State ex rel. Barker v. Meek

Weaver, J. The defendant being the duly elected and acting treasurer of Van Burén County, this action was brought upon the complaint of certain citizens of .said county to remove him from office. The proceeding was instituted under Code, section 1251, which provides that any county officer may be removed for “willful misconduct or maladministration in office.” The action thus provided for is one at law and triable to a jury. The petition of the plaintiffs charged many alleged acts of misconduct and maladministration, but, upon the hearing, they were all dismissed by the trial court as having no support in the evidence except the one specification hereinafter more particularly stated, and upon this specification a verdict of guilty was directed by the court and judgment of removal entered. From this judgment the defendant appeals. The allegation of willful misconduct in office which is relied upon to sustain the action of the trial court is based upon the. fact that after the close of the semiannual taxpaying period ending September 30, 1907, the appellant continued for several days to accept payment of taxes Avithout exacting or collecting the penalty which the statute imposes. On the trial the appellant freely admitted that from September 30th to noon of October 8th of the year above mentioned he did receive the taxes of all such taxpayers as appeared for that purpose, (and receipted for the same as if paid on the former date. Viewing this admission as de — 673 — cisive of the- case, tlie court excluded all evidence tending to show good faith and absence of evil motive on appellant’s part, and peremptorily directed a verdict of guilty, but suspended execution of the order of removal pending an appeal to this court. r. Counties: removal of officers: willful misconduct: good faith of officer: evidence: submission of issue. The sole question presented is whether the acts thus freely admitted constitute “willful misconduct in office” within the meaning of the statute. What is the meaning of “willful misconduct” as that phrase is here employed ? Manifestly it is not applicable to every case of misconduct, nor to every mistake, or .every departure from the strict letter of the law defining the officer’s duties, but only to willful wrongs or omissions on his part. The word “willful,” like most other words in our language, is of somewhat varied signification according to its context and the nature of the subject under discussion or treatment. Frequently it is used as nearly or quite synonymous with “voluntary” or “intentional,” and evidently this is the interpretation given it by the trial court in the case before us. But when employed in statutes, especially in statutes of a penal character, it is held with but few exceptions to imply an evil or corrupt motive or intent. In State v. Willing, 129 Iowa, 12, this court has said: “Every voluntary act of a human being is intentional, but, generally speaking, a voluntary act becomes willful in law only when it involves some degree of conscious wrong or evil purpose upon part of the actor, or at least an inexcusable carelessness on his part whether the act be right or wrong.” So, also, the New York court: “The word ‘willful’ in a statute means something more than a voluntary act, and more also than an intentional act when it is in fact wrongful. It includes the idea of an act intentionally done with a wrongful purpose or with a design to injure another or one committed out of mere wantonness or lawlessness.” Wass v. Stephens, 128 — 674 — N. Y. 123 (28 N. E. 21). Speaking for the Supreme Court of Wisconsin, Chief Justice Dixon thus states the rule: “While the word ‘willful’ is sometimes so reduced or modified as to mean little more than plain ‘intentionally’ or ‘designedly,’ such is not its ordinary signification when used in criminal law and penal statutes. It is there most frequently understood, not in so mild a sense, but as conveying the idea of legal malice in a greater or less degree; that is as implying an evil intent without justifiable excuse.” State v. Preston, 34 Wis. 675. The eminent Chief Justice Shaw puts it in these words: “ ‘Willful’ as used in statutes means not merely voluntary, but with a bad purpose.” Commonwealth v. Kneeland, 20 Pick. (Mass.) 220. “Willful disobedience” has been defined as “something more than a conscious failure to obey. It involves a wrongful or perverse disposition.” Shaver v. Ingham, 58 Mich. 654 (26 N. W. 162, 55 Am. Rep. 712). Conduct may be voluntary, thoughtless, or even reckless, yet not necessarily willful. Harrison v. State, 37 Ala. 154. Nor does unlawfulness necessarily imply willfulness. Wass v. Stephens, supra; Yeamans v. Nichols (City Ct. N. Y.) 81 N. Y. Supp. 500. A statute of the United States regulating the business^ of distilling spirits provides a penalty for willful omission or neglect to observe the provisions of the revenue law. In Felton v. United States, 96 U. S. 699 (24 L. Ed. 875), a civil, action was begun against Eelton to recover the prescribed penalty. On the trial he requested the court to charge the jury that, if the acts charged were done in good faith, he was not liable upon the charge preferred. This request was refused, and the jury was told that, if the accused had designedly done the prohibited act, he was guilty as charged. On appeal this instruction was held erroneous. Chief Justice Puller, delivering the opinion, says: “Doing or omitting to do a thing knowingly and willfully implies, not only knowledge of the thing, but a determination with a bad intent to — 675 — do it or to omit doing it. . . . All punitive legislation contemplates some relation between guilt and punishment. To inflict the latter where the former does not exist would shock the sense of justice of' everyone.” In Evans v. United States, 153 U. S. 584 (14 Sup. Ct. 934, 38 L. Ed. 830), construing a statute against the willful misapplication of the bank funds, the court says: “The allegation of the intent to defraud becomes material in the highest degree. In fact, the gravamen of the offense consists in the evil design with which the misapplication is made.” The case of Potter v. United States, 155 U. S. 438 (15 Sup. Ct. 144, 39 L. Ed. 214), has reference to a statute forbidding the certification of a check by any national bank where the drawer has no funds on deposit with which to pay it. The defendant being charged with a willful violation of this act, the fact of the alleged certification for a person not having the required deposit was admitted, and, when the accused offered to prove facts tending to show that the act was done in good faith and without evil intent, the testimony was excluded. This ruling was held erroneous, and the judgment against the bank officer reversed. Speaking of the effect and meaning of the word “willful” in the statute, the court says it is not mere surplusage.. ,“It means something. It implies on the part of the officer knowledge and a purpose to do wrong. Something more is required than an act of certification made in excess of the actual deposit, but in ignorance of that fact, or without any purpose to evade or disobey the mandates of the law.” In a similar case — Spurr v. United States, 174 U. S. 728 (19 Sup. Ct. 812, 43 L. Ed. 1150) — -these holdings were again approved and followed; the court saying: “While it is true that care must be taken not to weaken the wholesome provisions’ of the statutes designed to protect depositors and stockholders against the wrongdoings of banking officials; it is of equal importance that they should not be so construed as to make transactions — 676 — of such officials, carried on with the utmost honesty and in the sincere belief that no wrong was being done, criminal offenses, and subjecting them to severe punishments which may be imposed under those statutes. The wrongful intent is the essence of the crime.” Indeed, the authorities upholding this view are too numerous to mention, and we take' time to quote from leading cases thereon only because of the grossly unjust results which would follow our establishment of a precedent to the contrary. True, there are exceptional cases where the courts have held willfulness to be established by proof of the voluntary character of the act, but such of these cases as are not explainable from the peculiar circumstances under discussion or the peculiar language of the statute there being construed are opposed to the overwhelming weight of authority. Thus far we have considered the use of the word “willful” in statutes of a penal character generally. Let us see now how the word is construed by the courts with reference to official misconduct. A statute of New York provides that a person who having served as an executive or administrative officer willfully exercises any of the function of his office after his right to do so has ceased, or willfully intrudes himself into an office to which he has not been duly elected, incurs a penalty as for a misdemeanor. A defendant being prosecuted under this act, the trial court charged the jury that, if defendant intended to do what he did do, then his act was willful within the meaning of the law, and this was held erroneous, in that “willfully” in the statute means more than voluntarily or intentionally- — -“it includes the idea of an act intentionally done with a wrongful purpose, or with design to injure another, or one committed out of mere wantonness or lawlessness.” People v. Bates, 79 Hun, 584 (29 N. Y. Supp. 894). Hnder a Missouri statute providing a penalty for willful wrongs done under color of office, a justice of the peace was indicted, tried, and convicted. On — 677 — appeal the conviction was set aside, the court saying that the word “willful” must be restricted to such acts as are done with evil intent and without reasonable grounds to believe that the act was lawful. State v. Grassle, 74 Mo. App. 316. In Geddes v. Township, 46 Mich. 316 (9 N. W. 431), the Michigan court denied the appeal of a school director from an order removing.him from office for alleged misconduct; it appearing that the director offered no evidence in defense or in explanation of his conduct which was such as “might be regarded as willful and proceeding from some motive beyond a desire to do his duty.” In Triplett v. Munter, 50 Cal. 644, action was brought to remove an officer for charging and collecting illegal fees, and the court there says the statute in question is highly penal in character, and, though it does not in terms require that the wrongful act must have been' knowingly and corruptly, done, it must be held that it is not intended to visit such result upon the officer unless the act was willful or corrupt. In Smith v. Ling, 68 Cal. 324 (9 Pac. 171), a petition for the removal of an officer is held fatally defective if it fails to allege that the unlawful act' charged was knowingly, willfully, and corruptly done. In State v. Alcorn, 78 Tex. 387 (14 S. W. 663), it was sought to remove a county officer for willful violation of duty, and the court, refusing to enforce the forfeiture, says: “We are of the opinion that under the statute an act done or omitted can not be said to have been willful unless the officer believed it was his duty to do or omit the act and with such knowledge or belief obstinately,' perversely, and, with intent to do wrong, acted or failed to act. . . „ The statute is one penal in character, and must be construed as though it were one defining a crime and prescribing its punishment. If respondent violated an official duty whether it resulted from a willful act or not, he would be responsible to any person injured thereby, for the intent with which the act — 678 — was accompanied would not be a matter of inquiry, but, when it is sought to remove him on account of official misconduct, animus becomes an important inquiry.” In State v. Scates, 43 Kan. 330 (23 Pac. 479), an action to remove an officer, the decision concludes: “As a majority of the court do not find that any of the acts done by Scates were done corruptly, judgment will be rendered in his favor.” In a similar proceeding in Louisiana a like conclusion was reached on the express ground that: “No corrupt motive is imputed in connection with these acts, and, at best, they do not show such neglect or inefficiency as to authorize the deprivation of his office.” State v. Bourgeois, 47 La. Ann. 184 (16 South. 665), and same case in 45 La. Ann. 1350 (14 South. 28). In Idaho it was held that, although the acts charged were illegal, yet the officer “acted honestly and without intent to defraud the county,” and was not therefore liable to removal. Ponting v. Isaman, 7 Idaho, 581 (65 Pac. 434). In State v. Hoglan, 64 Ohio St. 532 (60 N. E. 627), the defendant, a city officer sought to be removed, justified his action under a certain statute, and the court ruled that, although his construction was wrong and fie had failed to perform the duty required of him, he was not necessarily removable on that account, saying: “Such errors frequently arise in the performance of their duties by public officers, and it has not hitherto been regarded as an evidence of such incompetency as to require that they should be removed.” Speaking of the general nature and effect of a statute permitting the removal of a public officer, the New York Court of Appeals, while conceding the necessity of prompt and drastic action “in cases of established inefficiency or corruption,” also say: “The public interests do not require action which shall be unjust to a worthy officer or which will unfairly besmirch a good character.” State v. Sullivan, 58 Ohio St. 504 (51 N. E. 50, 65 Am. St. Rep. 781). Approaching the subject from still another angle, the — 679 — Michigan court has said: “The right to hold this office is just as sacred in the eyes of the law to Metevier (the accused) as the right to hold the property he has earned. It is a property right, and one of which he can be divested only by a strict conformity to the statute. . . . The people of the county have rights also as well as the accused. They have the right under the Constitution to elect their county officers and have such officers serve out the terms for which they were elected. It was not contemplated by the Constitution that such officers should be removed but for grave reasons.” People v. Therrien, 80 Mich. 187 (45 N. W. 80). We have not sought to trace this line of adjudication through all the states, but we have followed it far enough to show that the clear trend of the cases is opposed to the position taken by the trial court, and that, when willfulness is charged as a ground for removing an officer from his office, his good faith and innocence of intentional wrong is a question upon which he is entitled to be heard In evidence, and that the truth of such charge is for the jury, and not for arbitrary disposition by the court. The only case cited and the only one developed by the research of counsel which seems to hold that the court may peremptorily order a verdict of guilty in such cases is Skeen v. Paine, 32 Utah, 295 (90 Pac. 440). In that state the statute provides that, upon being found guilty of charging and collecting illegal fees, the court must enter judgment removing the accused officer from his position. Pev. St. Utah,' 1898, section 4580. The statute does not provide that the illegal exaction must be willful to justify the conviction. The defendant in the cited case was a member of a city council whose legal compensation was limited to $240 per year, but, acting with other members, he charged and received greatly increased compensation for official services. Upon the admitted facts, the court upheld a directed verdict against him. Without — 680 — discussing the merits of such' holding as a matter of principle, the difference in the statutes being enforced is sufficient to distinguish this' authority from those we have before cited. It has no bearing whatever upon the proper interpretation of the word “willful” as employed in the present instance. If it be admitted, as argued, that the primary purpose of the statute is the protection of public interests, it may well be said that those interests are not imperiled by acts of a trifling or unimportant character occasioning no injury against which the personal responsibility and official bond of the incumbent do not afford undoubted security. Such peril arises only when his administration of the office is marked by such grave misconduct or stich flagrant incompetency as demonstrates his unfitness for the position. That this is the controlling idea of the statute we ourselves have decided. In State v. Welsh, 109 Iowa, 21 (79 N. W. 369), speaking by Ladd, J., we said: “The very object of this statute is to rid the community of a corrupt, incapable, or unworthy official.” From this exposition of the legislative intent we are not inclined to depart. “The object designed to be reached by a statute must limit and control the literal import of the terms and phrases employed.” State v. Clark, 29 N. J. Law, 99; 1 Kent’s Comm. 462; Commonwealth v. Kimball, 24 Pick. (Mass.) 370 (35 Am. Dec. 326); United States v. Fisher, 2 Cranch, 358 (2 L. Ed. 304). And see Cushing v. Winterest, 144 Iowa, 260; lately decided by us. Such being the law, let us revert as briefly as may be to the facts to which it is to be here applied. In the discharge of his official duties the defendant was allowed the assistance of a single deputy. This limited force, however sufficient it may have been to perform the ordinary work of the office, was wholly insufficient to attend each day to the increased applications to pay taxes which marked the close of the semiannual tax-paying period provided for by statute. The appellant’s -duty in collecting taxes was — 681 — not confined to the simple receiving of the money due. He was required to issue formal and specific receipts to each individual, to register these receipts in books kept for that pxirpose, to distribute each payment among the numerous funds to which it belonged, and make accurate and detailed entries thereof in the records and accounts of the office, and, so far as possible, to make each day’s record a complete and distinct history of that day’s business. "When, therefore, on September 30, 1907, the closing day for the payment of the annual tax without added penalty, the office was deluged with hundreds of demands for tax receipts, it was manifestly impossible for appellant and his deputy to meet these demands, receive the taxes, issue the receipts, and complete the record thereof in one short day. As a matter of fact, working with all reasonable diligence and working overtime, they did not succeed in closing the books for September until about noon of October 8th, during which interval, following the usage and custom of the office established long prior to his incumbency, and believing he could rightfully do so, appellant treated the last day of September as still continuing, and, until the accounts for that month were complete, accepted taxes without penalty from such taxpayers as applied to make payment, and receipted for the same under date of September 30th. There was no corrupt agreement of any kind between him and any of these taxpayers. He received no profit from these transactions, and, indeed, it • does not appear that any of the persons paying taxes during this interval made any demand or request concerning the penalties, but he, following, as he offered to show, the practical construction which had been placed upon his statutory duties in the conduct of the office for a period of thirty years, treated the official day of September 30th as closing with the closing of that day’s accounts. There is not in the record the slightest suggestion of evil motive op his part. If — 682 — his act was a mistake, the uncollected penalties aggregated at most an insignificant sum, against the loss of which the county was protected by a bond of $100,000. No other charge of wrongdoing is supported by any evidence. There is no suggestion that appellant is not in every way competent to fill the office and discharge its duties with efficiency. So far as this case reveals, his personal character stands unimpeached, and his official record is without stain of corruption. To say that such an officer is to be removed in disgrace from the office to which he has been elected by the county in order to vindicate a law, the object of which is as we have said to “rid the community of corrupt, incapable, and unworthy officials,” is to sanction a shocking injustice. To so hold is to put it in the power of any envious or maliciously inclined person to endanger the incumbency and heap undeserved reproach upon the most capable and conscientious officer in the public service. It is not given to any man to be absolutely perfect in the discharge of all duty. There is no man in official position so letter perfect in the law that he does not at some point by act or omission or misconstruction of the law, though with perfect integrity of motive, fall short of the strict .statutory measure of his official duty. That such technical violations against which an ordinary civil action in ^damages affords a complete remedy should be classed as impeachable offenses calling for the removal of an officer is intolerable. Our statute books are full of provisions requiring county, city, and township officers to do certain acts at or within a specified time. For instance, the clerk of the district court must report the criminal statistics of his county to the Secretary of State on the first Monday in November in each year. Suppose the clerk to be so delayed by the pressure of other official work that his report is not filed until a day or two after that date has passed, is he guilty of willful misconduct in office? The county auditor is required to make report of — 683 — certain expenses to the clerk of the district court on October 15th of each year. Suppose that, acting in good faith, he fails to present his report until October 16th, and when he appears for that purpose the clerk says to him, “I have not yet closed my books and accounts of yesterday’s business, and will file your report as of that date,” and, this being done without any wrongful motive and in the belief that they could rightfully do so, are they both chargeable with willful misconduct? Or if, an assessor in the honest, but mistaken, belief that certain property is not taxable, omits it from his roll, is he therefore and as a matter of law subject to removal from his office.? Nor is the force of this illustration avoided by the contention that such statutes are directory only while the statute adding penalties to delinquent taxes is mandatory. To decree that a statute is directory gives no license for its willful violation, and, if a county treasurer is to be «conclusively held guilty of a willful violation of duty subjecting him to a removal from office for every voluntary act or omission for which we may find no warrant in the statute, no matter how clear his honesty of purpose or how manifest his competency for the position, or how perfectly the public is protected against injury or loss by his technical error, then there is no place or point to draw the line in the administration of any office short of absolutely perfect observance of the statute, not merely as it apparently reads, but as the court in its wisdom, or lack of it, may construe it to read. If the contention of appellee is right, the appellant’s acceptance of a single payment of taxes without added penalty after the close of the calendar day of September 30th was an impeachable offense. According to this rigid standard of duty, bad appellant and his' deputy in their zeal to serve the waiting crowd kept the treasurer’s office open until after midnight of that day, every tax so accepted after the stioke of twelve was a willful violation of law calling for his ignominious, expulsion — 684 — from his' position. In our judgment the law calls for no such injustice. The extension of the business or official day beyond the calendar day is a practice of ancient and by no means disreputable origin, and it is not necessarily unlawful, or, if unlawful, it is not necessarily willful. The essential inquiry is whether the record shows the appellant conclusively and as a matter of law guilty of such willful misconduct in office that public interests require his removal. In our opinion no such showing has been made. The willfulness of the act, if wrongful, was a question of fact which the court could not rightfully withdraw from the jury. 2. Same. Another feature of the ease demands our notice. Originally it seems to have been the theory of the lawmakers that each property owner would appear in person at the treasurer’s office, and there make payment of his taxes in actual cash. See Code, section 1403. It is not too much to say that literal compliance with this provision if ever practicable has for many years ceased to be so. But a small percentage of the people appear in person to pay their taxes, and a very large proportion do not pay in cash, but by check or other recognized substitutes for legal tender currency. Every county has scattered within its borders cities, towns, and hamlets in each of which one or more banks serve as mediums through which payments are made to the county treasurer. Each bank is supplied or supplies itself with a list of the taxes due from the people of its neighborhood,, and serves its customers by receiving their payments and ordering the proper receipts from the treasurer. Naturally the average taxpayer postpones payment till the close of the period is at hand, and the treasurer then finds himself required to deal not only with a flood of applications made directly to him at his office, but with a still greater quantity which come to him by mail,' telephone, or telegraph from the banks. Where the orders come in within the proper time, if they — 685 — are from banks with whose responsibility the treasurer is satisfied, he accepts the payment*as if made to him in person, even though there be a delay of a day or a few days in completing the actual transmission of the money from the vaults of the bank to the vaults of the treasury. To condemn this long-settled practice as willful misconduct is to brand practically every county treasurer in Iowa as subject to removal from office. We do not suggest for a moment that the treasurer by this use of the banks relieves himself from the strictest personal responsibility for every dollar of such taxes, but we do insist that, while holding him to such rigid liability, he should be left free to conduct the business of his office according to convenient, modern, and improved methods without exposing himself to impeachment for willful or corrupt maladministration. A new trial must be ordered, and the judgment appealed from is therefore reversed.