109 N.W. 1026 | N.D. | 1906
This is a summary action brought for the removal of three of the county commissioners of Ward county on an accusation presented by J. W. Fabrick, a person residing in that county. The accusation as filed and served consisted of 38 paragraphs, containing various charges against three of the commissioners. On January 9, 1906, the defendants filed an answer in which they
Article 17 of the accusation stated, in substance, that the defendants unlawfully and corruptly approved and allowed a claim of the Minot Optic against said county of Ward in the sum of $389.87, for 200 calendars, “and afterwards rescinded this action, and allowed the bill at $150, whereas in fact and in truth, the real value of said calendars was not more than the sum of $65, all of which -the said defendants well knew.” To bring article 17 within the class of accusations to be presented by a person under section 9646, Rev. Codes 1905, it is necessary to state facts, showing, not a malfeasance in office, but the charge and collection of illegal fees, a neglect of duty, or that the official has rendered himself incompetent. The facts in this article do not show it to come within either, but the facts alleged do tend to show misfeasance and malfeasance in office, and for either of those charges the accusation must be presented by a grand jury, and should have been stricken out, and the finding of the defendants guilty thereunder was erroneous. Article 25 contained no statement that the alleged illegal fees charged had been collected, and for that reason is insufficient, and does not come within section 9646, and was improperly presented, and the order and judgment, finding the defendants guilty under this article was erroneous. See sections 9632 and 9646, Rev. Codes 1905.
Our legislature has enacted the manner (section 9632, Rev. Codes 1905) in which officials, not included in section 196 of the constitution, should be removed for malfeasance in office. It necessarily follows that articles 17 and 25 should have been stricken from the accusation for the reason that they were not presented by a grand jury. Section 9632, Rev. Codes 1905, provides: “An accusation in writing against any district, county, township, city or municipal officer, or state officer not liable to impeachment except representatives in congress and members of the legislative assembly, for misconduct, malfeasance, crime or misdemeanor in office, or for habitual drunkenness or gross incompetency, may be presented by the grand jury to the district court of the county in or for which the officer accused is elected or appointed. * * *”
To come within the class of removals, which may be initiated by any person, article 26 must come under one or the other of the following three causes set out in section 9646, Rev. Codes 1905, viz: That an officer within the jurisdiction of the court has been guilty of (1) charging and collecting illegal fees for services rendered in his office, or (2) has refused or neglected to perform the official duties pertaining to his office, or (3) has rendered himself incompetent to perform his said duties by reason of (a) habitual drunkenness, or (b)'other cause. This article of the accusation read in its entirety comes within the first subdivision of section 9646 above. “When an accusation in writing and veri
The second objection raised by the appellants to the accusation, “That the facts set forth therein * . * * are insufficient,” etc., is without foundation. While article 26 of the accusation is not drawn with great skill, it sufficiently states the alleged facts and circumstances to apprise the defendants of the allegations made against them. Two bills, not itemized, were contained in full in the article, the concluding part of the article specifically pointed out various alleged illegal “charges and collections” made by the defendants, the excessive per diem and mileage, the excessive time charged for, and could not but apprise a person of ordinary understanding what he must prepare to defend. Two cases are relied upon by the appellants to sustain their position that the accusation does not contain facts sufficient to constitute ground for removal from office. State v. Friars (Wash.) 39 Pac. 104, does not apply because therein it was charged that excessive charges were made for 82 days’ service in 1893, and that said days were not necessary in dispatching the business. There is no specific months or dates or time when it was claimed the time charged for was excessive and there is a failure to specify the actual number of days necessary to transact the county business. Smith v. Ellis (Idaho) 6 Pac. 695, does not apply to the facts in this action because in that case neither the dates or months were given in which the alleged illegal charges were made. As sustaining the accusation on the matter of sufficiency, see, Woods v. Varnum (Cal.) 24 Pac. 843; Rankin v. Jauman (Idaho) 36 Pac. 502; Trigg v. State, 49 Tex. 645; 17 Enc. Pl. & Pr. 219. The accusation alleged that the appellants charged and collected illegal fees and the evidence shows that month after month, the appellants in making and presenting their bills, charged, audited, allowed, and collected per diem and mileage for one day coming to the commissioners’ meetings or one day going home from the meetings, or both. That such a charge and collection was made for each month from January .to November, 1905, inclusive, was pleaded, proven, and stands admitted by appellants.
The questions of law arising in this action having been disposed of, we are now to inquire whether the evidence on the part of the state was sufficient upon which to warrant a conviction. The
The charge and collection of excessive fees for “care of poor” appears only once and then on the part of appellant Carroll. It constituted ground of removal as to him. Under the testimony, for some of the months bills were presented, audited, and allowed and collections made by defendants for per diem to themselves in excess of the number of days in the month. As in the bill set out above, the charge and collection was made for 19 days from “Apr. 18 to 29,” whereas, under our law, there could be but 12 days during that time, counting both the first and last days. The charge and collection was illegal, and is ground for removal from office. It was contended by counsel for appellants that the judgment was insufficient and defective and void because it failed to assign the
The order and judgment of removal of the appellants from the office of county commissioner of Ward county, N. D., upon the grounds specified in and the proofs under article 26 of the accusation, is affirmed. The clerk of the court below, in taxing the costs for printing of respondent’s brief, will deduct the cost of printing 28 pages thereof, for the reason that that number of pages of printed matter contained in the abstract were unnecessarily reprinted therein.