State v. Hastings

Decision Date05 June 1893
PartiesSTATE v. HASTINGS, ATTORNEY GENERAL, ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. By the provisions of section 14, art. 3, Const. 1875, the supreme court did not succeed to any of the political functions of the senate as a court of impeachment under the prior constitution. The provision for the trial of impeachments before this court was intended to insure a strictly judicial investigation in such cases according to judicial methods.

2. Where, in an impeachment proceeding, the act of official delinquency consists in the violation of some positive provision of the constitution or statute, which is denounced as a crime or misdemeanor, or where it is a mere neglect of duty, willfully done, with a corrupt intention, or where the negligence is so gross, and the disregard of duty so flagrant, as to warrant the inference that it was willful and corrupt, it is a misdemeanor in office, within the meaning of section 5, art. 5, of the constitution.

3. But where such act results from a mere error of judgment or omission of duty, without the element of fraud, or where the alleged negligence is attributable to a misconception of duty, rather than a willful disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the state. Maxwell, C. J., dissenting.

4. Impeachment is, with respect to the production of evidence and quantum of proof required to warrant a conviction, essentially a criminal prosecution; hence the guilt of the accused must be established beyond a reasonable doubt.

5. The functions of the board of public lands and buildings in passing upon claims against the state, and in the selection of subordinate officers and agents, authorized by law, are in their nature quasi judicial. Brown v. Otoe Co., 6 Neb. 115. Maxwell, C. J., dissenting.

6. An officer is not liable for a judicial act except where he acts willfully, maliciously, or corruptly. This is a rule of great antiquity, and rests upon the soundest public policy, and in its application is not limited to judges, but extends to all officers and boards charged with the decision of questions quasi judicial in character.

7. The legislature of 1891 appropriated $40,000 for the building of a cell house at the penitentiary by days' work. The board of public lands and buildings, having said building in charge, selected for superintendent of construction one D., known to be the agent and manager of M., the lessee of the prison labor, with the understanding that he would have to contract with M., his principal, in behalf of the state, for the necessary labor, and fix the price to be paid therefor. It does not appear that the labor could have been procured for less than the rate allowed by D., to wit, one dollar per day, and is admitted to have been worth more than that amount. Held, that the action of the board in selecting D. as the representative of the state, while highly censurable, as unbusinesslike, and wanting in that intelligent regard for the interest of the public which the state exacts from its officers, was at most an error of judgment, not amounting to a misdemeanor in office. Maxwell, C. J., dissenting.

8. It is not a misdemeanor in office to advance money appropriated by the legislature to a disbursing agent to enable him to procure material and labor for the erection of a public building of the state where such advancement is not prohibited by law, especially where the state is protected by a sufficient bond. Maxwell, C. J., dissenting.

9. Through the negligence, incompetency, or fraud of a superintendent of construction, the state was charged for building material greatly in excess of the reasonable or market value thereof, and for labor which had not been performed. The bills rendered therefor were presented in the usual course of business, and allowed by the board of public lands and buildings, acting in good faith, and in the belief that such claims were legitimate charges against the state. Held, that the allowance of such claims is not a misdemeanor in office, for which the members of the board are impeachable. Maxwell, C. J., dissenting.

10. The board of public lands and buildings used $500 of money appropriated for the building of a cell house at the penitentiary to defray the cost of visiting prisons in neighboring states, the alleged purpose of such visit being to gain information with respect to the character and quality of cells to be selected for said building, also improved systems of ventilation, and other methods of bettering the sanitary condition of the prison. It appears that they were advised by the attorney general that said money could be lawfully used for the purpose named. Held, that the test of their liability in this proceeding is not whether such advice was technically correct. If they in good faith construed the law as authorizing them to apply the money to the object named, and actually used it for such purpose, they cannot be adjudged guilty of a misdemeanor in office, solely because this court may differently construe the law. Maxwell, C. J., dissenting.

11. Evidence examined, and held not sufficient to warrant a finding that the respondents are guilty of converting any part of the sum last above named to their own use. Maxwell, C. J., dissenting.

12. The board of public lands and buildings, out of the cell house fund above named, paid the sum of $200 to defray the expenses of the warden and chaplain of the penitentiary as delegates to the National Prison Congress at Pittsburgh, Pa. While such expenditure was not within the scope of the authority of the board, and the respondents are liable to the state for the money so appropriated, they acted in good faith, and from motives of humanity, without the possibility of personal gain; and such facts are not sufficient in law to warrant their impeachment. Maxwell, C. J., dissenting.

13. During the year 1891, and the month of February, 1892, extensive frauds were practiced upon the state by contractors for coal at the asylum for the insane at Lincoln, although the amount of such frauds cannot be determined from the proofs. Following the practice which had prevailed for many years, the board required all vouchers for supplies to be certified by the superintendent as correct. When so certified, they were compared with the contracts on file, and, if found to correspond, and the extensions correct, they were allowed. During the period mentioned, through the negligence or credulity of the superintendent, he was induced to certify to accounts largely in excess of the coal actually received, and which were allowed by the board, relying in good faith upon such certificates. The board at that time were required to disburse over $450,000 annually for current expenses, and $225,000 for the erection of public buildings, which necessitated the examination of hundreds of vouchers monthly. Held, that the failure to detect and prevent the frauds in question is not per se a misdemeanor in office. Maxwell, C. J., dissenting.

14. Bills for coal, amounting to $12,000, on account of the asylum for the last quarter of 1890 and the first quarter of 1891, remained unpaid, the appropriation for that biennial period having been exhausted. Said bills were submitted to the legislature of 1891, and referred to the proper committees for investigation, and the sum of $12,000 appropriated with which to pay them. Subsequently they were certified to by the superintendent, and allowed by the board, in the belief that they were proper charges against the state. Held, that the action of the legislature is complete justification of the act of the board. Maxwell, C. J., dissenting.

Original action before the supreme court for impeachment of George H. Hastings, attorney general, John C. Allen, secretary of state, and Augustus R. Humphrey, commissioner. Judgment for respondents.

P. H. Barry, C. D. Casper, and Geo. R. Colton, managers. G. W. Doane, S. B. Pound, W. L. Greene, and G. M. Lambertson, for prosecution.

Geo. H. Hastings, J. R. Webster, and John L. Webster, for defendant Hastings.

C. A. Atkinson and John L. Webster, for defendant Allen.

M. L. Hayward, Edward J. Murfin, and John L. Webster, for defendant Humphrey.

POST, J.

This is an impeachment proceeding under the provisions of section 14, art. 3, of the constitution. The articles of impeachment are three in number, containing in all twenty-one different specifications. However, before the final submission of the case, the first six and the twelfth specifications under article 3 were abandoned by the managers, representing the legislature, and do not call for notice in this opinion. The following is a summary of the several articles of impeachment and specifications thereunder:

Article 1. That respondents, as members of the board of public lands and buildings, did not “faithfully and properly disburse” the sum of $40,000, appropriated to build a cell house at the penitentiary by the legislature of 1891. Specification 1: That respondents, as members of said board, carelessly, negligently, and willfully appointed William H. Dorgan superintendent and agent to buy material and superintend the construction of the cell house, knowing that he was the agent of Mosher, the prison contractor; whereby said Dorgan charged the state $1 per day for convict labor on the said cell house, which could have been procured for 40 cents per day, whereby the state was defrauded. Specification 2: The respondents, as members of said board, placed in the hands of Dorgan, as agent, large sums of money in advance of payments made by him, and without adequate security, and without assurance that the same would be expended for the benefit of the state; whereby the state was defrauded. Specification 3: That Dorgan purchased stone and other material at rates exorbitant and beyond what the same could have been purchased for in open market, and that he returned false and fraudulent...

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