Collman v. Wanamaker

SULLIVAN, C. J. — This proceeding was instituted under the provisions of sec. 7459, Rev. Codes, by filing a verified information in the district court, containing eighteen causes of action, charging the defendant, as a member of the board of trustees of the village of Hope, in the first seventeen thereof, with having illegally contracted with and sold to the said village of Hope certain merchandise of different kinds, and procured the board of trustees of said village to allow .and pay his claims for the merchandise so sold. It is also charged in said information that at all times when such transactions occurred, the defendant was a member and chairman of the board of trustees of said village. In the eighteenth cause of action the defendant is charged with neglect and refusal to perform his official duties as a member and chairman of the board of trustees of said village, in that he participated in the allowance of said claims presented by him and voted for the allowance thereof as a member of said board, and as chairman of said board signed the warrants -of said village, payable to his own order. All of said transactions except that mentioned in the seventeenth cause of action occurred during the terms of office of said defendant that had already expired when this proceeding was brought, but the transactions set forth in the seventeenth cause of action occurred during the defendant’s present term of office. A demurrer was interposed to each cause of action set forth in said information on a number of grounds, which — 346 — demurrer was sustained by the trial court on all of the grounds stated in the demurrer except as to the ground of uncertainty. The plaintiff elected to stand upon his information and judgment of dismissal was thereupon entered on the 19th day of January, 1914. This appeal is from said judgment. In limine, we are met with a motion to dismiss the appeal on the ground that the appellant failed to comply with the provisions of rules 45, 48 and 82 of this court, in that he did not serve his brief within fifteen days after the filing of the transcript and did not serve same until the 14th of November, 1914. It appears from the record that the transcript in this case was filed on April 6, 1914, and no showing has been made that the time for serving the brief had been extended. Yet regardless of those facts, we are inclined to and do overrule the motion to dismiss since there are questions of a public nature involved in this case. However, the rules of this court are made for the guidance of attorneys, and the court expects them to comply with those rules in all matters. If an attorney requires more time than the rules allow for serving his brief, he must make application for an extension of time, under the rules, and thus proceed in an orderly way in the matter. The court expects attorneys to comply with the rules established by it, and in case they fail to do so, they jeopardize their clients’ interests. The rules are made to be obeyed, not to be ignored and set at naught at the option of the attorney. Counsel for appellant assign as error the action of the court in sustaining defendant’s demurrer to each of said causes of action and rendering judgment of dismissal. The grounds of demurrer are substantially as follows: 1. That the facts stated are not sufficient to constitute a cause of action. 2. That the action is barred by the provisions of secs. 4054 and 4055, Rev. Codes. — 347 — 3. That the acts complained of were committed prior to the beginning of the present term of office of the defendant, except as to the facts stated in the 17th cause of action. 4. Uncertainty in the allegations. 5. That the court had no jurisdiction of the person of the defendant or the subject of the action. 6. That in each cause of action there has been improperly united two separate and distinct causes of action, to wit: (1) The charging and receiving of illegal fees; (2) failure and neglect in the performance of official duties. We will first consider the sufficiency of the allegations of the information to constitute a cause of action. Said sec. 7459, Rev. Codes, is as follows: “When an information in writing, verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging or 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 information was presented, and On that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for five hundred dollars m favor of the informer, and such costs as are allowed in civil cases. ’ ’ The provisions of said section are highly penal in their nature and will not be extended to contain acts or omissions that do not come clearly within them. There are only two things for which an action to remove a defendant can be prosecuted under the provisions of said section, to wit: (1) The charging and collecting of illegal fees for services ren — 348 — dered or to be rendered in his office; (2) refusing or neglecting to perform official duties pertaining to his office. And the penalty prescribed is deprivation of office and judgment of $500 in favor of the informer, and costs. It was held by this court in Corker v. Pence, 12 Ida. 152, 85 Pac. 388, under the provisions of said section, that no proceedings can be maintained against an officer for any other kind of misconduct in office than the two kinds mentioned in said section. The defendant is charged with selling to the village of Hope certain merchandise and receiving pay therefor from the village, and it is contended that this is receiving and collecting illegal fees. The word “fees,” as used in said act, means a charge for services. “Fee,” as defined by Webster, is a reward for services performed or to be performed, especially for personal services. The term “fees” is used to designate the sums prescribed by law as charges for services rendered by public officers. (3 Words & Phrases, p. 2713.) The language of said section is, “has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office.” The “fees” referred to in said section are for services rendered or to be rendered, and not for merchandise sold to the municipality of which the person charged was an officer. Clearly, the illegal selling of property to a municipality is not the 1 ‘ collection of an illegal fee ’ ’ as contemplated by the provisions of said section. In Robinson v. Huffaker, 23 Ida. 173, 129 Pac. 334, this court held that certain contracts entered into by a county commissioner with his county were void under the statute. The evidence in that case discloses conduct on the part of the defendant strictly within the provisions of sec. 7459, and in addition thereto the sale of a book-press to the county, and the court evidently inadvertently fell into an error by holding that the sale of said book-press was the collection of an illegal fee. The court there cites sec. '255, Rev. Codes, which prohibits members of the legislature, state, county, city, district and precinct officers from being interested in any contract made by them in their official capacity, or by any body — 349 — or board of which they are members, with their municipality, and holds that the contract for the purchase of the book-press came within the provisions of the statute, it being the property of the defendant and he being a county commissioner. The court also cites secs. 1946 and 1956, Rev. Codes, which prohibit county officers from presenting any claim, except for services, against the county, and holds that the purchase of. and the payment for, said book-press was prohibited under the provisions of said sections. While the sale of said book-press was in violation of the statute, it clearly was not the “collection of an illegal fee for services rendered or to be rendered” by such officer. In Law v. Smith, 34 Utah, 394, 98 Pac. 300, the supreme court of Utah had under consideration the claim of a sheriff, consisting of charges for railway fare and hotel expenses in taking convicts to the penitentiary, and said: “Appellant further contends that, if respondent was not guilty under this section, he was guilty under section 4580, which, in substance, provides that when ‘ any officer .... has been guilty of knowingly, wilfully and corruptly charging and collecting illegal fees for services rendered or to be rendered in his office,’ and that this constitutes a cause for removal from office. It seems to us that the proof as above outlined does not bring respondent’s case within the provisions of sec. 4580. The items of expense set out in the charge cannot be construed as a charge for illegal fees for services rendered. The respondent made no claim for any services, but the claim was one for money paid out and expended by him in the discharge of an official duty, for which the law provided neither fees nor compensation other than the salary provided for him by sec. 2057, Comp. Laws 1907, and he did not attempt to make a charge for services by presenting the claim either against the state or Cache county.” (See, also, as touching upon this question, Skeen v. Paine, 32 Utah, 295, 90 Pac. 440; Crossman v. Lesher, 97 Cal. 382, 32 Pac. 449.) So in the case at bar, the claims of defendant presented against the village were not for fees for services, but for merchandise sold to the village. — 350 — We therefore hold that the sale of merchandise by a municipal officer to his municipality is not the ‘ ‘ collection of illegal fees for services rendered or to be rendered by such officer.” It is next contended that the defendant has refused or neglected to perform the official duties pertaining to his office, in that he allowed said claims against his municipality and collected the same. The question presented is, do the acts there charged show that he has refused or neglected to perform any official duty pertaining to his office? He is there charged with doing certain acts, not with a refusal or neglect to perform some official duty pertaining to his office. It was held in People v. Burnside, 3 Lans. (N. Y.) 74, that where a statute provided for the removal of certain officers in the event they should refuse or wilfully neglect to perform the duties of their office, the words should be construed to mean nonfeasance only, and it was held that an order removing them for misfeasance based on this provision of the act was improper, and the court said: “The wilful neglect and refusal upon which the order was based was, that the commissioners had done an act in violation of their duty, and had been guilty of misfeasance in office, and was not upon the ground of a refusal to perform, or a wilful nonfeasance. . . .' . In order to make out a case within the provisions of the section cited, there must be an absolute refusal or a wilful neglect to perform some duty imposed by the act. The statute evidently was not intended to punish the commissioners for positive acts done by them in violation of law, but for contumacy, in refusing to obey the mandate of the law, and for wilfully and unlawfully neglecting to do what was required by the plain terms and import of the statute.” It is not charged in the information, in the ease at bar, that the defendant failed or neglected to perform an official duty, but it is charged that he did act and allow illegal claims, hence the charge does not come within the purview of said section, since it must be charged that the officer neglected or refused to perform certain of his official duties, naming them. It was held by this court in Corker v. Pence, 12 Ida. 152, — 351 — 85 Pac. 388, that proceedings for the removal of officers for all other wilful or corrupt misconduct, aside from the two mentioned in said see. 7459, are provided for by see. 7445 et seq., Rev. Codes; that the provisions of said sections of the statute were intended to meet all classes of misconduct except the two mentioned in said see. 7459. The village in this case has its remedy against its officers who violated the law in making contracts with it. We therefore conclude that the selling of merchandise by a municipal officer to his municipality and collecting pay therefor by allowing such claims against the city, and having warrants issued in payment of such claims, is not such misconduct as comes within the provisions of said sec. 7459, and that the judgment of the district court must be affirmed. As this is decisive of this appeal, it will not be necessary for us to determine any other questions presented on this appeal. Costs awarded to respondent. Budge and Morgan, JJ., concur.