State v. Borstad
| Decision Date | 30 April 1914 |
| Citation | 147 N.W. 380,27 N.D. 533 |
| Court | North Dakota Supreme Court |
Appeal from the district court of Williams County, Leighton, J.
Action to remove from office under § 9646, Rev. Codes 1905. Judgment for plaintiff. Defendant appeals.
Affirmed.
Palmer Craven & Burns, and D. C. Greenlief, for appellant.
There was an improper joinder of several causes of action, not contemplated by the statute. Rev. Codes 1905, § 9646.
The state had no right to call and cross-examine the defendant as an adverse party, as is permitted in a civil action. The action is penal in its nature. Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524; Lees v. United States, 150 U.S. 476, 37 L.Ed. 1150 14 S.Ct. 163; Thurston v. Clark, 107 Cal. 285, 40 P 435; Triplett v. Munter, 50 Cal. 644; Minnehaha County v. Thorne, 6 S.D. 449, 61 N.W. 688; 17 Cyc. 233.
The charges made on outside trips were not "charges and collections of illegal fees for services rendered in his office," as the court erroneously charged the jury. State v. Bauer, 1 N.D. 273, 47 N.W. 378; Law v. Smith, 34 Utah 394, 98 P. 300; Rev. Codes 1905, § 2613.
The state in such an action must establish its case by evidence amounting to more than a fair preponderance. 2 Enc. Ev. 785, 787.
In such cases the burden of proof does not shift to defendant at any stage of the trial. 2 Enc. Ev. 779, 787.
U. L. Burdick, State's Attorney, Williams County, for respondent (H. W. Braatelien, of counsel).
This defendant was not tried upon or for any wrongs which may have been committed by any other of the members of the board. Rev. Codes 1905, §§ 7012, 9536; State ex rel. Smith v. Leon, 66 Wis. 199, 28 N.W. 140.
A demurrer does not lie in any such proceeding. Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143.
In such case defendant may be called and cross-examined as an adverse party, under the statute. Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524 (Distinguished).
This is in no sense a criminal action, and the cross-examination of defendant as an adverse party was proper. N.D. Code § 9646; Woods v. Varnum, 85 Cal. 639, 24 P. 843; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111; Hays v. Young, 6 Idaho 654, 59 P. 1113; Ponting v. Isaman, 7 Idaho 283, 62 P. 680; Hays v. Simmons, 6 Idaho 651, 59 P. 182; Fuller v. Ellis, 98 Mich. 96, 57 N.W. 33.
The right to cross-examine in cases where permitted by statute is for the benefit of the public. Skeen v. Craig, 31 Utah 20, 86 P. 487; Skeen v. Chambers, 31 Utah 36, 86 P. 492; Ex parte Wall, 107 U.S. 265, 27 L.Ed. 552, 2 S.Ct. 569; Royall v. Thomas, 28 Gratt. 130, 26 Am. Rep. 335; Ponting v. Isaman, 7 Idaho 283, 62 P. 680.
A county commissioner cannot make such charges, and then claim they were not incurred while acting as such official. Skagit County v. American Bonding Co. 59 Wash. 1, 109 P. 199; State v. Bauer, 1 N.D. 273, 47 N.W. 378.
The duties of county commissioners are fixed and defined by statute, and it is not the province of the court to entertain a change. State ex rel. Walklin v. Shanks, 25 S.D. 55, 125 N.W. 122; Green v. Okanogon County, 60 Wash. 309, 111 P. 226, 114 P. 457; Merrick County v. Batty, 10 Neb. 176, 4 N.W. 959; Erskine v. Steele County, 4 N.D. 345, 28 L. R. A. 645, 60 N.W. 1050; Wheeler v. Wayne County, 132 Ill. 599, 24 N.E. 625.
Statement
This is an accusation under § 9646 of the Revised Codes of 1905, in which the appellant and defendant, C. O. Borstad, is charged with collecting illegal fees for services rendered in his office as a member of the board of county commissioners of Williams county, North Dakota, and his removal from such office is sought for these reasons. A demurrer was interposed to this accusation, which was overruled, as well as an objection to the introduction of any evidence thereunder. A jury trial was then had, and a verdict rendered, finding appellant guilty as charged in the accusation. This appeal is taken from an order denying a motion for a new trial.
BRUCE, J. (after stating the facts as above). The first point raised by appellant is that the court erred in overruling the demurrer and the objection to the introduction of any evidence under the accusation. The accusation accused the appellant and four other commissioners with charging and collecting illegal fees. Defendant and appellant contends that several separate causes of action against several commissioners were united, and that no such joinder is authorized and contemplated by § 9646, Rev. Codes 1905, under which the proceedings were brought.
The proceedings provided for in § 9646, Rev. Codes 1905, are neither civil nor criminal, but of a character peculiar to themselves. The remedy is one The act, indeed, establishes its own due process of law. Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143; Rankin v. Jauman, 4 Idaho 394, 39 P. 1111; Woods v. Varnum, 85 Cal. 639, 24 P. 843; Skeen v. Craig, 31 Utah 20, 86 P. 487; Ponting v. Isaman, 7 Idaho 283, 62 P. 680; Fuller v. Ellis, 98 Mich. 96, 57 N.W. 33. The object of the statute is to protect the public from corrupt officials, and not to punish the offenders. Ponting v. Isaman, 7 Idaho 283, 62 P. 680. The right of the legislature to act in the matter arises from the exigencies of government, and is to be found in its inherent power to act upon all subjects of legislation, subject only to constitutional restrictions. There are to be found in the Constitution of North Dakota no provisions which forbid a special procedure in such matters.
In the new process of law that is prescribed, there is no insistence upon the strict rules of practice which prevail in either civil or criminal actions. The intention of the legislature seems to have been that the remedy should be summary, and that all technicalities should be waived. It seems, indeed, to have contemplated a speedy hearing, in order that the public might be protected from incompetent or dishonest officials, and that only those rights of established procedure should be recognized which are fundamental in their nature and essential to the administration of justice. Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143. No demurrer to the accusation seems to have been contemplated, as its interposition would necessitate delay. Ibid.
Nothing is said in the statute or in the case of Myrick v. McCabe, supra, in regard to an objection to the introduction of any evidence under the accusation. We believe, however, that the same reasoning and principles apply, and that in this matter, as in the case of the demurrer, we must bear in mind the fact that the affording of a summary and speedy relief was a controlling part of the legislative intention. For these reasons we believe and hold that an objection to the introduction of any evidence under the accusation should be allowed and sustained where it affects the real merits of the controversy and the real and fundamental rights of the defendants. It should not be sustained where the only defects complained of are an improper joinder of parties defendant and of issues involving different parties, and those defects have, as in the case at bar, been cured and eliminated from the proceedings by the granting of a motion for a separate trial. It is claimed, it is true, that the mere making of such a request has a tendency to prejudice the movant by arousing the hostility of the other defendants. It is difficult, however, for us to see how the separation of the issues by a motion for a separate trial would evoke the enmity of the other wrongdoers, any more than a separation of such issues by a demurrer or by an objection to the admission of evidence under the complaint, based upon the ground of an improper joinder of parties. In the case at bar, also, it is by no means unworthy of consideration that the other defendants were not called as witnesses by either side.
Nor do we believe that the trial court erred in permitting the examination of the defendant as an adverse party. The examination was not held prior to the trial, but upon it. It was not a preliminary examination of the adverse party, but an examination of him as a defendant during the trial. It was a denial merely of the right to assert the old common-law privilege of refusing to testify in an action against one's self during the pendency of that trial. Sec. 9646 of the Revised Codes of 1905 provides that the trial shall be conducted in the same manner as a trial by jury in a civil action. There is no question that in a civil action the defendant can now be compelled to testify. Sec 7252 provides for the examination of the adverse party upon the trial, and is entirely separate and distinct from § 9646, which provides for an examination before trial. Whether such examination can be had under the proceedings authorized by § 9646 is not necessary for us to determine. It is sufficient to say that the examination can be had under the proceedings authorized by § 7252, as amended by chap. 4, Laws of 1907, provided that in such examination the constitutional right of the defendant to refuse to testify as to matters which may tend to render him liable to prosecution in a criminal action is recognized and preserved. This privilege, however, is a privilege which must be specifically asserted and relied upon, and we find no such assertion in the record...
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