State ex rel. Barker v. Meek

Ladd, J.

(dissenting).- — The foregoing opinion in effect holds that the conscious intentional disregard of official duty is not ground for removal from office unless there also be proven in addition thereto, an evil or corrupt motive. To this I can not yield assent. Nor do I think the authorities cited go to such limit. Moreover, the statement that defendant was not allowed to show good faith on his part is not borne out by the record. ' Counsel did make a formal offer to show that for the past thirty years depository bauks habitually had ordered tax receipts up to and including the last day of- September of each year, crediting the treasurer with the amounts without penalties which uniformly had been accepted by the treasurer. The trouble was this did not meet the cases made against him. No distinction was made between persons for whom tax receipts had been ordered on or prior to September 30th and those who first applied to-pay their taxes several days later. It may and often does happen that the treasurer is so pressed with demands that he necessarily must postpone a portion *686of the work of making ont tax receipts for several days, and, this being without fault of the taxpayer, the imposition of a penalty might be unjust. But, where the application to pay and for the receipt is after the' penalty has attached, the treasurer is without excuse if he purposely omit to collect with knowledge that the law requires him to do so and misdates the receipt contrary to statutory mandate, so as to make it appear that none was owing. Pressure of time or difficulties in bookkeeping will hardly excuse the conscious ignoring of a mandatory provision of the statute, especially when in the orderly course of business the entries of payments and preparation of receipts might well have proceeded in the order in which applications for payment were made. As county treasurer, it was defendant’s duty to “receive all money payable to the county.” On the other hand, it was the duty of every person “subject to taxation to attend at the office of the treasurer” and pay one-half of his taxes before April 1st and the other half before October 1st of each year. Section 1403, Code. “If the first installment of taxes shall not be paid by April 1st the whole shall become due and draw interest as a penalty of one percent per month until paid, from the first of March following the levy; and if the first half shall be paid when due, and the last half shall not be paid before October 1st following such levy, then a like interest shall be charged from the date such last half became delinquent; and the tax with all the penalties shall be collected at the same time and in the same manner.” Section 1413, Code. “The treasurer shall in all cases make out and deliver to the taxpayer a receipt, stating the time of payment, the description and assessed value of each parcel of land, and the assessed value of personal property, the amount of each kind of tax, the interest on each and costs, if any, giving a separate receipt for each year; and he shall make the proper entry of such payments on the books of his office.” Section 1405, Code.

*687The delinquencies charged and proven were that defendant received payment of the’ last half of taxes payable in 190? after September 30th and np till about noon of October 8th of that year from sixty-five different persons without adding the penalty fixed by the above statute, and, in .violation thereof, dated the receipt to each back to September 30th, thereby concealing the loss to the county in omitting to collect penalties. Some payments of taxes were made into banks on September 30th of which the treasurer was not advised until the following day, and besides these about three hundred and twenty-five individuals paid after that date without the penalties being added, and the dates of the receipts and' record were falsified as stated. The excuse offered for disregarding the explicit provisions of the law is that to have exacted penalties and correctly dated the receipts and the book entries would have disarranged and confused the books of the office. How this would have resulted is not clear. If because of pressure of business all receipts for taxes for which remittances had been received or tendered or payments offered to be made prior to October 1st could not have been sent out before that date, this furnished no excuse' for including remittances received on that day or those following concerning which there had been no tender or offer of payment without adding penalties as provided by law or for falsely dating the receipts and entries of these subsequent payments. Banks, even though designated by the board of supervisors as depositaries, are not agents of the treasurer for the collection of taxes, but in forwarding to him act solely in behalf of the taxpayer. To avoid the penalty of delinquency there must be actual payment to the treasurer or offer of such payment or the deposit of the money for the payment of specific taxes to his credit and with the approval express or implied in a designated depository within the time prescribed in the statute quoted. But there was no room for construction in the case at bar. There *688was no misapprehension of the facts nor misconception of the law. On the trial defendant admitted that he knew that the statute imposed on him the duty of exacting the penalty of one percent on all payments received after September 30th, and to date the tax receipts and entries in his books as of the day payments were made. Section 1463 of the Code declares that: “If any auditor or treasurer or other official shall neglect or refuse to perform any act or duties specifically required of him, such officer shall be guilty of a misdemeanor.” Could a treasurer’s duties be more specifically stated than in the statute quoted?

Several courts have experienced much difficulty in determining whether a technical disregard of the law honestly made where the law is uncertain will furnish ground for removal from office. Ponting v. Isaman, 7 Idaho, 581 (65 Pac. 434); State v. Scates, 43 Kan. 330 (23 Pac. 479); State v. Bourgeois, 47 La. Ann. 184 (16 South. 655); 29 Cyc. 1410. But when the law is unmistakable and the officer acts in plain violation of its express mandate, or omits to do that which it clearly commands, there should be no hesitancy in denouncing such act or omission as “willful.” In such a case the evil motive if essential is to be implied. Tims in State v. Teeters, 97 Iowa, 458, the charge was that defendant had willfully obstructed the highway, and “willfully” as used in the statute was held to be synonymous with “intentionally,” while in Parker v. Parker, 102 Iowa, 500, “willful” in the statute punishing trespass in cutting growing timber was held to involve an evil purpose. But one might cut growing timber supposing he rightly could do so, as under the belief it was dead, as was pointed out; while one who places an obstruction in the highway knowing it to be such is without excuse, for the law expi’essly prohibits the act. In State v. Sayre, 129 Iowa, 122, “willful” in a statute denouncing a penalty against an elector who shall willfully vote in a precinct other than that of his residence was held to involve either *689knowledge of disqualification or a reckless" disregard of whether disqualified or not, and attention was directed to the distinction-between ignorance of law as affecting the purpose with which án act might be done and ignorance of fact. In- Parker v. Parker, supra, we said that the word when found in penal statutes nleant, not only “intentionally or deliberately done, but with a bad or evil purpose as in violation of law ... or contrary to a known duty.” Where an act exacted by the law of a public official is consciously omitted or an act is consciously performed by a public official which is prohibited by law, his conduct should be presumed to have been, with an improper purpose as it is inimical to the public good, and is to be regarded willful as a matter of law. Coffey v. Superior Court of Sacramento Co., 147 Cal. 525 (82 Pac. 75); Odin Coal Co. v. Denman, 185 Ill. 413 (57 N. E. 192, 76 Am. St. Rep. 45); State v. King, 86 N. C. 603; U. S. v. Three Railroad Cars, 28 Fed. Cas. 144; U. S. v. Houghton (D. C.) 14 Fed. 544; State v. Perry, 109 Iowa, 353. In Nebraska, where the causes of removal are in substance like those of this state, in an action to remove a surveyor for changing government corners, proof that this was knowingly done was held sufficient. See Bradford v. Territory, 2 Okl. 228 (37 Pac. 1061); State v. Welsh, 109 Iowa, 19. Moreover, the statute in this state is not strictly penal in character. It is essentially remedial and protective. Its purpose is not the award of compensation for injury, nor the recovery of a penalty, nor the infliction of punishment upon the wrongdoer, but to shut off all opportunity for farther transgressions. The language employed in State v. Leach, 60 Me. 58 (11 Am. Rep. 172), where the accused as register of deeds' was charged with issuing a false certificate, and the statute authorized removal if found guilty of misconduct in office or incapable of discharging its duties, is pertinent: “It is to be observed, in the first place, that this section is *690not one providing for the punishment of the individual offender by fine or imprisonment for an offense against its provisions. It is not in that sense a strictly penal statute. It is rather in the nature of an inquest of office, and the consequences of a conviction under it reach only to the possession of the office - and its emoluments. It seems more like the substitution of the court for the Legislature when acting by impeachment as provided in the section of the Constitution before alluded to. These distinctions may be of some importance in giving a construction to the statute and in determining the limits to be given to the language used. . . . There is a manifest distinction between a case of misconduct resulting in loss of office only, and the charge of a legal crime, which requires proof of criminal intent before conviction and punishment of the person by fine or imprisonment after conviction. In the latter, there must be a direct charge in the indictment of the criminal intent and criminal act. Misconduct does not necessarily imply corruption or criminal intent. We think the Legislature used the word in its more extended and liberal, sense. This statute is not, strictly speaking, a penal statute, but rather remedial and protective.” See Shaw v. Macon, 21 Ga. 280. Nor these reasons, doubtless the proceedings for removal are civil, not criminal, as in many of the other states. Section 1251 of the Code permits any resident of the county of which defendant was treasurer to make complaint by petition in the name of the state, and section 1254 provides that “the charges when filed shall be tried as a law action and all the proceedings shall as nearly as may be conform to the rules governing the trial of such actions.” And, where the evidence is conclusive as in this case, the court may direct a verdict. Skeen v. Paine, 32 Utah, 295 (90 Pac. 440).

In my opinion the ruling of the district court was correct, and should be approved.

Deemer, O. J\, joins in the dissent.