This is a proceeding of ouster, brought under C. S., sec. 8684, to remove appellant D.F. Clark from the office of trustee of independent school district No. 1, which includes the city of Twin Falls, and to recover the $500 penalty provided for by the statute.
The charging part of the information is "that the defendant has neglected and refused to perform the official duties pertaining to the office held by him in that the board of trustees of said school district including the defendant neglected and refused," etc.; and then follow thirty-eight counts, each enumerating specific acts of neglect of official duty as such member of the board of trustees of this district.
A general and special demurrer was interposed to the information, the general demurrer being that neither of said counts stated a cause of action, and upon the demurrer being overruled, defendant, respondent herein, answered, denying specifically the allegations in the several counts. The action was tried to the court and it made findings of fact and conclusions of law to the effect that appellant had refused and neglected his official duty, as charged in a number of the counts, and that appellant should be removed from office and pay respondent, the informer, $500, the penalty fixed by the statute.
The same charges were made against W.W. Parish and G.W. Bice, who were also members of the same school board during the same time, and a like judgment was rendered against each of them. By stipulation the actions were consolidated for the purpose of trial in the court below and only one hearing was had. After judgment the parties severally moved for a new trial, which was denied, and all the parties to the record agreed that the actions should be consolidated for the purpose of an appeal from the judgment and also from the order denying appellants' respective motions for a new trial.
The record on appeal from the judgment was not filed in this court within the time required by law. Appellants make a showing that such delay was due to an understanding *Page 97 with counsel for respondent that the appeal might be delayed, awaiting the judgment of this court in the case of Walton v.Channel et al., 34 Idaho 532, 204 P. 661; on rehearing,34 Idaho 544, 204 P. 665. It appears from this showing that appellants failed to pursue with due diligence the perfecting of their record on appeal from the judgment below and having the same transmitted to this court within the time required by law, and there being nothing in the record that indicates counsel for respondent in any manner misled them into a belief that the delay would be excused, under frequent holdings of this court, the appeal from the judgment should be dismissed and the cause considered only upon the appeal from the order denying appellants a new trial.
The only assignment which it is necessary to consider is "that the decision of the court is against law." It will be observed that the charge against appellants is that they, as individuals, each severally "neglected and refused to perform the official duties pertaining to the office held by him in that the board of trustees of such school district, including the defendant, neglected and refused," etc., to perform the official acts enumerated in the 38 counts attempted to be charged in the information.
Each of these omissions to act complained of relates to official acts that could only be performed by the board of trustees acting as an official corporate entity. Not a single act or omission charged could have been performed by any one of these appellants acting individually or in concert with each other, unless they were joined in such action by the remaining three members of this official board. Therefore, this record presents the question, can a member of an official board, consisting of six members, be charged with having refused or neglected to perform an official duty pertaining to his office, where the refusal or neglect pertains to an act or acts that can only be done by the board of which he is a member, unless the information contains some appropriate allegation which shows, or tends to show, that such member was derelict in his duty in such manner, or in *Page 98 some way that contributed to the failure of the board to take the official action required? It cannot be contended that any one or more members of an official board of this character can be guilty of violating the provisions of C. S., sec. 8684, and thereby be subject to removal from office and the penalty of $500, unless he has in some manner contributed to the neglect or refusal of the official body of which he is a member to perform the official duties of such board.
In the instant case only three of the six members of the board are charged with a refusal and neglect of duty. But it is plain that they cannot be guilty of a dereliction of duty unless they in some manner have contributed to the failure of the board to act. If the charge, as in the Channel case,supra, was against all the members constituting the board, it would state at least a prima facie case. I do not think that the penalty prescribed by this section of the statute can be evaded by an individual member of an official board, because such official action requires a majority of its number, or of a legal quorum of such board to act, and where all the members are properly charged with such failure or neglect, it may constitute a sufficient charge against each of them severally. But where less than a legal majority are charged for the failure of the board, in order to state a cause of action against such member, or any one, or all, who may have been ready and willing to act but could not do so by reason of not having any power to act, the information, in order to state a cause of action, should allege facts tending to show that the refusal and neglect of such members prevented or tended to prevent the board from acting, and in the absence of such allegation the information fails to state a cause of action.
While proceedings under this statute are of a civil character, in the nature of quo warranto, to remove from office those who neglect to perform their official duty, it is termed a quasi-penal statute, and is summary in its operation. The right of a jury trial being denied, it is, in effect, an impeachment of an official, for it removes him from *Page 99 office and penalizes him in the sum mentioned by the statute. While it is not required to show that the official acted with an evil or corrupt intent, it is necessary that the act done or omitted to be done was intentionally, designedly and without lawful excuse. (Archbold v. Huntington, 34 Idaho 558,201 P. 1041.) As was said in Walton v. Channel, supra, this statute is penal in its nature, and should be strictly construed.
In State v. Kennedy, 82 Kan. 373, 108 P. 837, in construing a statute in legal effect the same, it is said: "The penalty denounced cannot be inflicted on an individual officer because of a neglect of a duty unless he has neglected to perform some act which it is his duty to perform. Manifestly the duty must be personal and the act must be one which he is able to perform, or he cannot be at fault. He cannot be guilty of neglect in failing to perform an act which he has no legal capacity or authority to perform." See, also, Monnier v.Godbold, 116 La. 165, 7 Ann. Cas. 768, 40 So. 604, 5 L.R.A., N. S., 463, and note; Hydraulic Pressed Brick Co. v. SchoolDist., 79 Mo. App. 665; Bassett v. Fish, 75 N.Y. 303; 22 Rawle C. L., p. 487, sec. 165; 23 Am. Eng. Ency. of Law, p. 377.
By C. S., sec. 6591, "There is in this state but one form of civil action"; and by C. S., sec. 6670, "Civil actions in the courts of this state are commenced by filing a complaint." C. S., sec. 6687, requires that "the complaint must contain . . . . a statement of the facts constituting the cause of action, in ordinary and concise language." C. S., sec. 6693, provides that "if no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action."
In the instant case appellants did object to the complaint on the ground that it did not state a cause of action against either of them. But if, in fact, it failed to state a cause of action, a failure to object would not be a waiver of the right *Page 100 to raise this question at any later stage of the proceedings.
While courts will ordinarily indulge every reasonable presumption and intendment in favor of a pleading in order to sustain a judgment that has been pronounced thereon, I know of no authority and think none can be found, either at common law or under the code system of procedure, holding that a judgment can be sustained in any civil action unless a cause of action has been stated in the petition or complaint. A civil action can only be instituted by the filing of a complaint. Without such a foundation for its action the judgment of a court of record is void, even though it be a court which has jurisdiction over the subject matter referred to in the judgment. (In re Tinn, 148 Cal. 773, 113 Am. St. Rep. 354, 84 P. 152; 1 Freeman, Judgts., sec. 118; Works on Jurisdiction, p. 30, sec. 11.) "This pleading must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff." (21 Rawle C. L., p. 482, sec. 46.)
Under the provisions of sec. 4178 of the Rev. Codes, if the complaint fails to state facts sufficient to constitute a cause of action, the complaint will not support the judgment rendered upon said complaint, and the judgment so entered will be reversed upon appeal. (Trueman v. Village of St. Maries,21 Idaho 632, 123 P. 508, citing with approval Crowley v. CroesusGold Min. Co., 12 Idaho 530, 86 P. 536.)
I think the information in the instant case fails to state a cause of action and that the cause should be reversed and remanded with instructions to permit the informant, if he so desires, to amend the information so the facts stated will support a judgment, and the cause thereafter proceeded with in the usual manner.
I am authorized to say that Justice Budge concurs in the view that the information is insufficient to support a judgment and that the judgment appealed from should be set aside.
Petition for rehearing denied. *Page 101