Archbold v. Huntington , 34 Idaho 558 ( 1921 )

LEE, J. —

This was a summary proceeding commenced by respondents, complainants below, citizens of Custer county, Idaho, for the removal of appellant W. K. Huntington from the office of sheriff of said county, under the provisions of C. S., sec. 8684, and to recover the statutory penalty therein prescribed.

The amended complaint alleges that W. K. Huntington was the duly elected, qualified and acting sheriff of said county, and that while so acting he arrested complainants upon a warrant of arrest issued by the probate court of said county and took them to Challis, the county seat, and immediately lodged them in the county jail, where he kept them from about 3 o’clock in the afternoon of November 5, 1918, until 11 o’clock of the following day; that he denied their request to be taken before said probate court or any magistrate, as required by C. S., sees. 8919 and 8920, and refused to permit them to consult with their attorney, or to give them an opportunity to be informed of the charge against them, or to give bail for their appearance; and that they were responsible persons and citizens of said county, and were able and willing to give bail for their appearance before any court at any time or place that might be required.

The information further charges that thereafter appellant refused to obey a writ of habeas corpus issued by the judge of the sixth judicial district, which commanded the said sheriff to immediately release said complainants, and that at a later date he attended upon a public highway an unlawful assembly that had congregated for the purpose of delaying and stopping the judge of said court and other officials, including a representative of the United States Department of Justice, and failed, neglected and refused to disperse the said assembly, after having been directed so to do by the said judge.

To this information appellant demurred generally, and specially upon the grounds that several causes of action had been improperly united, that the information was barred by C. S., secs. 8670 and 8671, and' that it was ambiguous, unintelligible and uncertain in numerous particulars pointed out, and he also moved for a separation of the several causes of action. The demurrer and motion were overruled as to the first, second, third and fifth grounds, and sustained as to the others, the court holding that there was not a misjoinder of parties or causes of action, that it was not barred by C. S., secs. 8670 and 8671, and that the information stated a cause of action, and also denied the motion for segregation.

Appellant then answered in confession and avoidance, admitting the arrest of complainants and that he had placed them in jail, but pleaded by way of justification that there was at this time a quarantine regulation, established by the county board of health, which prohibited all persons from entering or passing through any portion of said county within the designated quarantine district, and that said arrest and detention was by virtue of a warrant placed in his hands for execution, issued upon an information filed in said court, charging a violation of said quarantine regulation.

Upon trial had before the court, it found against appellant upon the charge relating to the arrest and detention of the complainants, and for him upon the charges relating to his refusal to obey the writ of habeas corpus and to disperse the unlawful assembly. Conclusions of law were that appellant should be deprived of his office as sheriff of said county, and that informants should have judgment against him for the sum of $500 and the costs of this action. Judgment to this effect was entered therein as of January 11, 1919, two days before the expiration of appellant’s term of office. From this judgment he appeals.

It will not be necessary to consider seriatim each of the several specifications of error relied upon by appellant for a reversal of this judgment. They relate to errors of the trial court in overruling appellant’s demurrer, to denying his motion to segregate the several causes of action, in finding that all of the wrongful acts had been done wilfully, knowingly and intentionally, in removing him from office and entering judgment in favor of informants in the sum of $500 and costs, to certain alleged errors in admitting opinion evidence, in striking from the record all evidence pertaining to the minutes of the Custer County board of health relating to the quarantine regulation, and to the refusal of appellant’s offer to prove the establishment of a quarantine by the said board of health; and appellant challenges the validity of C. S., sec. 8684, under which these proceedings were had.

Proceedings under this section are in the nature of quo warranto proceedings, and are quasi criminal. (Daugherty v. Nagel, 27 Ida. 511, 149 Pac. 729.) That is, a proceeding under 'this statute in some respects resembles a criminal action, but being only quasi criminal negatives the idea of identity. (Bouvier’s Law Dictionary, 2780.) They are not criminal proceedings, and are not intended as a punishment for crime. (Rankin v. Jauman, 4 Ida. 53, 36 Pac. 502; Hays v. Simmons, 6 Ida. 651, 59 Pac. 182.) Therefore, the provisions of C. S., sec. 8829, which require that an indictment or .information shall charge but one offense, which may be set forth in different forms under different counts, do not relate to a proceeding for the removal of a public officer under this statute, and Territory v. Guthrie, 2 Ida. 432, 17 Pac. 39, and State v. Gruber, 19 Ida. 692, 115 Pac. 1, relied upon by appellant in support of his contention, have no application to an information of this kind.

The information charges that appellant refused and neglected to perform his official duty with respect to three distinct and separate acts: First, that he placed informants in the Custer county jail without taking them before the probate court that issued the warrant, or any other, and refused to allow them an opportunity to give bail or to see their attorney; secondly, that he refused to release them upon a writ of habeas corpus issued by the district court; and, thirdly, that he neglected and refused to disperse an unlawful assembly. Appellant complains of this, and claims that it is a commingling of several causes of action. These three distinct acts complained of might have been stated as separate causes of action, but an information under this statute does not require that each several act complained of be stated as a separate cause of action, provided that each is stated in a distinct and independent division, so that it can be answered or demurred to without confusion. (Pomeroy’s Code Remedies, 4th ed., sec. 336.) In this ease the several acts are stated in separate paragraphs. Nor is it necessary, where the acts complained of affect a number of individuals in the same manner, that they must each severally file a separate information. Appellant cannot be prejudiced by a single judgment of ouster and penalty of $500 prescribed by the statute because the several complainants joined in said action and recovered a single judgment. The trial court found for the defendant upon the second and third accusations of the complaint, inaccurately termed “counts” in the findings, so that these charges were in effect surplusage.

The, statute specifies two grounds for the removal of a public officer: First, where he is guilty of charging and collecting illegal fees for services rendered or to be rendered in his office; secondly, where he has refused or neglected to perform official duties pertaining to his office. (Corker v. Pence, 12 Ida. 152, 85 Pac. 388; McRoberts v. Hoar, 28 Ida. 163, 152 Pac. 1046.) The information should state the specific acts of omission or commission for which such removal is sought, with clearness and certainty. (Smith v. Ellis, 7 Ida. 196, 61 Pac. 695.)

Appellant contends that before he could be ousted and penalized as provided by this statute, it must be shown that he wilfully, knowingly and intentionally failed to perform an official duty; that is, that he corruptly refused to perform such duty. This provision of our statute was taken from the California code by the code commission of 1887, being It. S., sec. 7459, and the courts of this state have uniformly held, following the decisions of that court, that the refusal or neglect to perform an official act must be done knowingly, wilfully and intentionally, but that this statute should be distinguished from the proceedings authorized under C. S., sec. 8670, which applies to cases of misfeasance in office, as distinguished from nonfeasance, which is intended to be denounced by the section under consideration. Accusations under C. S., sec. 8670, must be commenced by the prosecuting attorney or by an indictment found by a grand jury, while accusations under this section may be commenced by any informant. (Daugherty v. Nagel, supra; Corker v. Cowen, 30 Ida. 213, 164 Pac. 85.)

It is not necessary, however, as appellant contends, for the complainants, in an action charging an officer with refusing and neglecting to perform an official duty, to show an evil or corrupt motive. Wilfully, as used in this information, is used in the same sense in which it is defined in C. S., sec. 8074, subd. 1; that is, when applied to the intent with which an act is done or omitted, it implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, in the sense of having an evil or corrupt motive or intent. It does imply a conscious wrong, and may be distinguished from an act maliciously or corruptly done in that it does not necessarily imply an evil mind, but is more nearly synonymous with “intentionally,” “designedly,” “without lawful excuse,” and therefore not accidental. (Bouvier’s Law Dictionary, 3454; Miller v. State, 9 Okl. Cr. 55, 130 Pac. 813.) When this information is construed in this sense, we think the evidence fully supports the findings of the court.

Without attempting to review all of the evidence, it appears that two of the county commissioners, one being a physician, and he with the other members having at some former time designated himself as county health officer, made some effort or took some steps toward establishing a quarantine district, to prevent the introduction of a communicable disease known as Spanish influenza, and thereby attempted to prohibit all persons from entering such quarantine district, unless first detained in quarantine for such time as said health officer should determine was necessary.

We do not understand that counsel for appellant contend that the proceedings taken were sufficient to establish a quarantine district. At any rate, it is clear from the record that a quarantine district was not established. The complaint upon which the warrant of arrest was issued charged respondents with the crime of having wilfully violated quarantine regulations, and the warrant issued thereon commanded appellant to forthwith arrest respondents and bring them before the probate court that issued the same, or before some other magistrate. This warrant of arrest was regular in form, and issued by a court of competent jurisdiction, and was sufficient to protect appellant in its due execution, if he had complied with its requirements. He arrested complainants with sufficient promptness, but according to his own testimony, as well as his return to '-the warrant, he failed and neglected to take them before the said probate court or any magistrate, as the writ commanded him to do. On direct examination he testified:

Q. And was it the county jail you put them in? A. It was. Q. What reason had you for putting them in the county jail rather than any other place? A. No other place for them. Q. What was your purpose when you arrested these men? (After objection and ruling.) A. Well, I put them there to hold them until their quarantine period was up, because Sunday afternoon Dr. Kirtley came out of town six miles where I was and said a bunch had run the quarantine — ”

Again, counsel asked:

“Q. How did you happen to liberate them, what was the reason for their liberation? A. They asked me how long they would have to stay, and I told them they would have to stay there between three and four days — that was my understanding from the doctor — frbm the time they went through the quarantine line, and I left it to them to virtually figure up the time they went in, and they told me, and I counted it up, and I said, ‘Well, it would be some time to-morrow.’ Q. Well, explain the circumstances of their liberation. What was the cause of your liberating them? A. The doctor turned them loose — out of quarantine. He said they could go.”

In his return to the warrant of arrest, after naming the complainants, he states that he “placed the above named in quarantine this fifth day of December, 1918.”

In his answer, he alleges with reference to his action under this warrant of arrest that the informants attempted to violate such quarantine regulations, as did also the judge of the district court, by attempting to enter the said quarantine district without submitting themselves to the requirements and rules of said county board of health; that the said county board of health at a meeting lawfully called prior to the commission of any of the acts set forth and described in the amended information, had duly determined upon said quarantine, had adopted rules and regulations of the state board of health, and had otherwise fully met the requirements of the law as provided in chapter 140 of the Session Laws of 1913, state of Idaho; that the acts of this defendant were in all respects in accordance with the requirements of said law as carried out by the said county board of health of said county of Custer; and that the said informants were placed in the county jail of said county of Custer for a certain length of time for the reason that there was no other suitable place in Challis or within the said quarantine district within which they could be suitably and properly confined until it should first be ascertained whether they were afflicted with said contagious and infectious disease, all of which said acts were done in conformity to the rules and regulations of .said county board of health of said county of Custer; and that in no respect has this defendant violated any of the laws of the state, or failed, refused and neglected to perform his duties as the sheriff of said county of Custer, within any of the times set forth and described in said amended information, or otherwise; that at all times mentioned in said amended information, and while said informants were in the care and custody of this defendant, he endeavored to meet their requests and wants with reference to their having communication with their attorney as far as possible without violating any of the provisions and regulations of said established quarantine, and was ever willing to take said informants before the probate court of said county of Custer and to permit said informants to go wherever they pleased, after being detained and quarantined the length of time required by the rules and regulations made by said county board of health, and established in said county of Custer.

The complainant Swauger testified, and his testimony is not controverted, in answer to the questions as follows:

“Q. Please detail any conversation you had with the sheriff at that time, either you had yourself or other members of the party had with the sheriff in your presence and hearing. A. Yes, sir; I asked Mr. Huntington, I says, ‘We would like to talk to our attorneys. ’ He says, ‘You can’t talk to nobody.’ Then I says, ‘Huntington, I demand we be taken before a judge.’ He says, ‘You will be taken no place. You will be taken to jail. You will be taken to the jail.’ That is the words he used, ‘You will be taken to jail.’ Q. State whether or not in that conversation, Mr. Swauger, there was reference, either by yourself or any other member of the party, or by the sheriff, with reference to bail? A. I asked him for bail, too, for the whole bunch. When I got out of the car, I says, ‘Mr. Huntington, can we give bail?’ He says, ‘No, sir.’ I asked him, I says, ‘can we be taken before the judge?’ He says, ‘No, sir.’ I demanded that we be taken, and he says, ‘No, sir,’ and then I asked him if we could talk to Chase Clark, and he says, ‘No, sir; you can’t talk to nobody, you will be taken to jail.’ ”

It is therefore apparent that appellant failed and neglected to obey the directions contained in the warrant, which commanded him to forthwith arrest the complainants and bring them before the probate court at his office in Cliallis, or in ease of the absence or inability of said court to act, then to take them before the nearest and most accessible magistrate. It may be that appellant and Dr. Kirtley, the county health board officer, acted under a mistaken notion that it was within their authority to arrest and place in jail all persons who entered this pretended quarantine district, but however this may be, it cannot be urged even as an extenuating circumstance, much less as a defense, on behalf of appellant. He was a court officer of long experience, and had taken complainants into custody by virtue of a warrant issued by a court of competent jurisdiction, commanding him to take said complainants forthwith before such court. They demanded that this be done, and he contumaciously refused to obey the order of the court, but acting either upon his own volition or upon the direction of the said health officer, placed these parties in jail for what he or the' health officer determined was the proper quarantine period for which they should be held, and it appears from the record that the district judge, a federal official and other court officers, whose official duties required them to go into this so-called quarantine district, narrowly escaped being placed in jail by appellant, acting at the behest of this health officer. Manifestly, ministerial officers cannot usurp the functions of courts in this manner, and escape the consequences of their wrongful acts. Appellant’s placing the complainants in jail without taking them before the court or a magistrate was a wilful aud intentional neglect to perform an official duty pertaining to his office, for which he should be ousted therefrom and penalized as provided by said statute.

The last assignment relied upon by appellant charges that this section of the statute is unconstitutional, on the ground that it was never adopted or passed by the legislature in the manner required by the constitution, that is, by bill introduced in the legislature, and he cites in support of his contention, among other eases, those of Lewis v. Dunne, 134 Cal. 291, 86 Am. St. 257, 66 Pac. 478, 55 L. R. A. 833, and note; Daugherty v. Nagel, supra; Libby v. Pelham, 30 Ida. 614, 166 Pac. 575; and article 3, sec. 16 of the constitution. Appellant challenges the constitutionality of this statute on the ground that it was incorporated into the revision known as the Eevised Statutes of 1887 by the code commission, and claims that it was never lawfully enacted by the legislature. The question of whether or not a complete revision and compilation of all or any considerable portion of the statute law of a state can be lawfully enacted by the adoption of a complete revision, under the limitations in this provision of the constitution cited, is not before us for determination. California, in the well-considered case of Lewis v. Dunne, supra, holds that a constitutional provision providing that every act shall embrace but one subject, which subject shall be expressed in the title, is an inhibition against the adoption of an entire code as a single bill, and the great weight of authority in the states having a similar provision in their organic law supports this view. But this provision was placed in the revision of 1887 by the code commission, and adopted by the territorial legislature when its power to enact laws was not restricted by any limitation other than that placed upon it by the Congress and federal constitution, and all laws that were in force at the time of the adoption of our constitution, and which were not repugnant thereto, were continued in force by that instrument, until they expired by their own limitation or were altered or repealed by the legislature. (Article 21, sec. 2.) Therefore, the constitutional limitation found in article 3, secs. 15 and 16, providing that no law shall embrace more than one subject, which subject shall be embraced in the title, has no application to the manner in which C. S., see. 8684, became a part of our statute law.

We find no error in the record, and the judgment of the court below is affirmed, with costs to respondents.

Rice, C. J., and Dunn, J., concur.