Skeen v. Chambers, 86 P. 492

86 P. 492 | Utah | 1906

MoOAETY, J.y

after making the foregoing statements of tbe case, delivered the opinion of tbe court.

With tbe exception of tbe transaction involving tbe $50 first mentioned in tbe foregoing statement of tbe ease, tbe issues of fact presented by tbe complaint in this case are tbe same as tbe issues which were involved in tbe case of Skeen v. Craig (decided at tbe present term of this court), 86 Pac. 487, which case, in tbe* order of business, immediately precedes tbe one under consideration. Tbe matters involved in tbe two suits-, with the exception of tbe $50 referred to, grew out of and were, connected with tbe same transactions', and tbe charging and collecting of tbe $50 from tbe city by defendant raises no question of law that was not presented and decided in tbe case of Skeen v. Craig. Tbe plaintiff in that case, who is also plaintiff in tbe case at bar, introduced practically tbe same evidence in both cases. Tbe same defense is interposed in this case as was made in the case of Skeen v. Craig. Therefore, with the exception of two questions presented on'this appeal, which were neither raised nor determined in the case of Skeen v. Craig, that ease is decisive of this.

At tire outset counsel for the defendant challenged the constitutionality of the section (4580) of the statute under which the action was commenced on the ground that, while said section provides for the taxing of costs against the defendant in case he shall be adjudged guilty and removed from office, there is no provision therein made for the recovery of costs by defendant in case he shall be successful in the action. When the case came on for trial defendant interposed an objection to the introduction of any evidence on the ground of the alleged unconstitutionality of said section, which objection tire court overruled. No further or other objection was made to the statute, nor was its validity otherwise called in question. In fact, so far as shown by the record, no- costs were taxed against defendant or cost bill filed in the case. The concluding part of section 4580 is as follows:

“And if, on such hearing, it shall appear by the verdict of the jury that the charge is sustained, the court must enter judgment that the party accused be deprived of his office, and for such costs as are allowed in civil cases.”

Section 26, art. 6, of the Constitution provides, so far as material here, that:

“The Legislature is prohibited from enacting any private or special laws in the following cases: . . . (18) In all cases where a general law can be applicable, no special law shall be enacted.”

It is claimed that that part of section 4580 which wé have italicized is in conflict with the foregoing provision of the Constitution. The question, however, is not raised and presented in such a way as to enable this court to* pass upon the validity of-that specific part of section 4580 relating to costs. Defendant’s objection to the introduction of any evidence1 and the assignment of error to the court’s; ruling thereon calls; in question the validity of tbe entire section. Even though it were conceded that the provision relating to costs is void, a question which under the assignment of error we are not called upon to determine, it would not necessarily follow that the balance of the section is a nullity. That part of section 4580 which directs how and under what circumstances an action of this kind shall be commenced and conducted is in no sense dependent upon or interwoven with the part relating to costs. Therefore, whatever view we might take respecting the validity of that part of the section providing for the taxation of costs, it would not in any way effect the remainder of the section. (Sutherland, Stat. Const. [2 Ed.], 296.)

The court instructed the jury in part as follows: “The court charges you that the prosecution in this ease must not only prove beyond a reasonable doubt that the defendant charged and collected illegal fees, butyoumust also be satisfied by the evidence beyond a reasonable doubt that he charged such illegal fees willfully, knowingly, and corruptly.” The court then proceeded to'define the term “knowingly” in the language of the statute (Rev. St. 1898, section 4053, subd. 5), which is as follows: “The term ‘knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the Code. It does not require any knowledge of the unlawfulness of the act or omission.” The defendant excepted to that part of the instructions which was given in the language of the statute. There is absolutely no merit whatever in the assignment of error predicated upon this objection, for the authorities uniformly hold that, when a statute defines an offense, word or term, it is not error for the court to instruct the jury respecting such offense, word, or term in the language of the statute. (11 Ency Pl. & Pr., 205; Duncan v. People, 134 Ill. 110, 24 N. E. 765; Long v. State, 23 Neb. 33, 36 N. W. 310; People v. Biddlecome, 3 Utah 208, 2 Pac. 194.) In fact, it is too plain to admit of discussion that it would be palpable and inexcusable error for a court, in its instructions, to a jury respecting a word or term defined by statute, to give such word or term a different meaning or application than that expressed by the statute itself, especially where, as in. this case, the language as well as the .meaning of the statute is intelligible, definite, and free from ambiguity.

There are other errors alleged; but, as the questions raised by them were considered and passed upon by this court in the case of Skeen v. Craig, supra, we deem it unnecessary to> again refer to them, as that case, .in the main, is decisive of this.

We find no reversible error in the record. Judgment is affirmed. The costs of this appeal to be taxed against appellant.

BARTCH, C. J., and STRAUP, J., concur.