In re Marks, No. 3,685

No. 3,685 | Cal. | Jul 1, 1873

By the Court:

The complaint here was filed in the District Court of the Yineteenth Judicial District by L. E. Crane, under the provisions of the Act of March, 1853, “ to prevent extortion in office and enforce official duty.” (Acts. 1853, p. 40.) It alleges that Marks holds the office of State Harbor Commissioner, and that he has neglected to perform the duties of his office—some sixteen specifications of such, his alleged neglect, being set forth. "Upon demurrer filed by Marks, the Court below gave judgment dismissing the proceedings, and from this judgment this appeal is brought.

1. There can be no doubt that the case made by the complaint is one directly within the provisions of the Act of 1853 (p. 40). That Act was designed to afford a remedy of a summary character against officeholders who were guilty of extortion or of neglect in the performance of official duty, and the case of Marks is brought by the complaint within the latter category.

2. It is clear, too, that the Act of 1853 has not been repealed, but is still in force.

3. There is nothing, either, in the Act which requires that Crane, who preferred this complaint, should aver or prove that he is a party in interest in the strict sense, or has himself sustained any special damage by reason of the official neglect complained of. The purpose of the statute was the wholesome one of authorizing any person who would take the duty upon himself to institute an inquiry into the conduct of certain public officers in the manner pointed out. It is not the personal interest of the complainant which the statute regards, but the higher and more important interest of the people and the body politic in the honest and faithful discharge of official duties by public servants. The right of a private person to institute an inquiry into the conduct of officeholders under the Act in question may be said to be akin to the right of every elector to contest the claim of any person asserting himself to have been elected to office—to the nature and purpose of which latter we had occasion to refer in Minor v. Kidder, 43 Cal. 229" court="Cal." date_filed="1872-01-15" href="https://app.midpage.ai/document/minor-v-kidder-5437641?utm_source=webapp" opinion_id="5437641">43 Cal. 229.

The third section of the Act of 1853 is in the following words: “Sec. 3. The District Courts shall have jurisdiction of all cases arising under this Act.”

It is- claimed by the respondent that it -was not competent to the Legislature to confer this jurisdiction upon those Courts. The argument in support of this proposition is rested by counsel upon the clauses of the Constitution by which the jurisdiction of the District Courts and of the County Courts are respectively defined, and it is thereupon claimed that this case is a special case or proceeding, and is, therefore, necessarily cognizable only in the latter Courts. But ’even if it were in itself such special case, it is also, as we have already seen, a special case, the jurisdiction over which has been otherwise provided for, and is, for that reason, not a case within the rightful jurisdiction of the County Court. In the eighth section of the sixth Article of the Constitution, defining the jurisdiction of the County Courts, it is provided that those Courts shall have jurisdiction “ of all such special cases and proceedings as are not otherwise provided for,” etc. It is, therefore, practically left to the legislative will to determine whether the jurisdiction over any given special case, or number of special cases, shall be vested in the County Court or some other Court, and in this instance the jurisdiction has been in express terms conferred on the District Court. But our judgment here proceeds upon.grounds wholly apart from the consideration of whether the case in hand can be fairly brought within the definition of a special case'or not. It is provided in substance in the Act of 1853 that any person holding any office in this State who shall neglect to perform his official duty according to law shall be deprived of his office. So far the Act is certainly only declaratory of the common law; for neglect of official duty amounted at common law to an impeachable misdemeanor in office, and, upon conviction, the officer might be removed. (1 Story on the Constitution, Sec. 800.) The Constitution of this State (Art. IV) undertook to distribute this power to remove public officers for misdemeanor in office—of which, as we have said, neglect of official duty was one. It, for this purpose, placed the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, Attorney General, Surveyor General, Justices of the Supreme Court, and District Judges in one class, and placed all other civil officers in another class; it then provided that those of the first class should be liable to impeachment—(that is, to be accused by the Assembly and tried by the Senate) for any misdemeanor in office (Sec. 18), and that those of the second class should “be tried for misdemeanor in office in such manner as the Legislature may provide.” (Sec. 19.)

The Act of 1853 does provide how—in what manner— upon what procedure—in what Court—officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the Legislature to enact such a statute (under the latter clause of Sec. 18) is plain—as obvious as is the power of the Assembly to prefer and that of the Senate to try articles of impeachment under the first clause of the same section.

The power to remove certain officers for misdemeanor in office is exercised only by the Assembly and Senate under the name of impeachment—the. like power to remove all other officers under like circumstances and for like causes is to be exercised “ in such manner as the Legislature may provide.” (Sec. 19.) The power to provide the manner in which a delinquent is to be tried in the second case is on a footing with the power to directly remove the delinquent by the judgment of the Senate in the first case.

When, therefore, the Legislature, pursuant to this clause of the Constitution, conferred the power upon the District Courts to try the delinquents of the second class, the power of those Courts was not at all referable to the sixth article of the Constitution, defining the judicial power, and hence an argument against the jurisdiction of the Court, drawn from a consideration of that article, is of no more force than if addressed to the Senate upon a trial of impeachment. It is the exercise by the District Court of the power to remove from office, upon conviction had, which is in fact the power of impeachment, and is impeachment in every respect, except the mere form of procedure pursued.

The Assembly is not, indeed, the accuser, nor does the Senate try the accusation. The Legislature has substituted a private citizen, it may be, instead of the one, and the District Court in the place of the other. The substance of the judgment to be entered in case of conviction is prescribed, and the rules of practice governing in civil cases are to be applied, and the benefit of an appeal secured. These make up the manner in which the trial is to be had.

We, therefore, think that it was the duty of the Court below in this case to have entertained the proceedings against Marks; and its judgment must be reversed, and the cause remanded, with directions to overrule the demurrer, and for further proceedings.