Siebe v. Superior Court, 46 P. 456

Siebe v. Superior Court

46 P. 456

Cal.

1895

Check Treatment

The Court.

The petitioner herein was elected to the office of assessor for the city and county of San Francisco at the general election in 1894, аnd qualified for said office in the succeeding January, and has since actеd as such assessor. Prior to the first day of July, 1895, as such assessor, he assessed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the рroperty of the Market Street Railway Company, a corporation organized under the laws of this state, and having property in said city and county, for the fiscal year ending July 1, 1895, at the sum of three million eight hundred and eighty-three thousand eight hundred and sixty-*552six dollars. On the 11th of May, 1896, an accusation in writing against him was presented to the superior court of San Francisco, alleging that the value ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the property of said corporation at the time of such assessment was seventeen million five hundred thousand dollars, and that the petitioner, “for the purpоse and with the design of enabling said Market Street Railway Company to evadе taxation for the fiscal year ending July 1, 1895, upon the full cash value of said prоperty, willfully and knowingly failed and neglected to and did not assess the said proрerty of said Market Street Railway Company for the purpose of taxation for said fiscal year at its full cash value, but with said object and purpose then and there assessed the same at the value of but three million eight hundred and eighty-three thousand eight hundred and sixty-six dollars, and that no other, further, or additional аssessment of said property for said fiscal year was made.” Thereupon the superior court appointed the eighteenth day of May, 1896, as the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍time at which it would hear the said accusation and the evidence offered in support of the same, and directed a citation to be issued to the petitioner to appear at that time. On that day he appearеd before the court and objected to its jurisdiction to hear or act upon the said accusation, and requested the court to dismiss the same. The сourt, however, denied his request, and set the matter down for hearing on the next day. Upon tlie application of the petitioner, an alternative writ of prohibition was issued out of this court, directing the respondents to show causе why they should not refrain from further proceedings upon the said accusation. The return to the writ is in the nature of a demurrer to the application.

Seсtion 772 of the Penal Code authorizes the superior court to entertain аn accusation made under oath by a private citizen against an officer within its jurisdiction, charging ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍him with having collected illegal fees, or with having refused or neglected to perform the official duties pertaining to his office, and, unlеss the accusation *553charges the officer with a violation of his official duty in respect to one or other of these particulars, the court hаs no jurisdiction in the matter. In the present case, the petitioner was not аccused of having neglected or refused to assess the property оf the Market Street Railway Company, for it is alleged in the accusation that he did assess it at a given amount, but that this amount was less than its actual value, and thаt such assessment was made “for the purpose and with the design of enabling said Mаrket Street Railway Company to evade taxation for the fiscal yeаr commencing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍July 1, 1895.” If the assessment was made with such purpose, it was not a “refusal or neglect” to perform his official duties, but a “willful and corrupt misconduct in оffice,” for which he might have been accused by the grand jury, under the provisions оf section 758 of the Penal Code. If, on the other hand, the assessment was made in the ordinary exercise of his official duty, and without any corrupt or illegal mоtive, his act, though pertaining to the executive department of the government, was of a judicial nature, for which he is not amenable to the penal laws of the state. (See Clunie v, Siebe, 112 Cal. 593.)

It is ordered that a peremptory writ issue as prayed for.

Beatty, 0. J., did not participate in the foregoing decision.