. They show for themselves. We think the accusation, in the first count, is sufficient to charge the collection of illegal fees. In effect, it alleges that the accused, acting in his official capacity as county commissioner of Madison county, spent one day seeing about a right of way for which he charged and collected from the county $8 and $5 additional for expenses, etc. This item particularly is not comprehended within any provisions of the law authorizing fees or other compensation to a member of the board of county commissioners for services rendered in his office, and is therefore prima facie illegal. There are others of the same general character, and still others which are not prima facie illegal but may be illegal, or not, depending upon circumstances which are not...