221 P. 139 | Idaho | 1923
— This is one of three summary actions commenced by respondent under C. S., sec. 8684, to remove from office appellants, who are commissioners of the Camas-Monteview Highway District, in Jefferson county, and to recover the statutory penalty. The actions were consolidated for the purposes of trial, and a separate judgment was rendered against each commissioner, from which they severally appeal. By agreement, the testimony taken in the cause as above entitled is deemed to apply to all of the defendants, and judgment in the other cases shall abide the decision on this appeal.
The information charges appellant, as one of the commissioners' of this highway district, with having wilfully, knowingly and intentionally failed, neglected and refused to perform an official duty pertaining to his office, in that: (1) he did not require the Bank of Roberts, a banking
A trial was had to the court, which resulted in a judgment removing appellant from office, and that the informant should recover $500, as provided by the statute. From this judgment this appeal is taken.
The specifications relate only to the alleged error of the court in finding that the board of highway commissioners wilfully, knowingly and intentionally failed, neglected and refused to obtain a depository bond from the banks in which they deposited the funds of the district, to fix a rate of interest to be paid on such deposits, or to appoint a treasurer at the first meeting.
C. S., 8684, which provides 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
It appears that this highway district came into existence in April, 1921, the organization meeting being held on the 28th of that month. At that meeting the commissioners, after due discussion, adopted a resolution making the Bank of Roberts the depository for the district, on condition that a satisfactory agreement could be made with this bank. The commissioners all testify, and in this they are corroborated by the witness J. C. Stoneburner, secretary of the district, and W. A. Davis, the cashier of the bank, that the directors of the bank declined to go to the trouble or expense of giving an indemnity bond or surety of any kind, for the reason that the account was a very small one, rarely if ever exceeding $1,000, and during most of the time being only a few dollars, which was subject to check. An inspection of the state of this account, as disclosed by the balance sheets of the two depository banks, shows that the first deposit was not made until August 31st following the organization of the district, on which day a little more than $2,000 was deposited in the Bank of Roberts, and on the same day checked down to about $800. Occasionally thereafter small deposits would be made to this account, but the checks drawn against it were frequent, and in such amounts as to keep it down to a nominal sum practically all of the time, with the exception of a few days after a deposit had been made, and until the cheeks drawn against the account were received by the bank:. At about the time of the commencement of these proceedings, the district had a balance of $2.95.
From an inspection of the balance sheets it is apparent why any banking institution would not consider the account of sufficient value to warrant it in either giving an indemnity bond for its protection or paying interest on the daily balances.
It appears that the district, when created, contemplated a bond issue of approximately $50,000, to meet corresponding amounts to be furnished by the state and government in certain projected road building. But the proposal to issue
It appeal’s that these commissioners were somewhat persistent in their efforts to secure some bank in that locality that would act as the district’s depository and furnish indemnity and pay interest on the district’s balances. It is equally clear that after the bond election failed, and it was apparent that the district would not have sufficient funds with which to carry on its operations, but only such small amounts as might be received from time to time as the district’s proportion of money obtained from the collection of taxes, the district would in effect, for practical purposes, cease to function as a going concern, and that the amount of funds in its hands at any one time would be so small that the account would be an undesirable one with any banking institution.
This provision of the statute, like all others, must be construed with regard to the purpose for which it was enacted. It is a summary proceeding, which deprives the official informed against of the right to a jury trial. Under the repeated holdings of this and other courts, it is not required that the officer informed against shall be guilty of refusing or neglecting to perform an official duty in the sense of having an evil or corrupt motive in so doing, but it implies a conscious wrong, as distinguished from an act maliciously or
Ch. 256, Laws 1921, p. 557, was in force during all of the time after this district had any funds to deposit. Sec. 24 of that act seems to contemplate that it is impracticable, if not impossible, to follow the provisions of the depository law where the amount of funds for deposit is small, and this section arbitrarily fixes $1,000 as the amount a depositing unit, such as this district, must have in order to come within the provisions of this act. Said sec. 24 of the depository law among other things provides that except where the funds of a depositing unit are less than $1,000, they shall be kept on deposit subject to the provisions of the law in designated depositories, but makes it lawful for the treasurer of a depositing unit having less than $1,000, with the approval of the supervising board, to make a special deposit with any bank or depository that will accept the funds under such conditions, and which will charge the least amount for the service of keeping the funds on special deposit. The legislature in enacting this proviso which excepts small deposits of this character from the general provisions of the act, does so recognizing the inability of taxing units to find any banking institution that will accept small accounts of $1,000 or less under the general provisions of the public depository law.
A careful examination of the record fails to disclose that any one of these three commissioners wilfully, knowingly and intentionally failed, neglected or refused to perform his official duties as commissioner, in the sense contemplated by the statute. As said in the concurring opinion in Walton v. Channel, supra:
“Not every infraction or departure from the strict letter of the law will subject an officer to removal under this statute, for the law does not concern itself with trifles, nor does it require a degree of efficiency or exactness in the performance of official jluties that cannot be reasonably complied with in the exercise of ordinary care and diligence.”
Since the bringing of this action the legislature (ch. 97, Laws 1923, p. 121) has amended C. S., see. 8684, by adding the words “knowingly, wilfully and corruptly or in had faith, refused or neglected to perform the official duties pertaining to his office, etc.,” and provided that the penalty of $500 shall be paid into the school fund, so that the informer may now recover only his costs. Without commenting upon the wisdom of this change in a statute that has been in force without change in this state for more than thirty-five years, and remains the law in California after having been in force more than fifty years, we are constrained to say that if the construction and application contended for by respondent in this case was to be given to the law, its harshness would be so oppressive that a modification would be inevitable.
However, in following the construction that has been given to it in a large number of cases in this and adjoining states, particularly in the more recent cases of Archhold v. Huntington, 34 Ida. 558, 201 Pac. 1041, and Walton v. Channel, supra, upon which eases respondent appears to rely, we think the application of this law to a given state of facts will only result in a removal from office and the imposition of the pen
The cause is reversed and remanded, with directions to vacate the judgment of the court below and dismiss the proceedings. Costs awarded to appellant.