Sacramento daily record-union., 1888-10-20
SUPERVISORS EXONfRiTED.
JUDGE VAN FLEET RENDERS JUDO
MENT IN THEIR FAVOR.
The Validity OF the Act Can Only be
Determined by Civil Action to
Recover Excess OF Salary.

Recover Excess OF Salary.
| In Department Two of the Superior Court
yesterday morning, Judge Van Fleet rendered
the following decision in the case of Samuel
N. Johnston VS.. George McBlullen:
State of California County of Sacramento, in
/ the superior Court. Department Two-S. NJ.
! Johnson VS.. George c. McM1llen.
! This is proceeding of a quasi criminal char
| acter instituted by plaintiff. an informer
| under Section 792 of the Penal Code, against
| defendant Mcaullen, to remove the latter from
| the Office OF Supervisor OF this county upon the
grounds of malfeasance and neglect OF official
| duty. The information filed in this Court by
\ the plaintiff is in the nature of an accusation
and charges in substance that the defendant
| has been, nee January l, 1885, and is now, one
| of the Supervisors of this county, and as such
entitled under the law TO a salary of but $50 per
| month; that as such Supervisor the defend ant
has been guilty of willful violation of The law
in this: that he has since the lst day of April
1887, frudulently, corruptly ard knowingly
drawn ana received from said county a salary
OF S75 per month as such Supervisor-or the sum
of SIS per month in excess OF the salary allowed
by law; that the defendant has also been guilty
of neglect of his official duty such Supervisor
in tn that he has since the said 1st day of
April 1887, fraudulently and corruptly per-
nltted his fellow Supervisors. Geo. o. Bates and
;. J. Jackson TO draw n like monthly salary of
SO well knowing that they were entitled to but
$50 per month.
The defendant filed II general demurrer to the
information, coupled with an answer denying
specifically and categOrically its several accu-
sations, and therea ter the case was argued and
submitted upon agreed statement of facts
stipulated by counsel in open Court. So far as
the demurrer is concerned il may be OycrruleG
While the matters stated in the information
may not fall strictly within the letter of the
statute l am satisfied that it is sufficiently broad
10 comprehend them and that as against gen
eral demurrer the Information states cause of
action.
The facts upon which the case was submitted
on its merits are these: That the defendant
was elected to the Office OF Supervisor of this
county in November, 1884, and took office jan
uary, lSs5 That thereafter the members of the
Board of Supervisors cast lots for terms as re
CURED by law, and that defendant drew a term
which will not expire until January, 1889 That
from the time of taking Office up to April /
1897, defendant drew his salary at the rate of
$50 per mon h, but that since the lst day of
April, 1887, down to the present time he has
drawn his salary at the rate of SIS per month.
That in drawing his salary at said rate of S75 the
defendant was advised and hone Y and in good
faith be ieved that the law had been so amended
that 1t authorized and fixed his salary at said
figure and that said sum of S75 has at ali times
been drawn by defendant in pursuance of the
belief, in good faith, that he was entitled to the
sum. That the amendment to the law was
made by the csslature in March, 1887; that it
is only since id amendment and being so ad-
vised that defendant has drawn and received
said sum OF 315 per month; and that il is under
the same circumstances and in the same belief
that defendant 5 fellow Supervisors Bates and
Jackson have been permitted to draw a like
rate IF salary.
1t thus appears that whatever may have been
defendant legal right in the premises, the acts
compls ined Of were admittedly done by him in
the honest belief OF right.
These facts do not make a case against de-
fendant under the statute. The proceeding is
had under Section 772 of the Penal Code, pro-
vfdlng for the summary removal of officers
guilty OF extortlon or malfeasanee in office, or
of neglect OF official duty. While the form of
procedure provided for partakes of civil
nature in some respects, the provision
is largely of a punitive character and
denounces acts which are recognized both at
the common law and under our Penal
Code as crimes for which the offender may be
proceeded against by indictment or information
and punished criminally. (P. c., Sec. 5IS.) The
judgment is of penal and exemplary nature
II provides that the defendant shall not only be
deprived OF his Office in the event the charge is
sustained, but also that the Court must enter
Judgment for five hundred dollars in favor of
the informer," with costs, thus involving rights
and interests of the citizen of the most sacred
and important character, position, honor and
property.
1t has long become settled law that in pro-
ceedings OF this and a kindred character the
analogies of the criminal law must be at least so
| far observed as to require an evil or corrupt
motive or des.gn in the party charged to be both
alleged and proven. z Bish. Grim. Pro- Sec.
| S3i; 6 B. Monroe, III: is Wendell, 277: Triplett
Vs. Hunter, so Cal, 644)
The case of Trjplett vs. Hunter was a prosecu-
ton under the same section OF the Penal Code
for taking illegal fees as Justice of the Peace
1t was neither alleged nor proved that the fees
were taken knowingly, willfully or corruptly.
\ Judgment removing and fining the defendant
was reversed on this ground, the Court saying
Though the statute does not in terms re-
quire that the wrongful act must have been
knowingly and corruptly done, we are sat
ised that 1t was not the intention of the Legis-
lature to visit with this severe penalty an act
performed by an officer in perfect good faith
and under an honest conviction that he was
acting strictly within the line of his duty 1t
was not intended to punish an officer by re-
moval from office, and with a penalty OF $500
| for mere error of Judgment
In this case the plaintiff has recognized the
necessity of averring in his information the ex-
lstence OF this corrupt motive and intent on the
paIt of the defendant, but it will be seen that
there is fatal ab.ence Of any proof to sustain
this avefment. To the contrary. the existence
of a wrongful and corrupt purpose on the part
of defendant is directly negatiYei by the admis-
sion that in drawing said amount of salary he
titled him thereto.
such being the fact it can make DO possible
difference in the result of this proceeding what
salary the defendant under the law was entitled
TO draw. He cannot be removed from office
and fined for doing an act innocently under a
Statute which requires it to have been. done
knowingly, wilfullv and clrruptly.
And as matter of fact, If not of law it
would seem that defendant had colorado
ground for his belief that he was entitle1 to a
sa airy OF SO per month. When defendant as
$50 per mohsh for Supervisors in counties of this
| class. In 1885 this statute was so amended
(Stats. 1850 p l62) as to increase the salary to
s75 per month, but with proviso that the in
crease should not affect incumbeuts; in 1887
| stats. 81, p. 160) the Act again SO amended
| as to repeal this proyiso, and upon the face of
the statute make the increase of salary ia ke effect
at once. 1t was under this last amendment
| that defendant and his associates were advised
and believed they were entitled to the increased
salary, and under which they drew IT, Ii is
| claimed q Qt los Aati ca
clearly unconstitutional that it is void and of no
effect, and furnished no legal basis for a well
| founded belief by defendant that he ami his as
| sociates were entitled TO act under it, That in
| acting under it defendant was acting in ignor-
| ance of the law that the mistake mistake
| of law and not OF fact, and that ign rance or
| mistake of law Will not excuse. This is axio-
matte, iQROrdattd teqfs GrcuSd', bu; it has no
| application here. Guilty knowledge or corrupt
| intent or purpose is question of fact and must
always appear as predicate to hold one crimi-
\ nally responsible for his acts. Here admissibly
that element did not exist. Besides, one acting
| in good faith under void statute viii be pro-
tected Miller VS. Dunn II Cal, 1852 J, and it be-
comes immaterial to inquire, so far as this case
is concerned, whether the Act under which
| the defendant has been drawing his salary is
| constitutional or not. For the reasons given
| determination of that question conlo in no
event. in view of the facts affect the question
of defendants responsibility here. 1t beiug ad-
| mitted that he acted in good ;aith and in an
| honest belief OF right, he cannot be punished
criminally, even if the statute be void. A de-
| termination of that question for any other pur-
| pose in this case would be without binding force
| upon anyone. If it be desired to have the va
| lidity of the Act determined, it can be effect
| lively done in a civil action against defendant
to recover the alleged excess of salary.
| The action will be dismissed, and defendant
will have Judgment against the plaintiff ior his
| costs.
| Like proceedings having been instituted by
| the same plaintiff against George o. Bates and
s. J. Jackson, respectively, and all three actions
having been heard together and submitted upon
! the same facts the same reasoning and eonclu,
| sion applies to those cases, aud ike Judgment
| will be entered in each.
W. C. VAN FLEET, Judge.
The California Market, 7l2 X street, sells
| the best and healthiest poultry, the freshest
eggs and sweetest butter, the freshest and
clesnest fish, the best mountain apples,
and, in fact, we have the best that can be
found in a tirst-class market. California
| Market, 712 K street.