85 P. 388 | Idaho | 1906
This action was brought under the provisions of section 7459 of the Revised Statutes, to remove the respondent from the office of county commissioner of Elmore county. Two separate causes of action are set out in the information. In the first cause, after alleging that appellant is a citizen and a taxpayer of the state of Idaho, and that respondent is one of the duly elected, qualified and acting county commissioners of said county, appellant alleges on information and belief that the respondent had /‘willfully, knowingly and intentionally failed, neglected and refused to perform the official duties pertaining to his office.” Then follow eight specifications of instances in which it is alleged he has so failed. The first specification refers to his action in conjunction with the other members of the board of county commissioners acting as a board of equalization, and states two matters in which it is alleged he knowingly, willfully and intentionally failed to perform the duties of his
The second specification is that respondent failed to organize a board of health, and failed to make or establish any rules or regulations necessary and proper to prevent the spread of contagious or infectious diseases, and that there had repeatedly been cases of smallpox in the county requiring such rules and regulations.
The third specification alleges that there were several eases of smallpox at three different specified times and places in said county during respondent’s term of office, their liability to spread and become epidemic, and that it was necessary that said cases be quarantined, and that in each case he failed to quarantine the case .or to take any other legal steps to prevent the spread of such disease.
The remaining five specifications relate to the illegal allowance of bills, and ordering county warrants issued in payment thereof.
Specifications 5, 6, 7 and 8 allege the allowance of various bills of county offices which were neither itemized nor accompanied by vouchers, alleging that he failed to perform the duties of his office in not rejecting said claims or in not requiring vouchers to be furnished therewith.
The second cause of action, after the formal allegations, alleges on information and belief that respondent has willfully, knowingly and intentionally been guilty of charging and collecting illegal fees for services rendered in his office in the following particulars, to wit: 1. That he did knowingly, willfully and intentionally present to the board of county commissioners of said county at their July, 1905, meeting, a claim for board while acting as a member of such board of commissioners, amounting to the sum of $6, which said claim was verified according to law, thereafter allowed by said board, and a county warrant ordered to be drawn and issued therefor to the respondent, and that respondent did knowingly, willfully and intentionally accept and receive said county warrant. Then follows a prayer that a citation issue, and upon a return thereof the court proceed to consider this information and the evidence in support thereof, and that the judgment be entered depriving the respondent of his said office and in favor of appellant for the sum of $500 and costs, and such further relief as to the court shall seem proper. To that information the respondent filed a demurrer on the following grounds:
“ (1) That several causes of action have been improperly united, to wit: That such complainant informs against the defendant as a member of the board of equalization, and*158 in the same count alleges against him as a member of the board of county commissioners.
“ (2) That the first cause of action in the said complaint is ambiguous, unintelligible and uncertain: 1. That it is ambiguous for the following reasons, to wit: (a) That it cannot be determined from paragraph 3 in the first cause of action whether informant alleges against the defendant as member of the board of county commissioners or as a member of the board of equalization; (b) It cannot be determined from subdivisions 2 and 4 of the complaint and from the complaint at all whether the allegations are made against the defendant as member of the board of county commissioners or as a board of health, or both or at all; (c) It is alleged that defendant refused to equalize the assessment of Elmore county and immediately following said allegations proceeds to set out in detail the action of the defendant in equalizing the said assessment; (d) It is alleged that defendant failed as a member of said board to compel an assessment of the said property set out in the complaint at its full cash value, and in the same paragraph alleges in detail the action of the defendant as a member of said board, the assessment at certain values therein set out. (3) That the second cause of action set out in plaintiff’s complaint does not state facts sufficient to constitute a cause of action. Also, second, that the first cause in the said complaint does not state facts sufficient to constitute a cause of action. ’ ’
A motion to strike was also interposed moving to strike out all of the specifications of the first cause of action as frivolous, for the reason that they were alleged on information and belief, and also to strike out all the specifications of the second cause of action on the grounds that the court had no jurisdiction of such matter, and . that the charges could not be considered by the court; that if any cause of action existed it was under sections 7445 and 7447 of the Revised Statutes. The cause came on for hearing on said demurrer and motion and the court sustained both the demurrer and motion. Thereupon appellant refused to plead
As the motion to strike and the demurrer are based largely on the same grounds, we will dispose of them both together. One of the points raised is that an information under the provisions of section 7459 of the Revised Statutes cannot be made on information or belief. That point appears in the case of Hays v. Simmons, 6 Idaho, 651, 59 Pac. 182, and the information in that case was based wholly on information and belief. If facts set forth in the information are matters of record and accessible, or within the personal knowledge of the informer, the allegations should be made positively, and not on information and belief; otherwise the allegations may be made on information and belief. The effect of most of the objections made by the motion and demurrer is that the information does not state facts sufficient to constitute a cause of action under the provisions of said section 7459, supra, which is as follows: “When an information in writing verified by the oath of any person is presented to a district court, alleging that an officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day, or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same and the answer and evidence offered by the party informed against; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for $500 in favor of the informer and such costs as are allowed in civil cases.” The information must contain language sufficient to charge the, defendant with being guilty of charging and collecting illegal fees for
Certain allegations of refusal or neglect to perform official duty are in regard to the failure of the defendant acting as a member of the board of equalization, in that said board neglected to equalize the assessment of the property of the said county, and particularly of the property in the towns of Mountainhome and Glenn’s Ferry, and that board is also charged with having failed and neglected to enforce and compel an assessment of the property within their county at its fair cash value. Numerous instances are set forth in the information wherein it is .alleged they failed to equalize the assessment of the property in said county and where they failed to assess such property at its fair cash value. It is also shown that the board of equalization did meet as such board and undertook to equalize the assessments, and if the allegations in the information are true, which for the purposes of this appeal must be taken as true, they show that such assessments and equalizations were not such as were contemplated by the law. While absolute equality and justice are unattainable in the equalization of assessments and in the assessment of property, the allegations would indicate that the board came about as far from equalizing assessments and assessing the property of their county at its fair cash value as could have been done. But the allegations show that the board of equalization did meet and act. That being true, they did not neglect or refuse to act as such board. If they acted corruptly in the equalization of assessments, they could not be removed from office under the provisions of section 7459. The provisions of section. 7445 were intended to meet that class of misconduct.
The defendant is accused of knowingly, intentionally and willfully, as a member of the board of commissioners, negleet
It is alleged that the board failed to organize a board of health. Under the provisions of section 1150 of the Revised Statutes, as amended by the laws of 1903, page 364, the board of county commissioners are required to appoint an experienced and skillful physician, and that such physician, together .with the board of county commissioners, constitute the board of health, and such board continues until their successors are appointed and qualified. That completes the organization.
It is alleged that said board refused to make or establish any sanitary rules and regulations necessary and proper to prevent the outbreak or spread of contagious, etc., diseases. That allegation would clearly indicate that some rules or regulations had been made for that purpose, and that the informant did not deem them “necessary” and “proper” to prevent the outbreak or spread of such diseases, or that such rules did not meet the approval of the informer. The allegations on this point are not sufficient, and do not state a
The remaining specifications of the information relate to the action of the respondent in connection with the other members of the board of county commissioners in allowing certain hills to himself and other persons. It is.alleged that certain bills were allowed which were “not properly itemized and were not accompanied by any vouchers. ’ ’ And it is contended that as the law requires bills to be itemized and vouchers furnished therewith, the defendant had failed and neglected to disallow said bills and thus violated his official duty. The provisions of section 773 of the Revised Statutes provide that the commissioners must not hear or consider any claim in favor of an individual against the county, unless upon an account properly made out, giving all the items of the claim, etc. Now, under that section an allegation that a claim was not “properly” itemized is not sufficient. It is not sufficient to show that the bills did not give “all items of the claim.” It is also alleged that proper vouchers did not accompany said bills or claims, such vouchers as are required by the provisions of section 1763 of the Revised Statutes, as amended by Session Laws of 1899, page 405. The failure to properly itemize a claim or to furnish vouchers therewith is not a cause for the removal of an officer under the provisions of said section 7459. It is not a neglect or refusal to perform an official duty under the provisions of said section. It is not a charging or collecting of illegal fees for services rendered or to be rendered. Corrupt or willful allowance of illegal claims by the county commissioners may be reached by proceedings under section 7445 or by appeal, but not by proceedings under the provisions of section 7459.
In the second cause of action the informer alleges the collection of illegal fees by the respondent, in that he presented a claim for $6 for board while attending meetings of the board. In Stookey v. Board, 6 Idaho, 542, 57 Pac. 312, Reynolds v. Board, 6 Idaho, 787, 59 Pac. 730, Clyne v. Bingham County, 7 Idaho, 75, 60 Pac. 76, this court held that an officer was not entitled to compensation for his board. In 1901, after the
The views herein expressed in no wise conflict with the conclusions reached in Rankin v. Jauman, 4 Idaho, 53 and 394, 36 Pac. 502, 39 Pac. 1111, Hays v. Simmons, 6 Idaho, 651, 59 Pac. 182, Miller v. Smith, 7 Idaho, 204, 61 Pac. 824, or Ponting v. Isaman; 7 Idaho, 581, 65 Pac. 434. The judgment of the trial court is affirmed, with costs in favor of respondent.