State v. Scott

• Decision Date: 22 June 1926
• Docket Number: 1359
• Citation: 247 P. 699,35 Wyo. 108
• Parties: STATE v. SCOTT, County Com'r. [*]
• Court: Wyoming Supreme Court

247 P. 699

35 Wyo. 108

STATE v. SCOTT, County Com'r. ^[*]

No. 1359

Supreme Court of Wyoming

June 22, 1926

APPEAL from District Court, Natrona County; HARRY P. ILSLEY, Judge.

Action by the State for the removal of J. E. Scott from office as County Commissioner. Judgment for removal was vacated plaintiff's action and petition were dismissed, and plaintiff appeals. See also 34 Wyo. 164; 242 P. 322.

Affirmed.

E. Paul Bacheller, R. R. Rose, and George A. Weedell, for appellant.

The court erred in striking from the petition allegations of misconduct and malfeasance alleged to have been committed in 1924; an officer may be removed in one term for misconduct committed in a previous term of the same office; State v Howse, (Tenn. 1916) Ann. Cas. 1917 C. 1125; State v Bourgeois, (La.) 14 So. 28; Tibbs v. Atlanta, (Ga.) 53 S.E. 811; Allen v. Tufts, (Mass. 1921) 17 A. L. R. 274; Hawkins v. City, (Mich. 1916) Ann. Cas. 1917 E. 700; State v. Welch, (Ia. 1899) 79 N.W. 369; Territory v. Sanches, (N. M.) 94 P. 954; State v. Megaarden, (Minn.) 89 Am. St. Rep. 534. Cases to the contrary are decided on the principle of condonation; Brackenridge v. State, (Tex.) 4 L. R. A. 360; Graham v. Jewell, (Ky.) 263 S.W. 693; State v. Patton, (Mo.) 110 S.W. 636; and are qualified if gross immoral acts or defalcation are shown; State v. City, 9 Wisc. 254; and retention of money in a present term, unlawfully retained in a preceding term, constitutes misconduct in the present term; State v. Lazarus, 1 So. 361; Woods v. Varnum, 24 P. 843; State v. City, 33 N.Y.S. 165. This proceeding is based upon the following sections of the constitution and statutes of the State: Article 3, Sec. 19; Art. 16, Sec. 7; Art. 6, Sec. 8, Const; 1398, 1399, 1400, 1401, 1416, 1417, 1422, 1373; 3064, 1408, C. S. A sheriff may be removed for misconduct in a previous term; State v. Welsh, (Ia.) 79 N.W. 369; State v. Watertown, 9 Wis. 254; offenses committed subsequent to re-election, but in the same term, are not condoned by re-election; Brackenridge v. State, Supra; nor unlawful retention of funds; State v. Patton, Supra; Smith v. Ling, (Cal.) 9 P. 171; Advisory Opinion, 31 Fla. 1, 12 So. 114; 18 L. R. A. 594. A careful examination of many of the cases cited for defendant will show that they are not applicable here; additional authorities supporting the principle of removal for acts committed during a previous term are: State v. Hasty, 50 L. R. A. N. S. 559; People v. Auburn, 33 N.Y.S. 165; State v. Patton, Supra. Judgment was rendered on September 3, 1925. Defendant's motion, filed on September 10th, came too late since it sought to vacate a judgment rendered at a previous term; the final judgment of a court is that rendered in open court and not the memorandum prepared and signed by the Judge as a guidance to the clerk; a motion to vacate and set aside a judgment, rendered at a previous term, constitutes a collateral attack upon the judgment; a judgment will be sustained upon a collateral attack unless wholly void; the distinction between rendition and entry is clear; Freeman, 5th Ed., Sec. 46-48; 15 R. C. L. 571, 578; U.S. v. Stoller, 180 F. 910; in Re Cook's Estate, (Cal.) 19 P. 431; Trust Co. v. Mining Co., (Nev.) 97 P. 390; McIntyre v. R. Co., (Mont.) 191 P. 1065; Livingston v. Livingston, (Ind.) 121 N.E. 119; Goldreyer v. Cronan, (Conn.) 55 A. 594. 5896 authorizes a judgment notwithstanding the verdict, at the same term; a motion to vacate the judgment was a collateral attack; Freeman, 5th Ed., 547; People v. Norris, (Cal.) 77 P. 998; Miller v. Mattigan, (Okla.) 215 P. 742; Reid v. Fillmore, (Wyo.) 73 P. 849; Board v. Co., (Kan.) 103 P. 996; Freeman, supra, Sec. 305. Motions are defined in Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255. Procedure for attacking judgments, at a succeeding term, is prescribed by Chapter 370, C. S. Irregularities in obtaining a judgment is defined in Mitter v. Coal Co., (Wyo.) 206 P. 152. Judgments will be sustained upon a collateral attack unless wholly void; Freeman, Sections 221, 222; Land Co. v. Hoffman, (Wyo.) 219 P. 561; State v. Court, (Wyo.) 238 P. 545; Freeman, Sec. 226. Claims against counties must be itemized and verified before allowance; 1416 C. S. A violation of this section creates liabilities on the commissioner's bond; 1417, C. S.; and is ground for removal; 1422 C. S.; bridge construction must be done by contract after advertising for bids; 3064, C. S. Misconduct and malfeasance in office has been defined by this court; People v. Shawver, (Wyo.) 222 P. 11; State v. Ross, (Wyo.) 228 P. 636. Actions for removal must be tried in a summary manner; 1401, C. S.; meaning without delay or formality; 37 Cyc. 527; State v. Borgeois, Supra; State v. Whittaker, 41 So. 218; State v. Borstad, (N. D.) 147 N.W. 380; Reid v. Court, (Cal.) 186 P. 634. The judgment rendered on October 12, 1925 should be vacated, and the judgment rendered on August 5, 1925 should be sustained.

W. H. Patten, Ambrose Hemingway, K. W. McDonald and E. E. Enterline, for respondent.

The trial court was without jurisdiction of the case; the prosecution was commenced under Chapter 99, C. S., but the procedure therein described was not followed; 1398, 99 C. S. The prosecution was founded upon an examination made by the state examiner and not upon a verified complaint in writing of electors of the county, made to the Governor. The word "such", as used in Section 1399 C. S., has a definite meaning; Ex Parte Hull, (Idaho) 110 P. 256. Mere assertions of counsel cannot dispense with the plain requirement of the statutes, requiring charges against a public officer to be in writing in accordance with the statute; State v. Grant, 14 Wyo. 41; County v. Thorne, (S. D.) 61 N.W. 688; State v. Blande, (Mo.) 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, (Colo.) 147 P. 347; Kingfisher County v. Graham, (Okla.) 139 P. 1149; Schaeffer v. Jackson, (Okla.) 255 P. 961; Holdridge v. Fields, (Mo.) 275 S.W. 642. The statute is penal and must be strictly construed; W. C. S. 1920, Sec. 5532; People v. Dolan, 5 Wyo. 245; Baker v. County Commissioners, 9 Wyo. 51; State v. Friars, (Wash.) 39 P. 104; Burke v. Knox, (Utah) 206 P. 712; State v. Leahy, (N. M.) 231 P. 197; Gibson v. Campbell, (Wash.) 241 P. 21. The petition does not state facts sufficient to constitute a cause of action or grounds for removal of defendant; the individual acts of a member are merged in the action of the board; 22 R. C. L. Sec. 165, p. 487; Monnier v. Godbold, (La.) 40 So. 604; Commissioners v. Seawell, (Okla.) 41 P. 592; Commissioners v. Co., (Okla.) 228 P. 1103; State v. Kennedy, (Kan.) 108 P. 837; 23 A. & E. of Law, 2d Ed., 379, Sec. E. The Legislature having provided what action can be taken against the board for wrongful allowance of claims, in violation of 1416 C. S., precludes an action against a commissioner for removal; Appel v. State, 9 Wyo. 187; State v. Grant, 14 Wyo. 41. Payment of claims devolves upon the board and not upon individual members; Corker v. Pence, (Idaho.) 85 P. 388; State v. Kennedy, Supra; Hudson v. Dertsch, 220 P. 109; 1422 C. S. has no application to this case; the board acts in a quasi judicial capacity, in the allowance of claims, and, in the absence of fraud and corruption, members cannot be held personally liable therefor; Salt Lake County v. Clinton, (Utah) 117 P. 1075; Bailey v. Van Dyke, (Utah) 240 P. 454; Bunten v. Assn., 29 Wyo. 461; State v. Friars, supra. Where removal is sought for neglect of duty, it must be shown that the action of the official was prompted by evil intent or legal malice, and committed during his current term; 15 C J 453; State v. Zeagler, 202 N.W. 94. An official cannot be removed for alleged misconduct or malfeasance committed in a prior term; 29 Cyc. 1410; State v. Hasty, (Ala.) 63 So. 559; Thurston v. Clark, (Cal.) 40 P. 435; Re Advisory Opinion, (Fla.) 60 So. 334; State v. Henschel, (Kan.) 175 P. 393; State v. City, 25 N. J. L. 536; Conant v. Grogan, 6 N.Y.S. R. 322; Carlisle v. Burke, 14 N.Y.S. 163; State v. Loomis, 29 S.W. 415; Gordon v. State, 43 Tex. 330; State v. Patten, (Mo.) 110 S.W. 636; Graham v. Jewell, (Ky.) 263 S.W. 693. A judgment entered on September 1, 1925 was properly vacated by judgment made October 1, 1925 and entered October 12, 1925; 1401 C. S.; Hahn v. Bank, 25 Wyo. 467 does not support plaintiff's contention; the vacation of the judgment was authorized by our statutes; 5895 C. S.; Trimble v. Doty, 16 O. S. R. 119; Jones v. R. R. Co., 23 Wyo. 140; Grover Co. v. Ditch Co., 21 Wyo. 204; the court had inherent power to vacate the judgment; McGinnis v. Beatty, 28 Wyo. 328; Mitter v. Coal Co., 28 Wyo. 439; White Co. v. Hamilton, (Wyo.) 226 P. 687; Burnham v. Burnham, 242 P. 124; Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255. Error cannot be assigned upon the written or oral opinion of the trial judge in announcing his decision; Co. v. Barker, 2 F. (2nd) 468; Outlook Co. v. Surety Co., (Mont.) 223 P. 905; Troy v. Troy, (Cal.) 238 P. 143. The judgment vacating the judgment first rendered should be affirmed.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

This is an action brought in the name of the State by the county and prosecuting attorney of Natrona County, in the district court in that county, for the removal of the defendant, J. E Scott, from his office of County Commissioner. The petition, commencing the action, was filed on June 8, and the answer on July 11, 1925. The action is conceded to have been brought under the provisions of Chapter 99, Comp. Stat. 1920, which comprises Sections 1398 to 1407 inclusive of that compilation, and relates solely to the...