252 P. 765 | Cal. Ct. App. | 1927
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *741 This proceeding is brought for the purpose of prohibiting the Superior Court from proceeding with the trial of an accusation against Mark Rose as one of the directors of the Imperial Irrigation District, and for his removal from such office as such director. The accusation in effect alleges that George Herrick Davis is a resident, qualified elector and voter and taxpayer within the district; that Mark Rose was elected a director of the district in February, 1921; that Mark Rose has not nor has any person been elected as his successor and that though an election was purported to have been held in February, 1925, that by a judicial determination the purported election was held void; that therefore Rose continues to hold by reason of the election of 1921; that since the election in 1921 Rose has "knowingly, willfully, corruptly, wrongfully and intentionally" violated the express duty of his office in the following particulars:
1st. That Mark Rose as such director approved and caused the expenditure, by warrants, of large sums of money for illegal and improper purposes (all of which are set out in detail) and failed to prevent the payment thereof, having at the time ability so to do.
2d. That Mark Rose as such director incurred indebtedness on behalf of the district, illegally and unlawfully and for purposes in excess of the provisions of the California Irrigation District Act and for purposes for which the district could not expend its funds; and that he failed to prevent the incurring of the indebtedness, he having at the time the ability to prevent. The alleged improper expenditures are also set out in detail.
3d. That Rose as such director did wailfully, unlawfully, corruptly, and intentionally pay and cause to be paid to himself $4,967.74, which he claimed was to cover traveling and other expenses, laid out by him in lobbying for the passage of an act known as the "Swing-Johnson bill"; but that in truth and in fact a large portion thereof was not *743 incurred or paid out by Rose, but was appropriated to his own use and benefit; and that Rose also had paid to himself $1,500 as and for traveling expenses to be later accounted for, for which he has at all times refused to account; and that all of said payments are in addition to and in excess of the salary allowed by the act.
4th. That Rose as such director has charged and collected mileage at the rate of fifteen cents per mile for attending meetings of the board of directors.
5th. That Rose as such director also caused to be paid to himself in varying amounts the sum of $2,809.56 for mileage and other expenses, which mileage charges were false and fraudulent, and Rose converted the sums so collected to his own personal use and benefit.
6th. That on December 7, 1923, Rose demanded and caused to be paid to himself the sum of $1,260 as and for extra compensation and in addition to the salary allowed by law.
7th. That, although formal demand was made in and since March, 1925, for an accounting and that the board recover the expenditures alleged to have been improperly paid out, no account has been rendered and no action taken to recover the expenditures.
8th. That subsequent to a permanent injunction issued by the Superior Court restraining Rose and his codirectors from expending any sums in behalf of any legislation pending in the Congress of the United States, Rose, for the sole purpose of evading the injunction, caused the salaries and compensation of certain employees to be raised; collected from the employees the difference and continued to spend the same for the prohibited purposes; and employed others ostensibly to work for the district, but in fact to work for and on behalf of the legislation.
It is unnecessary to attempt to enumerate the various items expended further than to say that other than those paid to the petitioner and defendant, they are all alleged to have been in one way or another incurred or expended in behalf of pending legislation, either for publicity or in some way connected with political propaganda.
The defendant demurred, generally and specifically, to the accusation and moved to strike certain portions thereof. The demurrer was overruled, but the motion was granted *744 in part. The court struck out practically all of the items of expenditures for propaganda work as recited above.
Petitioner takes the position that the accusation does not allege facts sufficient to constitute a cause for removal under section 772 of the Penal Code or section 73 of an act known as the "California Irrigation District Act" (Stats. 1897, p. 254), Deering's General Laws, 1923, page 1425, and, especially, that section 772 of the Penal Code does not confer on the court jurisdiction to remove a director of an irrigation district.
The respondent George Herrick Davis complains of the action of the respondent Court in striking out portions of the accusation and in an affirmative answer asks that this court advise the trial court of the law applicable to the trial of said action. He especially urges that under section 772, neither a demurrer nor a motion to strike is contemplated and that the order striking portions of the complaint should be declared ineffective, and the trial be permitted to proceed, under the original allegations and such denials as may be interposed.
[1] It being conceded and established by a long line of decisions that the writ of prohibition is the proper remedy where the accusation does not state facts sufficient to constitute a cause for removal or confer upon the Superior Court the jurisdiction to proceed with the accusation, the first question necessary for us to consider is whether or not in this proceeding we should review the action of the respondent Court in striking out portions of the accusation. [2] It must be borne in mind that the function of the writ of prohibition is preventive and not corrective. (Traffic Truck Sales Co. v. Justices' Court,
[3] In this case we find two fatal differences; first, that the individual respondent, and not the respondent Court, asks for the relief, and second, the order sought to be reviewed is an intermediate or interlocutory order which is not final in its nature. [4] An appeal from the order does not lie on account of the fact that it is intermediate in its nature and not made an appealable order (Swain v. Burnette,
For the purposes of this hearing, therefore, we dispose of the charges herein designated as 1st, 2d, 8th, and a part of the 7th, leaving for consideration the 3d, 4th, 5th, and 6th and that part of the 7th wherein it is alleged that no account has been rendered.
[6] Petitioner's contention that "charging and collecting illegal fees for services rendered or to be rendered in his office" refers not to overcharges collected from the political subdivision of which he is an official, but only to the collection of fees from third parties, cannot be sustained. [7]
Nor is it necessary in our opinion to determine whether or not the salary provided for by section 57 of the California Irrigation District Act in an irrigation district containing five hundred thousand acres or more, which it is alleged the Imperial Irrigation District does contain, is in lieu of mileage as well as the per diems, for the reason that the accusation herein charges the collection of moneys on the representation that it was for mileage and that it was not in fact for mileage. It also charges the collection of compensation *746
over and above the salary therein allowed, and to which petitioner was not entitled. The allegations, therefore, do not relate solely to mileage, but they do charge that Rose collected from the district moneys to which he was not in any way entitled and that the said moneys were by him appropriated to his own use.[8] Petitioner argues seriously and refers to many sections of the code wherein the word "fees" is used to describe fees which may be collected by a public official for services rendered by that official to the public, but we do not think that it was intended that the word "fees" as used in section 772 of the Penal Code should be limited by any such definition. At least one of the purposes of the section is to assure the public that their officials shall not be permitted to mulct them by improper or illegal charges. [9] And as was pointed out in People v.Lips,
[10] Petitioner has cited two cases from Idaho, Hudson v.Bertsch, 38 Idaho, 52 [220 P. 109], and Daniels v.Wrighton, 38 Idaho, 55 [220 P. 110], apparently growing out of one situation, which seem to hold that items of actual expense should not be classified as fees. It should be noted, however, that the items in the first case were included by mistake without suggestion of a wilful attempt to overcharge, and in the other case $12 was collected as the actual expense of a trip to take possession of a gambling machine, and that for some reason not clearly shown the prosecution was dropped. In neither of these cases is there suggested a wilful attempt to overcharge or burden the public. They are therefore to be distinguished from the allegations here made. There are direct allegations in the petition that the moneys claimed and collected by Rose were not to cover any proper expenses laid out by him, but that they were so named only for the purpose of giving them the appearance of regularity. It cannot be argued from the allegations that the claims were for reimbursement. We think the correct rule is enunciated in Rankin v. Jauman, 4 Idaho, 394 [39 P. 1111];State v. Richardson,
[11] It cannot be persuasively argued that the legislature intended to make the collection of fees from the public an offense for which the official might be removed and at the same time say that moneys collected illegally from the public, by passing through the channels of the taxing power, should not. It is the wrong of burdening the public with charges with which they should not be burdened that constitutes the offense. An examination of the civil action, County of Los Angeles v.Cline,
[12] Petitioner's next contention is that a director of an irrigation district is a state officer and not a district officer, and being such, the Superior Court has no jurisdiction to entertain the accusation under section 772 of the Penal Code, which provision reads as follows, to wit: "When an accusation in writing, verified by the oath of any person, is presented to a superior 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 accusation was presented, and on that day, or some subsequent day not more than twenty days from that on which the accusation was presented, must proceed to hear, in a summary manner, the accusation, and evidence offered in support of the same, *748
and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer, and such costs as are allowed in civil cases." He relies upon Kilburn v. Law,
Petitioner attaches much importance to the statement found in the opinion in In re Madera Irr. Dist.,
In re Madera Irr. Dist., supra, is authority, however, for the proposition that officers of the irrigation district are public officers or officials. And as such we are constrained to hold to be within the contemplation of section 18, article IV, of the constitution, designating the legislature as the body to provide ways and means for the removal of those officers not liable to impeachment as that word is ordinarily understood. They are charged with the discharge of public duties for the general welfare of a particular district. Or as stated in Coulter v.Pool,
[13, 14] Petitioner also questions the jurisdiction of the court on the ground that section 73 of the California Irrigation District Act provides the only offenses for which the directors of an irrigation district may be removed, and being exclusive in its nature, section 772 of the Penal Code cannot apply. The material portion of section 73 of the California Irrigation District Act reads: "for any wilful violation of any express duty herein provided for, on the part of any officer herein named, he shall be liable upon his official bond, and be subject to removal from office, by proceedings brought in the superior court of the county wherein the office of the *751
board of directors of the district is located, by any assessment payer of the district; . . ." It will be noted that section 73 uses the words "wilful violation of any express duty herein provided for." We see nothing herein to indicate that the "wilful violation of any express duty" provided for in the act itself is to be the only offense for which the official should be removed. It is a familiar rule of statutory construction that where there are two provisions relating to the same subject matter they must, if possible, be construed so as to maintain the integrity of both. (Bateman v. Colgan,
The peremptory writ is denied.
Works, P.J., concurred.
Dissenting Opinion
I dissent, mainly because in my opinion, officers of an irrigation district are not subject to a proceeding of this nature.
A petition for a rehearing of this cause was denied by the district court of appeal on February 19, 1927. *752