Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-12-24


cision in the cases of w. 0. Davis VS..
George G. McMullen, S. J. Jackson and
George o. Bates, in which the latter are
charged with having illegally drawn $75
per month as their pay as Supervisors of
this county. The case has attracted wide
attention, and the decision will be read
with great interest all over the State as
many other Boards of Supervisors have
construed the law the same as that of this
county. The decision goes to the bottom
of the subject, and is an able and carefully
prepared document. Following is the de-
cision in full, published in advance bv per-
mission of the Court:
THE DECISION.
In the Superior Court of the county of Saera.
mento, State of California. w. o. Davis. plaint-
it, VS.. George C. McMullen, defendant
This is proceeding instituted by the plaintiff.
under Section ~ OF the Penal Code, against the
defendant to remove him from his Office as a
member of the Board OF Supervisors.
The plaintiff AYERS in his accusation that the
defendant "well knowing his duty imposed
upon him as supervisor, has been guilty of
charging and collecting illegal fees for services
rendered by him in his official capacity as Su-
pervisor, to wit That during the month of Oc-
tober 1883, he charged and collected from the
county of Sacramento the sum of SIS for his
services at such Supervisor during the month of
October, when the said McMullen well knew
that he was entitled to salary of only $50 a
month during said month of October; that dur
ing said month of October the said McMullen
charged, received and collected SIS in excess of
the amount to which he was legally entitled for
his services as such Supervisor
The word fees is not used in any other part of
the accusation, but it is averred that the de-
tsndant wlllfully, in violation of the laws, and
illegally charged and collected that SIS for his
salary for the month OF October in excess of the
amount allowed by law as his salary And for
another cause of action, the plaintiff AYERS that
the defendant has refused and neglected to per-
form the oilciai duties pertaining to his office,
and has fraudulently and corruptly performed
the duties imposed upon him in this, to wit:
That he has during said month of October per
mitted Geo. 0. Bates and S. j. Jackson, duly
elected, qualified and acting Supervisors of Sac
ramento county, to draw the sum of S75 per
month, for the month of October, each from the
county, for their salarie. as Supervisors and
audited and allowed the claim of said Bates and
Jackson for $40 for the month of October as their
salaries for Supervisors during said month
against said county well knowing at the time
that neither of them were entitled to more than
the sum OF S30 per month for their services as
Supervisors during said month of October
The defendant admits that he received the
sum of SO for the month of October as his sal
airy for that month and claims that he was en-
titled to it; and he denies that he fraudulently.
corruptly or otherwise advised, audited or al.
lowed any claim of Bates and jackson or either
OF them for SO for the month OF October as
their salaries, and the evidence shows that he
did not advise, audit or allow any amount 10
Bates or Jackson for salary or other compensa-
ton The Board of Supervisors has never aud
tied or allowed any claim of any officer for sa /
ary nor is 1t the duty of the Board to allow
claims for salaries of officers. (Statutes lSS3
page 304.) But it is the duty of the County
Auditor to audit such claims and draw his war
rants ior them. (Statutes 1888, page 324) And
since the month of April, 1887. the Auditor has
drawn his warrants monthly for SIS in favor of
the defendant under the advice of the District
Attorney that the defendant was entitled tn
that amount as his salary under the law
The section of the Penal Code under which
this prosecution is had, provides that an officer
who has been guilty OF charging and collect
ing illegal fees for services rendered, or to be
rendered, in his office, or has refused or neg
lected to perform the official duties pertaining
to his office shall be deprived of his Office and
the intormer shall recover against him iudg-
ment for $500 and costs, as in civil actions
This section does not in terms include the
charging and collecting of Illegal salaries. but
IN terms II only includes the charging and col
lectlng OF illegal fees" There is marked
distinction between fees and salaries some
omcerS receive salaries and others receive fees
as their compensation for official services The
Sheriff, Tor instance receives a fixed salary from
the county as his compensation but he charges
and collects fees from the public for official
services, and pays them into the treasury but
the Coroner, for his compensation RECEIVES fees
without salary, which makes his COMPENSATION
dependent wholly upon the quantity OF services
performed, and therefore unC Certain as to amount
The word salary imports fixed compensa-
ton received by an officer from municipality
county or state for annual or periodical services
but the word fees imports a sum for specigc
Official services, received from such of the pub
nc as may nave occasion to require such sery-
ices. This distinction in the meaning of those
two words has been marked and observed In
all the legislation in this S ate concerning fees
and salaries, and there has been much of such
qS = Drlft tI.
Code, relied on to sustain this prosecution is
highly penal IL cannot be extended by implics-
ton beyond the import of its language so as 10
include the charging and collecting illegal
salaries, for the rule is, that a penal statute
cannot be extended by implication, but it must
be construed strictly. People ex rel. b. w.
Purley vs.: Hall, . Cal. 564. People VS.. Tisdale,
In the People VS.. Tisdale, the Court said:
= The rule for the construction of penal statutes
we understand to be, as somew hat tersely stated
by Bishop; that they are to reach no farther in
meaning than in words; no pers IN can be made
subject to them by implication; and all doubts
concerning their Interpretation are to predomi-
nate in favor of the defendant" " Then viewed
in the light of this rule charging and collecting
illegal salaries is not within the clause of that
section of the Penal Code which prohibits the
charging and collecting illegal fees"
But If this were not So there is another view
OF this case which must be fatal to the prosecu-
ton. An officer cannot be deprived of his office
Tor charging or collecting illegal fees or re-
lusdl VI HeBiect 10 perform the Official duties
pertaining to his Office unless he has Gone il
willfully aud corruptly. In the case of Triplett
VS.. Munter, 80 Cal. 644, which was an action for
charging and collecting. illegal fees, the Court
sald: Inc proceeding is taken under Section
712 of the Penal Code, which relates to the
oHense OF charging and collecting Illegal fees
and Of the neglect or refusal of a1 officer
to perform the official duties of his office
The same penalty is denounced against both
ofenses, viz: Removal from Office and fine of
s50O for the use OF the informant. The provision
is hlghiy penal in its nature; and though the
statute does not in terms require that the wrong
tul act must have been knowingly and eorruptly
done, we are satisfied that it was not the inten-
tion OF the Legislature to visit with this severe
penalty an act performed by an officer in per-
feet good faith and under an honest conviction
that ne was acting strictly within the line of his
duty. 1t was not intended to punish an officer
by removal from Office and with a penalty of
s2OO for mere error of judgment in an honest
discharge OF his duties. In such cases it NAV
be that if the wrongful act be established. the
burden Will be on the defendant to show affirma-
lively tina. it was done honestly ana in good
faith
Did the defendant in this case act honestly
and in good faith in collecting the sum of S75
instead OF 800 for his salary? This question
must be answered by consideration of the Acts
case.
The County Government Act passed March
IA, 1883, Section Je6 fixed the salaries of the
supervisors Of this county at $50 per month.
Statutes 1888, page SS7) But Section l66 of that
Act was amended by an Act passed March is.
1880. so as TO fix the salaries of the Supervisors
az go per month. Statutes 1885, page 1851
However, Section of the amendatory Act pro-
Vlded that the salaries herein provided shall
not take effect or be in force until the expira-
ton OF the terms of the present officers" Stat
utes 1885, page 1851 The defendant was then in
once, and by this section was excluded from
the benefits OF the Act. The increased salaries
could only be received by officers 10 be elected
after the passage OF the Act. But by an Act
passed March II, 1887, that section of the amend
atory Act was itself amended so as to read: This
Act shall take effect and be in force from and
after It's passage The inference from the Ian
guage OF this amendment is that the I.egisla-
ture intended that it should take effect, retro
spectively, so as to give the benefit of
the increased sslary to those who were
In Office at the time of the passage
OF the act of 1885. as well as those who
were elected afterwards. The Act of Mach II
1857. to which the Act of 1885 was amended.
took effect Immediately upon its passage. as IL
was declared therein that: This Act sbeil tale
effect immediately On the 18th dav of March
1897, the same cay the Act was passed amend
ing the amendstory Act of 1855 the Legislature
passed an Act again amending Section i65 of the
county Government Act, but as TO the salaries
OF the supervisors the language of the amend
ment was the same as the language of the
amendatory. Act of 1885, fixing the salaries at
go Per month, neither increasing nor diminish
ing the amount Statutes 1857, page ISL This
act Old not contain sny repeating clause of
former Acts but it provided thst whenever the
creased or diminished BY the terms of this Act
the provisions hereof so increasing or diminish
ing such salary or compensation shall not
apply 10 or Affect present iucfJuhpnts f-taf-