State v. Morgan
| Decision Date | 22 June 1926 |
| Docket Number | 1358 |
| Parties | STATE v. MORGAN, COUNTY COM'R. [*] |
| Court | Wyoming Supreme Court |
ERROR to District Court, Natrona County; HARRY P. ILSLEY, Judge.
Action by the State for the removal of G. T. Morgan from the office of County Commissioner. Judgment on directed verdict for defendant, and plaintiff brings error. See also 34 Wyo. 153 242 P. 326.
Reversed and Remanded.
E. Paul Bacheller, R. R. Rose, and George A. Weedell, for plaintiff in error.
The court erred in striking from the petition all allegations of misconduct and malfeasance, and in directing a verdict for defendant; the constitution and laws of the State require claims against counties to be itemized and verified; 1416 C S.; Article XVI, Section 7, Const; violation of these requirements by County Commissioners creates a liability on their official bonds. Neglect or refusal to perform duties required by law, is ground for removal; 1422 C. S.; bridge construction must be done under contract after advertising for bids; 3064 C. S. Misconduct or malfeasance in office is the official doing of a wrongful act or the official neglect to do an act which ought to have been done; People v Shawver, (Wyo.) 222 P. 11; State v. Ross, (Wyo.) 228 P. 636. Grounds for removal were alleged and proven; the procedure for removal of officers is summary; 1401 C. S. Summary action means short, and without delay or formality; 37 Cyc. 527-530. Formal pleadings are unnecessary; State v. Bourgeois, (La.) 14 So. 29; State v. Whittaker, 41 So. 218; State v. Borstad, (N. D.) 147 N.W. 380; Reid v. Court, (Cal.) 186 P. 634. A holdover member of an old board can be prosecuted for malfeasance or misconduct in office, even though the remainder of the old board has ceased to exist; a change in the personnel of the board does not condone offenses of a continuing member; State v. Patton, 110 S.W. 636; Everstadt v. State, 49 S.W. 654. The weight of conflicting testimony, and the credibility of witnesses are questions for the jury; Bank v. Boswell, 92 P. 624; People v. Orosco, (Cal.) 239 P. 82. The judgment should be set aside.
W. H. Patten, Ambrose Hemingway, K. W. McDonald and E. E. Enterline, for defendant in error.
The trial court was without jurisdiction to determine the controversy; the prosecution was brought under Chapter 99, C. S. and the procedure therein prescribed was necessary to confer jurisdiction; the procedure required a preliminary complaint in writing to the Governor and a direction from that officer to the prosecuting attorney; 1398, 99 C. S.; this was not followed; the communication from the Governor was based upon an alleged examination and report by the state examiner without specifying acts of misconduct or malfeasance; the prosecution must proceed, if at all, upon facts constituting such misconduct or malfeasance; the word "such" as used in the statute has a distinct meaning; Ex Parte Hull, (Idaho) 110 P. 256. The county attorney cannot proceed on any other charges save those specifically stated in the Governor's instructions; State v. Grant, 14 Wyo. 41; Minnehaha County v. Thorne, (S. D.) 61 N.W. 688; State v. Blande, 41 L. R. A. 297; White v. Veitch, (Wyo.) 197 P. 893; Kirby v. Western Union, (S. D.) 57 N.W. 202; Wishek v. Becker, (N. D.) 84 N.W. 590; State v. Thompson, (Minn.) 97 N.W. 887; Burkholder v. People, 147 P. 347; County v. Graham, (Okla.) 139 P. 1149; Schaeffer v. Jackson, (Okla.) 225 P. 961. The statute must be strictly construed; W. C. S. 1920, Sec. 5532; People v. Dolan, 5 Wyo. 243; Baker v. County Commissioners, 9 Wyo. 51; State v. Friars, (Wash.) 39 P. 104; Burke v. Knox, (Utah) 206 P. 712; State v. Leahy, 231 P. 197; Gibson v. Campbell, (Wash.) 241 P. 21. The petition did not state facts sufficient to constitute cause for removal, for the reason that the board complained of had gone out of existence, and the acts of a board are not the acts of an individual; 11 Cyc. 384; a county commissioner may exercise the duties of his office until his successor has been elected and qualified; 15 C. J. 452; 22 R. C. L. 487; 23 Am. Eng. Enc. Law, 2nd Ed. 379; Monnier v. Godbold, 5 L. R. A. N. S. 463. Acts of an individual member merge into acts of the board; 22 R. C. L. 569; Board v. Record Co., 228 P. 1103; Company v. School Dist., 79 Mo.App. 665; State v. Kennedy, (Kan.) 108 P. 837; Misconduct and malfeasance in office are never presumed; Hopkins v. Foley, 29 Cyc. 1437, 193 P. 361. The Legislature having provided the action to be taken for the illegal allowance of a claim, precludes an action against a commissioner for removal; Appel v. State, 9 Wyo. 187 at 202; State v. Grant, 14 Wyo. 41 at 59; 1422 C. S. has no connection with the case under consideration; Corker v. Pence, (Idaho) 85 P. 388; State v. Kennedy, (Kan.) 108 P. 837. County commissioners, in the absence of fraud, cannot be held personally liable for the allowance of claims; County v. Clinton, (Utah) 117 P. 1075; Bailey v. Van Dyke, (Utah) 240 P. 454; Bunten v. Assn., 29 Wyo. 461; omission to itemize claims is not ground for removal since 1417 C. S. affords a remedy for such irregularities; Corker v. Pence, Supra; State v. Kennedy, Supra; State v. Scates, (Kan.) 23 P. 479. An honest misinterpretation of a statute does not constitute misconduct or malfeasance in office; State v. Hopkins, 193 P. 361. Acts of a previous board in a previous term are not grounds for removal for cause; 1408, 1414 C. S.; 15 C. J. 453; 22 R. C. L. 569; State v. Henschel, (Kan.) 175 P. 393; State v. Jersey City, 25 N. J. L. 536; State v. Loomis, 20 S.W. 415. Malfeasance in office is a charge of a criminal nature and must be strictly construed against the State; Walton v. Channel, 204 P. 661; State v. Donahue, 135 N.W. 1030; Daugherty v. Nagel, 154 P. 375; State v. Alcorn, (Tex.) 14 S.W. 663. Malfeasance is the doing of an act wholly unlawful and wrongful; 23 Am. Eng. Enc. of Law, 442. Misconduct is any unlawful behavior in relation to the duties of office; Commonwealth v. Wood, 76 S.W. 842; State v. Bair, 73 N.E. 514; State v. Bush, 208 S.W. 607. The judgment should be sustained.
This is an action similar in form and purpose to that of State v. Scott, this day decided, and is here on error from a judgment upon a directed verdict in favor of defendant below, whose removal as a county commissioner of Natrona County was sought in the action brought by the state upon direction of the Governor, and upon allegations of the petition very much the same as those in the case of State v. Scott. It seems to have been admitted at the beginning of the trial and in connection with the making of a motion objecting to the introduction of any testimony on the part of the defendant, that the defendant, G. T. Morgan, had been elected as a county commissioner for said county for a term of four years at the general election in 1922 and was still serving that term at the time of the bringing of this action; that one T. A. Hall had served also as one of the three county commissioners of that county during the year 1924 and that his term expired by the election and qualification of his successor on or about the first Monday in January, 1925, and that J. E. Scott, the defendant in the companion case aforesaid, also served as one of the three county commissioners during the said year 1924, and that his term expired, with the qualification of himself as his own successor upon an election in 1924 for a new term on or about the said first Monday of January, 1925.
These facts are necessary to understand the purport of some of the objections made to the introduction of evidence at the beginning of the trial, to which we shall presently refer as presenting the principal question in the case. The sole error assigned in this case is that the court erred in denying the motion of the state for a new trial. The motion for a new trial was filed within the proper time after the return and filing of the verdict by direction of the court. But before that motion was acted upon, the court had entered judgment upon said verdict, in favor of the defendant and providing that he do have and recover from the plaintiff, the state, all actual and necessary expenditures made by him in connection with all trials and hearings, together with costs. The motion for a new trial appears to have been heard on September 23, 1925, and on the first day of October, to have been denied, although the order to that effect was not filed nor entered until October 12, 1925, which facts as to dates are stated merely to show the situation in connection with the other case this day decided, and not because such dates are material upon any disputed question in this case.
The grounds of the motion for a new trial, then, were (1) that the verdict is not sustained by sufficient evidence and is contrary to law; (2) that the court erred in sustaining the objections of defendant to the introduction of testimony under the several paragraphs of the petition, commencing on page 2 with the words "On or about the 27th day of January, 1924" down to and including the 38th paragraph, constituting all the acts of 1924; (3) that the court erred in directing a verdict for defendant. The motion contained also certain other paragraphs alleging error in the admission or exclusion of evidence, but which need not be considered, since they are not specifically discussed in the brief, and for the reason also that the case must be disposed of here upon other propositions.
The petition in the case contained forty separately numbered paragraphs, all but the first four consisting of charges of alleged misconduct or malfeasance in office as such commissioner; and the fifth paragraph containing many sub-paragraphs alleging...
To continue reading
Request your trial