Daugherty v. Nagel

SULLIVAN, C. J. — This proceeding was brought for the summary removal of the defendant, who was a member of the board of county commissioners of Bonner county, under the provisions of sec. 7459, Rev. Codes, on the ground that the defendant was guilty of charging and collecting illegal fees for services rendered or to be rendered in his said office, and has refused and neglected to perform the official duties pertaining to his office. A demurrer to the information was interposed and was sustained as to the first cause of action and overruled as to the second cause stated in the information. The trial court proceeded to try said matter and at the close of plaintiff’s testimony granted a motion for a nonsuit and a judgment of dismissal was entered and a motion for a new trial was denied. The appeal is from the judgment and from the order denying the new trial. A motion to dismiss the appeal has been filed by the respondent on the ground and for the reason that the respondent has ceased to be a county commissioner of Bonner county by the expiration of his term of office, and that the question of his removal has thus become a moot question and that the district court has not and would not have jurisdiction to enter judgment of removal in case the appeal should be determined in favor of the appellant. In limine, we will state that the information in this ease was filed on the 10th of March, 1914, and the judgment of the district court was entered on the 21st of May, 1914, and the appeal was taken on the 14th of August, 1914, and the [514] cause should have been heard at the December, 1914, term of this court, but on account of the congested condition of the business of the court, it was unable to hear it at that time and the case was continued to the May, 1915, term. Defendant’s term of office did not expire until the second Monday of January, 1915, hence the entire proceedings in said matter had been had and the appeal perfected before the defendant’s term of office had expired. Said sec. 7459 is found in our Revised Statutes of 1887, and it is there indicated that it is a new section added by the code commission who compiled the Revised Statutes of 1887. That section was taken from the California Codes and is substantially the same as section 772 of the Penal Code of that state and was enacted by the legislature of that state on February 14, 1872. Counsel for respondent cites a number of California cases in support of his motion to dismiss the appeal, one of which is Smith v. Ling, 68 Cal. 324, 9 Pac. 171. In that ease the information was filed and the proceedings begun after the defendant had ceased to be an officeholder, and it is distinguishable from the case at bar in that the case at bar was begun and the appeal perfected before the term of office of the defendant had expired. In that case it is also held that the fine is but a sequence of the paramount object of the statute, namely, the removal from office of the incumbent. The same may be said of In re Stow, 98 Cal. 587, 33 Pac. 490, where it was held that the proceedings must be instituted while the accused is still in office and not after the term has expired. In Wheeler v. Donnell, 110 Cal. 655, 43 Pac. 1, the court held that the main purpose of the act is to secure the removal of the officer guilty of unlawful conduct and the money judgment provided for is purely incidental to that purpose. Counsel also cites many authorities to the effect that the court will not entertain an appeal after a change in circumstances which leaves only a moot question for decision. The ease of Albright v. Territory (N. M.), 79 Pac. 719, involved quo wurranto proceedings to try title to the office of [515] assessor of one of the counties of New Mexico and was taken by writ of error to the supreme court of the then territory, and a motion was interposed for the dismissal of the writ of error upon the ground that the term of office of the respondent had expired and that there was then nothing upon which the judgment of the court in case of a reversal could operate. The opinion is quite exhaustive and reviews many authorities and it is stated therein as follows: “From a very early date it has been held that at common law the cessation of the usurpation before judgment did not terminate the proceeding.....‘So, where a statute gives the prevailing party in proceedings upon a quo loarranto information the right to costs absolutely, the court will give judgment of ouster, notwithstanding the information is entirely fruitless, the term of office having long since expired. [Citing People v. Loomis, 8 Wend. (N. Y.) 396, 24 Am. Dec. 33.] And the fact that the respondent’s term of office has expired pending the proceedings will not prevent judgment of ouster against him.’ [Citing Hammer v. State, 44 N. J. L. 667; High on Extraordinary Legal Remedies, § 754.] We have examined the cases cited in the text just quoted, and we find that they, and, indeed, generally speaking, the best considered American eases, all hold that the expiration of the term constitutes no reason for dismissal.....In Hunter v. Chandler, 45 Mo. 452, it is said: ‘Information in the nature of quo warranto to try the right to a public office may be tried after the term has expired, or the officer holding has resigned, if the information was filed or proceedings begun before the resignation took place or the term has expired. ’ .... In the case of Commonwealth v. Smith, 45 Pa. St. 60, it is said by the court, through Mr. Justice Woodward: ‘ I have no doubt that quo warranto, brought within the term of an office, may be well tried after the term has expired. ’ ’ ’ If the position taken by respondent in this case be correct, as held in the Albright case, “it would be within the power of the usurper of an office, by resignation pending the suit, to evade all liability, or by dilatory tactics and by availing himself of the law’s delays, to prolong the duration of almost [516] every suit of this kind beyond the term of office involved, and thus to come free of costs, fine or damages, however flagrant may have been his usurpation. The possibilities of this result are more than remote when it is recalled that many terms of office are only one or two years in duration, and that, in the ordinary administration of justice, it often takes fully that length of time to secure from the court of final resort a decision upon the merits of the controversy. We do not believe it to be the law that a litigant can thus speculate upon the chances of a trial of his case, and, by delaying the hearing of the cause a sufficient length of time, accomplish a result which could never be obtained by a trial upon the merits.” While the Albright case is a quo' warranto proceeding, the rule there laid down in regard to the question under consideration is certainly applicable to this class of cases, and clearly shows why a case of this nature should not abate by reason of the resignation of the officer or the expiration of his term pending the hearing on appeal. Statutory proceedings under sec. 7459 are somewhat in the nature of quo warranto and are quasi criminal. The question involved is also one of public interest, and if an officer against whom proceedings are brought under the provisions of sec. 7459, Rev. Codes, should be ever so guilty of charging and collecting illegal fees for services rendered, or ever so derelict in his refusal or neglect to perform the official duties pertaining to his office, and could defeat or abate a proceeding brought against him, it would be too much of an inducement for such an officer to resign or delay the proceedings until his term of office had expired in order to avoid the penalty provided under sec. 7459. We therefore conclude that the motion to dismiss the appeal must be denied, and it is so ordered. Costs to follow decision of case on its merits. Budge and Morgan, JJ., concur.