65 P. 434 | Idaho | 1901
Lead Opinion
This action was commenced under the provisions of section 7459 of the Revised Statutes, which is as follows : “When an information in writing verified by the oath of any person, is presented to a district court, alleging that any 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, mot more than twenty days from that on which the information was presented, must proceed to hear, in 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 casesThe plaintiff (who is respondent here) filed his verified information in writing, .charging the appellant, who was then a county commissioner of Nez Perces county, with knowingly, willfully and corruptly collecting illegal fees to the .amount of $161.10, and of illegally collecting from said county -$100, which said defendant had advanced to one M. F. Gose, for his services as a lawyer, rendered in certain eases wherein .said county was interested. The information alleges that the defendant as county commissioner collected illegal fees (1) for his services in making inspection of roads; (2) for attending court as a witness; (3) for $100 advanced by him to employ an attorney; (4) for collecting mileage to which he was not entitled. The defendant answered, admitting that he had collected the various sums alleged to have been collected by him, but denied that he had willfully or corruptly collected said sums knowing them to be illegal charges against the county.
Two points are relied upon for a reversal of the judgment, to-wit: 1. That the cause was tried by the judge at chambers* and that the judge had no jurisdiction to try the same; and 2. That, the judgment is not supported by the findings.
On the first point the record contains certain affidavits showing that said cause was tried by the judge at chambers. The-record and judgment, however, recite that the cause was tried by the court without a jury, and on this appeal we are bound by the record, "and for that reason hold that the cause was tried by the court, and not by the judge at chambers.
The second assignment of error is that the judgment is not sustained by the findings. The court finds that the appellant, in making the charges complained of against the county, for services rendered in examining the roads and bridges in his district, and the expenses of team hire connected therewith, honestly believed that it was his duty as such commissioner to perform such services, and that he honestly believed, when making said charges and collecting the same from the county, that he was-legally entitled thereto. The court further finds that all of the-charges and collections made by the appellant for viewing roads, for work upon roads, and all charges made for services on public-roads, were, for services actually performed, and that prior to-performing such services the board of county commissioners, of which this appellant was a member, required the opinion of the county attorney (who was by law made the legal adviser of said board) as to the duty of said commissioners in viewing pro
As to the $100 paid to Attorney Gose, the court found that, said board of commissioners had employed the said Gose to represent the county in some civil litigation in which said Nez Perces county was a party, and that appellant had, upon the demand of said Gose, at a time when said board was not in session, paid said Gose $100 for his services in said litigation, and at the next session of said board the appellant presented his claim against said county for the sum so advanced to Attorney Gose,
It is contended that the provisions of section 1772 of the Be-vised Statutes, prohibits the presentation of the claim under consideration. Said section is as follows: “No county officer must, except for his own services, present any claim, account or demand for allowance against the county, or in any way advocate the relief asked on the claim or demand made by another. Any citizen and taxpayer of the county in which he resides may appear before the board and oppose the allowance of any claim or demand made against the county.” The appellant did not advance said $100 as a commissioner of said county, nor did he present his claim against the county as an officer of said county and we do not think that this claim comes within the. spirit of the provisions of said section.'
As to the charge of twelve dollars for two days’ attendance in court as a witness in the Yollmer Bank cases, the court found that the appellant did actually perform four days’ services as a witness in litigation between John P. Yollmer and Nez Perces county, in the district court of said county; and also found that
Dissenting Opinion
Dissenting. — It is with regret that I find my views of this ease opposed to those of my associates. In my opinion, the decision herein virtually overrules a number of decisions heretofore rendered by this court, and makes the opinion of a county attorney paramount to the statutes of this-state and the decisions of the court of last resort. The law of this case, following the rule of our code (see section 3818-of the Revised Statutes), was established by this court upon a former appeal. (See Ponting v. Isaman, ante, p. 283, 62 Pac. 680.) That decision was binding upon the district court:, and the district court properly observed it, and followed it. Now, strange to say, this court holds that the district court erred in following the former decisions of this court in this case. The conclusion reached is based upon the idea that the appellant, in claiming and collecting illegal fees from his county, acted with the belief that he was entitled to such fees. The fees consisted of per diem charges and mileage for services rendered by appellant as a county commissioner for viewing and supervising road and bridge work, for which he charged the regular per diem wage allowed by law to commissioners and mileage in traveling. The conclusion of the trial court to the effect that appellant believed that he was entitled to the compensation claimed by him/ and by him collected from his county, is evidently based upon the following opinion given by the county attorney of Nez Perces county to the board of
'“To the Board of County Commissioners of Nez Perees County, Idaho.
"Gentlemen: It seems to me that a fair construction of the laws of this state authorizes members of your board to examine and inspect the roads of your respective districts for the purpose of determining and directing the kind, character, and amount of work to be done in the several road districts of your county, and that the law, under such circumstances, authorizes compensation therefor. Any other construction of the law, in my opinion, would preclude the idea of your properly directing the work required of you under our statutes.
"Very respectfully,
“F. DANFORD,
"Prosecuting Atty.”
This opinion by the county attorney was given, as alleged^ in appellant’s answer, in July, 1899. As early as March 7, 1895, this court held in the case of Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111, as follows: “The per diem allowed by the statute to the members of boards of county commissioners is only chargeable for the time the board is actually in session. County commissioners can only act or claim compensation as such while acting as a board. The law does not contemplate that members of the board may perform services for the county as individuals, and then charge for it as commissioners. The viciousness of such course is too apparent to require comment.’’ In the same case this court further said: "The board of county commissioners are an entirety. They can only act collectively and as empowered by law. They are only engaged in transacting county business, as that term is used in section 5 of the act of 1891, when acting as a board, and it is only while so acting that they can legally charge either per diem or mileage. It needs no authority to Support this proposition.” In the same ease, speaking of the defense attempted, to the effect that the defendant believed that die was entitled to the compensation charged and collected,
The rule laid down in Rankin v. Jauman has been followed by this court in a number of cases. (See Hampton v. Board, 4 Idaho, 646, 43 Pac. 324; Conger v. Board, 5 Idaho, 347, 48 Pac. 1064; Miller v. Smith, ante, p. 204, 61 Pac. 824.) In the latter case this court, speaking through Mr. Justice Sullivan, said: “The defendant testified in his own behalf that his belief and understanding were that it was his duty, as county commissioner, to take care of all roads and bridges, where it was absolutely necessary, and that he should get therefor six dollars per day.” This court held in Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111, as follows: “The per diem allowed by the statute to members of the board of county commissioners is only chargeable for the time the board is actually in session. The law does not contemplate that members of the board may perform services for the county as individuals, and then charge for it as commissioners. The viciousness of such course is too apparent to require comment/ .... The law does not authorize a member of the board to act for the board, nor has it given a single member of the board, when acting, alone, any authority whatever.If county commissioners were permitted to usurp the office of road overseer, and perform the duties of such officer, and pay themselves six dollars per day and expense therefor, road work would cost the. taxpayers much more than was contemplated by the law-making power; and county commissioners cannot shield their unlawful acts under the plea of ignorance of the law, for if that would relieve them of persistent and many times repeated unlawful acts, it would be impossible to remove an unfaithful or incompetent officer from office.” In this same case, in the second, third, fourth, fifth, and sixth syllabi, prepared by Mr. Justice Sullivan, the rules laid down in the opinion for the
Apply the rules laid down in Miller v. Smith, supra, to the case at bar. Here the trial court found that for eighteen different days the appellant charged, allowed himself, and collected from his county per diem of six dollars for services in looking after roads and bridges; yet the judgment ousting him from office is reversed because the district court finds this ultimate fact: that he “honestly believed that he was entitled to the amounts charged and received at the time he made said charges, and at the time he received said moneys therefor.” The probative facts found by the district court show conclusively that appellant charged and collected illegal fees from his county. The law in regard thereto is “plain,” and involves no obscure statute. This ease, in so far as the charges for road and bridge supervising is concerned, is identical with the case of Miller v. Smith, supra. Charges for illegal fees are repeatedly made. The facts found by the court show that they were repeated eighteen times, yet the ultimate fact, or conclusion resultant from those facts, as determined by the district court, to the effect that he acted honestly, is upheld. One rule is applied to Smith; another, under the same con
The decision in the case at bar is so palpably wrong, so palpably inconsistent with the laws of this state, statutes, and former decisions, that I am unable to assent thereto. The correct and consistent administration and application of law is of much more importance than is the result of a controversy of the kind before us in any particular case. If the rule is to be adopted and followed in this jurisdiction that officers may collect from their counties illegal fees, and escape the punishment for such act prescribed by section 7459 of the Revised Statutes, upon the plea that he “honestly believed that he was entitled to such fees,” then, verily, the taxpayers of this state are at the mercy of dishonest officials, and the county treasuries will be looted and plundered at will. Said section is as follows: “When an information in writing, verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services Tendered 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.”
Upon this particular point I desire to quote further from the decision in Miller v. Smith, supra, where this court, speaking through Mr. Justice Sullivan, said: “Counsel for appellant contend that, while the acts for which their client is accused in many instances were infractions of the law, it has not been proved that said acts were done fraudulently, willfully, or corruptly. The statute itself (section 7459) does not specifically require that fees shall be fraudulently, willfully, or corruptly charged and collected, to warrant the removal of the officer, nor does it declare that neglect of official duty shall be willful or corrupt. The statute contemplates that when illegal fees are charged and collected, or when an officer has refused or neglected to perform the official duties pertaining
There is another error, according to my judgment, in the decision in this case, and that is in holding that commissioners may pay out funds for the county, and claim and collect them back from the county. Section 365 of the Revised Statutes is as follows: “Members of the legislature, territorial (state), county, city, district and precinct officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members.” Section 1782 of the Revised Statutes, relating to county commissioners, provides: “No member of the board must be interested, directly or indirectly, in any property purchased for the use of the county, nor in any purchase or sale of property belonging to the county, nor in any contract made by the board or other person on behalf of the county,'for the erection of public buildings, the opening or improvement of roads, or the building of bridges, or for other purposes.” Section 1772 of the Revised Statutes, is as follows: “No county officer must, except for his own services, present any claim, account or demand for allowance against the county, or in any way advocate the relief asked on the claim or demand made by another.” This court in Osborn v. Ravenscraft affirmed a judgment in favor of a commissioner for cost paid by him in a suit, holding the appeal in that case “frivolous.” But under the statutes quoted, and that well-defined public policy upon which
Dissenting Opinion
Dissenting. — For the reasons stated in the dissenting opinion in this case, a rehearing should be granted.
Rehearing
ON REHEARING.
This is a petition for a rehearing, which-we have carefully considered, and find that it contains nothing but what was considered in our decision heretofore rendered. Counsel for the petitioner contends that there is no distinction between this case and the cases of Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111; Miller v. Smith, ante, p. 204, 61 Pac. 824; Smith v. Ellis, ante, p. 196, 61 Pac. 695. But to us there is a clear distinction, and the decision in this case in no way modifies or overrules the law as laid down in those-cases. In those cases the record clearly shows that the defendants knowingly, willfully, and corruptly charged and collected fees to which they were not entitled, while in the case at bar the record shows that the illegal fees charged and collected were not knowingly, willfully, or corruptly charged and collected. In the former cases the intent to swindle the county is shown; in the latter, it is not. A rehearing is denied. What we have said as to a rehearing in the case of Ponting v. Isaman applies to the petition for a rehearing in Tannahill v. Black, post, p. 594, 65 Pac. 1113, and a rehearing in that case is denied.