State v. Anderson

• Decision Date: 08 November 1924
• Docket Number: 25,707
• Citation: 230 P. 315,117 Kan. 117
• Parties: THE STATE OF KANSAS, ex rel. CHARLES B. GRIFFITH, Attorney-geneneral, Plaintiff, v. W. E. ANDERSON, Clerk of the District Court, Shawnee County, Defendant
• Court: Kansas Supreme Court

230 P. 315

117 Kan. 117

THE STATE OF KANSAS, ex rel. CHARLES B. GRIFFITH, Attorney-geneneral, Plaintiff, v. W. E. ANDERSON, Clerk of the District Court, Shawnee County, Defendant

No. 25,707

Supreme Court of Kansas

November 8, 1924

Decided July, 1924

Original proceedings in quo warranto.

Judgment rendered.

SYLLABUS

SYLLABUS BY THE COURT.

1. OUSTER--Clerk of District Court--Findings of Commissioner Appointed by This Court Are Advisory Only--Subject to Reexamination by the Court. The findings of fact made by a commissioner appointed by this court in an original proceeding are advisory only, although entitled to especial consideration where the effect of conflicting testimony is to be passed on; they do not require to be formally approved or set aside as a basis for a judgment. His conclusions of law are always open to reexamination by the court, and in general the court will render such judgment as the facts established by the evidence and findings warrant.

2. SAME--District Clerk Who Receives and Keeps for His Own Benefit Interest on Money in His Official Custody Deposited in Bank Violates the Statute. A clerk of the district court who receives and keeps for his own benefit interest on money in his official custody deposited by him in a bank thereby violates the statute reading:

"That no officer, state or county, or deputy, or clerk of the state officers, or staff officers of the governor, shall retain, under color of his office, any fee, compensation or reward for the performance or doing any service or thing appertaining to the duties of said office, other than is expressly allowed by law." (R. S. 21-1607.)

3. SAME--The Offense if Proven is a Misdemeanor, Involving Moral Turpitude. The offense defined in the foregoing paragraph, which is elsewhere made a misdemeanor, involves moral turpitude within the meaning of that phrase as used in the statute providing for the ouster of an officer who violates a penal statute involving moral turpitude.

4. SAME--Delay in Reporting Money Collected Within Time Fixed by Statute. The effect of the delay of a clerk of the district court to report money collected by him within the time fixed by statute is considered but not decided.

Charles B. Griffith, attorney-general, and William A. Smith, assistant attorney-general, for the plaintiff; Frank Doster, and J. E. Addington, both of Topeka, of counsel.

Eugene S. Quinton, and W. E. Atchison, both of Topeka, for the defendant.

Mason J. Harvey, J. dissenting.

OPINION

MASON, J.:

This action is brought by the state, on the relation of the attorney-general, against W. E. Anderson, the clerk of the district court of Shawnee county, seeking to have him ousted from that office for willful misconduct. Mr. Gilbert H. Frith was appointed as commissioner to take the evidence and make findings of fact and law. On June 16, 1924, the commissioner filed his report, finding the facts in detail, his conclusion being against the removal of the defendant. On July 1 the case was set for hearing at the October session, and was then submitted to the court.

The charge which the commissioner reports as giving him the greatest concern relates to the defendant's receiving from the bank in which the money in his official custody was deposited interest at the rate of two per cent per annum on daily balances, which he kept for his own use. Of this matter the commissioner says:

"The funds which came into his hands as clerk of the district court did not, of course, belong to him. They were paid in as fines in criminal cases, deposits for costs made by plaintiffs, judgments, and in other ways, and he was merely the custodian of such funds; and, as such, it seems clear that the accumulated interest would belong to the owners of the funds and not to the defendant. His act in using this fund for his own gain cannot be justified from either a moral or legal standpoint, and yet I do not believe that the circumstances justify his removal from office on that account, because the willful doing of any wrong was not shown. On the contrary, it appears that the defendant was merely continuing a practice which had been in vogue for several years prior to his taking office."

1. In the brief for the defendant it is said:

"Unless exceptions are taken to the findings of fact, the court will not only presume, but is compelled by every rule of procedure to hold that the evidence fully sustained the findings of fact."

The findings of a commissioner acting under an order directing him to find upon the issues of fact and law have not the full force of those made by a jury or referee. They are merely advisory and do not require to be formally adopted or set aside as a basis for a judgment. So far as pure questions of fact are concerned, weight is given to the consideration that the commissioner is in a better position to pass upon conflicting testimony than the court. (Hunt v. Gibson, 99 Kan. 371, 375, 161 P. 666; The State, ex rel., v. Foley, 107 Kan. 608, 613, 193 P. 361; The State, ex rel., v. Deichler, 108 Kan. 145, 146, 194 P. 322.) In order that a commissioner's findings of fact may be challenged it is not necessary that an exception be taken or objection made by any prescribed method. Here the plaintiff does not in terms attack any finding of evidential or ultimate fact, but asserts that the finding which exculpates the defendant is a conclusion of law which is subject to reexamination by the court, and that upon the facts found a judgment of ouster should be rendered. The plaintiff contends that the facts found show willful misconduct as a matter of law, and that the statute makes the receiving and retention of the interest a misdemeanor involving turpitude, which under the ouster statute constitutes a ground for forfeiture of office in and of itself. If either of these contentions is correct the judgment should be against the defendant.

2. The statutes invoked by the plaintiff in support of the second contention read:

" That no officer, state or county, or deputy, or clerk of the state officers, or staff officers of the governor, shall retain, under color of his office, any fee, compensation or reward for the performance or doing any service or thing appertaining to the duties of said office, other than is expressly allowed by law." (R. S. 21-1607.)

"Any state or city treasurer or any deputy or clerk of any such treasurer, or any county officer or any deputy or clerk of any such officer, who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in the sum not less than fifty dollars nor more than five hundred dollars." (R. S. 21-1609.)

" Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, who shall . . . commit any act constituting a violation of any penal statute involving moral turpitude shall forfeit his office and shall be ousted from such office in the manner hereinafter provided." (R. S. 60-1609.)

Two questions of unmixed law are involved: Is the collection and retention by a clerk of a district court of interest on funds in his official custody a violation of section 21-1607? and if so, is the misdemeanor there defined one involving turpitude? More concretely, the first question is: Does the money received by the clerk as interest constitute a "fee, compensation or reward for the performance or doing any service or thing appertaining to the duties of said office"? The language quoted appears to have been purposely selected with exceptional care to make it cover a wide field. The prohibition is directed not merely against the acceptance of a fee as compensation for performing...