The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-10-18


have been guilty of malfeasance In OF
fice-and such is the judgment required
to be entered by the act itself-cannot
be justified under a purely innocent
act relating to the tenure of office.
1t is substantially conceded by coun-
sci for respondent that, If the statute
is essentially penal and the action es-
sentially criminal, then this judgment
cannot stand. That it is an act penal
in character: that it is an act essen
TALLY and directly aimed at the pun
ishment of Supervisors for the nom
performance Of official duty must be
conceded. Many reasons are based
largely upon the peculiar character OF
procedure to be followed. 1t Is only
necessary to say that every reason
suggested was carefully considered in
the very recent case of Kilburn VS..
Law, Ill Cal, 239, case involving an
attempt to remove the Bank Commits
sioners from office for the non-per-
Torrance of official duty A single diff
ference divides the two caSeS-the
fact that the prosecution was there
commenced under section 772 of the
Penal Code, and here brought under a
general statute Of the State. This diff
ference is wholly insignificant. In that
case it was declared that the proceed
Ing was criminal, although it bore
substantially all the marks of a civil
action found in this case. AS indicat-
ing that the particular character of
procedure to be followed in a case like
the present does not brand it's char
acter as either a criminal or civil ac-
ton, 1t is sufficient to say that the
constitution of the State, article ",
section IS. after providing for the i'm
parchment of various State officers,
declares "all other civil officers shall
be tried for misdemeanor in office in
such manner as the Legislature may
provide" 1t is thus apparent that the
doors are left wide open by the con-
Stitution for the Legislature to provide
for the trial of municipal officers for
misdemeanor in office in any way that
body may see fit. Under the very
terms of the constitution the power of
the Legislature in such matters is ex-
elusive and supreme
In conclusion, we find the principles
involved in this case covered as by a
blanket in the case of Marks, % Cal.
1874. That case as authority, has stood
for a quarter of a century, quoted
and approved by this court upon many
occasions. 1t was the unanimous de-
cision of the court, court composed
VI cIiIIlcII JUIlSlS. NidThS, al I1dTDOT
Commissioner was charged at the
instlgation of a private citizen with
neglect of official duty under an act
of the Legislature passed in 1858. In
all essentials the constitution of the
State at that time was the same as we
find 1t now. In it's opinion the court
In that case. defining the scope of the
act declared: at is provided In sub
stance in the act of 1853 that any per-
son holding any office in this State,
who shall neglect to perform his Off
cfal duty accordin to law, shall be de-
prived of his office" IT will thus be
observed that the act is mild and
bland-liNe In its language as COM
pared to the act involved in this case;
but al the same time it is equally APP
parent that 1t is identical in principle
After exhaustive argument and con-
sideration, the court there laid down
certain principles of law which are
absolutely controlling here. 1t was
first decided that neglect of official
duty amounted at common law to an
impeachable misdemeanor in office,
and upon conviction the officer must
be removed. 1t is next declared:
There can be no doubt that the case
made by the complainant is one di-
rectly within the provisions of the act
of 1858. That act was designed to af-
ford a remedy of a summary character
against off1ce-holders who were guilty
of extortion or neglect in the PERFORM
ance Of official duty, and the case of
Marks is brought by the complaint
within the latter category 1t is next
declared: THE act of 1858 does provide
how, in what manner, upon what pro-
cedure, in what court, officers not of
the first class shall be tried for that
misdemeanor in office known at COM
mon law and recognized in this stat
ute as neglect of official duty. The
power of the Legislature to enact
such a statute (under the latter clause
of section 49,, is plain-as obvious as
is the power of the Assembly to pre-
fer and that of the Senate to try arti-
cles of impeachment under the first
clause of the same section"
1t is next declared: THE power to
remove certain officers for misdemean-
or in office is exercised only by the AS
sembly and Senate under the name Of
impeachment. The like power to re-
move all other officers under like cir
cumstances and for like causes is to
be exercised in such manner as the
Legislature may provide"
The power to provide the manner in
which a delinquent is to be tried in
the second case is on a footing with
the power to directly remove the de-
linquent by the judgment of the Sen
ate in the first case I'm conclusion,
and as absolutely controlling this
whole question: the court declares
sit is the exercise by the District
Court of the power to remove from
Office upon conviction had, which is,
in fact, the power of impeachment,
and is impeachment In every respect
pursued"
1t is thus apparent that the pro-
ceeding in the present case upon prin-
ciple and authority is in all material
respects a proceeding to impeach
these municipal officers for a nom
performance of official duty, by a pro-
cedure laid down by the Legislature
under direct authority from the con-
stitution; for that authority declares
that these officers may be tried for
misdemeanor in office in such manner
as the Legislature may provide" The
act before us provides manner of
trial for such officers. The proceed
ings under this act being In the ma
ture of impeachment, it only remains
to be said that the impeachment of a
public officer for non-performance of
official duty is the highest form Of
criminal action.
BY this act of the Legislature nom
performance of official duty in fixing
xyatar taS In fha month Of Eahr,