Walton v. Channel
| Decision Date | 31 October 1921 |
| Citation | 204 P. 661,34 Idaho 532 |
| Parties | E. F. WALTON, Respondent, v. C. B. CHANNEL, Appellant |
| Court | Idaho Supreme Court |
PUBLIC OFFICERS-REFUSAL OR NEGLECT TO PERFORM OFFICIAL DUTIES-SUMMARY REMOVAL.
1. C S., sec. 8684, providing for the removal of an officer "who has refused or neglected to perform the official duties pertaining to his office," is penal in its nature and should be strictly construed. By this is meant that the court will not enter a judgment of removal unless it is plain that the officer has neglected or refused to perform the official duties which are clearly required of him by law.
2. Where the secretary and treasurer of a highway district prepared certain financial and road reports which were submitted to the board of commissioners and approved by them and thereupon filed and published, there was not such a plain refusal and neglect by the commissioners to perform the official duties required by C. S., secs. 1517 and 1518, as to subject them to removal from office, although the reports did not in all respects comply with the law and were not published until after the date specified in the statute.
3. Under C. S., secs. 1504 and 1545, it is the duty of a board of commissioners of a highway district to consider and allow or reject claims against the district at meetings of the board duly held. The minutes of the meetings of the board must show all claims which were considered and allowed or rejected. Payment of bills cannot be legally made until after the board of commissioners, at a meeting, has considered and allowed the same.
4. The board of commissioners of a highway district cannot consider and allow or reject a bill against the district after it has been paid. Their action in attempting so to do is a nullity.
5. A failure by a board of commissioners of a highway district to consider and allow or reject claims against the district before they are paid is neglect of official duty, for which they may be removed from office.
6. Under C. S., sec. 1504, it was the duty of the board of commissioners to require of the treasurer additional bonds whenever it became certain that the funds in his hands exceeded or would exceed eighty per cent of the amount of the bonds already filed by him
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Action for removal of officer for neglect of official duties and for payment of penalty. Judgment for plaintiff. Affirmed.
Judgment affirmed, with costs to respondent.
Walters Hodgin & Bailey and Wolfe & Martin, for Appellant.
Sec. 8684, C. S., is highly penal in its nature and should be strictly construed, and will not be extended to cover acts and omissions which do not come clearly within its terms. (Coleman v. Wanamaker, 27 Idaho 342, 149 P. 292; McRoberts v. Hoar, 28 Idaho 163, 152 P. 1046; Daugherty v. Nagel, 28 Idaho 302, 154 P. 375; Corker v. Cowen, 30 Idaho 213, 164 P. 85.)
Removal from office is a crime or public offense. (Sec. 8082, C. S.) In every crime or public offense there must exist union or joint operation of act and intent. (Sec. 8087, C. S.)
If the defendant acted honestly and without intent to defraud the highway district, he will not be removed from office. (Ponting v. Isaman, 7 Idaho 581, 65 P. 434; Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171.)
The neglect or refusal mentioned in the statute must be wilful, intentional or corrupt. (Ponting v. Isaman, supra; Triplett v. Munter, supra; Corker v. Pence, 12 Idaho 152, 85 P. 388; Coleman v. Wanamaker, supra; Daugherty v. Nagel, supra; McRoberts v. Hoar, supra; Corker v. Cowen, supra.)
If the defendant honestly sought the advice of his legal adviser, and honestly followed it, he will not be removed from office, although in following such advice he acted wrongfully. (Ponting v. Isaman, supra.)
Dampier & Codding, Turner K. Hackman and Homer C. Mills, for Respondent.
Actions under sec. 8684, C. S., while of a penal nature, are not criminal. (Rankin v. Jauman, 4 Idaho 53, 36 P. 502; Hays v. Simmons, 6 Idaho 651, 59 P. 182; Ponting v. Isaman, 7 Idaho 283, 62 P. 680; Cline v. Superior Court, 184 Cal. 331, 193 P. 929; In re Burleigh, 145 Cal. 35, 78 P. 242; People v. Meakim, 133 N.Y. 214, 30 N.E. 828; State v. Foster, 32 Kan. 14, 3 P. 534; Skeen v. Craig, 31 Utah 20, 86 P. 487; State ex rel. Smith v. Brown, 24 Okla. 433, 103 P. 762; Territory v. Sanches, 14 N.M. 493, 20 Ann. Cas. 109, 94 P. 954; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 P. 1103; State v. District Court, 53 Mont. 350, 165 P. 294; State v. Borstad, 27 N.D. 533, Ann. Cas. 1916B, 1014, 147 N.W. 380; Gay v. District Court, 41 Nev. 330, 171 P. 156, 3 A. L. R. 224; State v. Medler, 17 N.M. 644, Ann. Cas. 1915B, 1141, 131 P. 976; sec. 1, art. 5, Idaho Const; Worthman v. Shane, 31 Idaho 433, 173 P. 750.)
An action penal in its nature is not a criminal action.
Ignorance of the law will not excuse an officer in a proceeding of this nature, and this is true even though he acts upon the advice of counsel as to what the law is. (Miller v. Smith, 7 Idaho 204, 61 P. 824; Robinson v. Huffaker, 23 Idaho 173, 129 P. 334; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 P. 1103; Rankin v. Jauman, supra.)
An officer is legally responsible for the errors and omissions of an inferior officer or clerk. (State v. Reid, 129 La. 158, Ann. Cas. 1912D, 1081, 55 So. 748; Attorney General v. Jochiem, 99 Mich. 358, 41 Am. St. 606, 58 N.W. 611, 23 L. R. A. 699.)
This is one of three actions instituted by respondent under the provisions of C. S., sec. 8684, to remove from office the commissioners of Twin Falls Highway District and recover from each the statutory penalty. The three causes were consolidated for the purpose of trial and appeal, and a separate judgment rendered against each of the commissioners.
C. S., sec. 8684, providing for the removal of an officer "who has refused or neglected to perform the official duties pertaining to his office," is penal in its nature and should be strictly construed. By this is meant that the court should not enter judgment of removal unless it is plain that the officer has neglected or refused to perform official duties which are clearly required of him by law.
The information in this proceeding states fifty causes of action. They may be grouped under three heads, which will be considered separately.
It is charged that appellant refused and neglected to make, file and publish certain reports for the years 1919, 1920 and 1921 as required by C. S., secs. 1517 and 1518.
C. S., sec. 1517, is as follows:
C. S., sec. 1518, is as follows: "On or before the first day of February of each year, the highway board shall make and file in its office a full, true and correct statement of the financial condition of such district on the first Monday of the preceding January, giving a statement of the liabilities and assets of the district on such first Monday of January; a copy of such statement shall be published in at least one issue of some newspaper published in the county."
The record discloses that a combined financial and road report, signed by the secretary of the district and bearing the names of the members of the board, was made on February 1, 1919, and March 12, 1920, upon blanks furnished by the state highway engineer, and a financial report published in the "Twin Falls News" on February 6, 1919, and March 13, 1920, respectively; that a separate detailed financial report was also made on March 12, 1920, and on February 10, 1921, signed by the treasurer of the district, which latter report was published in the "Twin Falls News" on March 8, 1921; that a road report, accompanied by maps, was made on March 19, 1921, signed by the appellant as president of the board and one Taylor as secretary; that maps were not called for in the blank financial and road reports furnished by the state highway engineer, but that on March 19, 1921, road reports with proper maps were made and filed with the director of the district for the years 1919, 1920 and 1921; that all of the above reports were made in triplicate, one copy being filed in the office of the highway board, one in the office of the department of public works and one with the clerk of the board of county commissioners. It also appears from the record that the board did not originally direct the secretary and treasurer to prepare the reports, but it was assumed that it was his duty to do so; that the reports were submitted to the board and approved by them, and thereupon published and filed as before stated.
While it is true that the preparation, filing and publication of these reports fulfilled an important purpose and are...
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