The San Francisco call., 1896-01-17
The Demurrer to Gesford'S Com.
plant Has Been Sus.
tained.
THE COMPLAINT IS DEFECTIVE.
It Was Not Specific in It's Allegations
of Malfeasance and Must Be
Amended.

Judge Sanderson has sustained the de-
murrer of NJ. r. Higgins, the Insurance
Commissioner, to the suit of Henry G. Ges-
ford and the people of the State to oust
him from that position. Gesford was ap
pointed to the Office by Governor Budd on
the theory that Higgins has never really
qualified for the Office, and further that he
had been guilty OF such conduct as would
warrant his removal.
The complaint AYERS that when Higgins
was appointed by Governor Markham in
1888 he took the usual oath of Office, but
he failed to give the proper bond. He
should have given bond for $40 600, with
two sureties, each qualifying for the full
amount. Instead he gave bond for that
sum with suretles qualifying each to the
amount OF one-half the sum of the bond
To this contention, however, the court an
swers that as Governor Markham had ac-
cepted the bond the State had no power tc
call the bond in question. If the Governor
says the court, or any other official charged
with the approval or rejection of an of
fetal bond, by oversight Or inadvertence
approves bond imperfect in its character
then there is not only reason but authority
to either hold the State estopped from
| challenging the bond or, if not, then tc
give the official whose imperfect bond has
been so approved notice that the same is
| not satisfactory, and to allow and require
him to present a proper bond in lieu
thereof. The giving OF an imperfect bond
is different matter from giving no bond
at all, particularly when such bond has
been approved by the proper authority.
Continuing, the court said Of the second
count, that of miSdemeanor for having ac
cepted railroad pass:
Assuming the second count to have beer
well pleaded the action is, them one to obtain
q judgment That the defendant unIawfully
holds the office by reason of his acceptance
and use of this free pass, which is d Inisde
meanor or malfeasance in Office, being a direct
violation of law on the part OF defendant as
public State officer. The demurrer must there
fore be sustained TO that portion of the com
plant which relies on the insutficiency OF the
bond
In discussing that part of the com plant
relating to the acceptance of the pass the
defendant contended as the charge was
for an offense criminal in its character,
punishable by a forfeiture of office and also
by fine, therefore the case should be pros
eCuted by criminal Indictment or informa-
ton, ana the court could not entertain or
try the case under the form presented.
This contention, however the court re-
fused TO sustain. The code, he said, pro-
vides that such proceedings shall be pros
ecuted by common information, except
where the proceedings are had for the re-
moval of civil officers of the State, and
such action may be prosecuted by the At
torney- General in civil action
The court further states that the alIega-
tlon of the acceptance and use of q free
pass was based on information and be-
lief only, and the demurrer taken to this
on the ground of insutficiency is held well
taken. In such actions. it is announced,
where the charge is in substance and effect
criminal the rules of pleading applicable
to criminal actions must apply and govern.
In q criminal matter an avermenu on in
formation and belief is not sufficient. The
party charged has right to have direct
and specific averment made against him.