Clearwater Republican. [volume] (Orofino, Idaho) 1912-1922, 1915-11-12
Decision of Supreme Court
In HOar Custer Proceeding

from the said Blair E. Hoar the sum
of $500 herein, or any other sum.
(3) g That this action should be
dismissed, and that all the relief
prayed for in the complainant s in
formation herein should be denied.
(4 g That the defendant, Blair
E. Hoar, is entitled to recover his
costs and disbursements herein from
the complainant.
Judgment of the district court
was accordingly entered on May 81,
1914. and thereafter on July 81, 1914,
notice of this appeal was filed and
served together with the proper under
taking. This is an appeal from the
judgment.
At the March Lewiston term of this
court, on the first day thereof, being
March 20, 1915, notice of motion and
motion to dismiss appellant appeal
were interposed, argued and submit
ted, and by the court granted.
Thereafter petition for rehearing
1 of this cause was duly filed by the ap
pellant and allowed. After further
consideration, the motion to dismiss
this appeal will be denied upon the
authority of Daugherty v. Nagle, 27
Ida., 511, l49 Pac. 729.
'1n our opinion this action quite
properly might have been disposed of
upon the demurrer to the appellant s
information which we think raised all
of the questions involved in this
action.
''This proceeding is brought under
sec. 1859, Rev. Codes. which is as
follows:
when an information in writing,
verified by the oath of any person, is
presented to a District Court, aIleg-
ing that any officer within the juris-
diction of the court has been guilty of
charging and collecting illegal fees
for services rendered or to be rendered
in his office, or has refused or neglec-
ted to perform the official duties per-
tanning to his office, the court must
cite the party charged to appear be-
fore the court at time not more than
ten nor less than five days from the
time the information was presented,
and on that day or some other subse-
quent day, not more than twenty days
from that on which the information
was presented, must proceed to hear,
in summary manner, the information
and evidence offered in support of
the same and the answer and evil
dence offered by the party in
formed against; and if on such hear
ing it appears that the charge is sus-
tained, the court must enter decree
that the party informed against be de-
prived of his Office, and must enter a
judgment for $500 in favor of the in
former, and such costs as are allowed
in civil cases. -
The court then holds as follows,
according to the syllabi:
81. That under Sec. 1859, Rev.
Codes, there are two grounds provid-
: ed for the removal Of public officer
} First, where he is guilty of charging
and collecting illegal fees for SER
vices rendered or to be rendered ir
his office; and, second, where he has
refused or neglected to perform off.
cial duties pertaining to his office.
"2. The term fees, as used il
Sec. 1859, Rev. Codes, designates the
, sums authorized by law to be charged
for services rendered by public off
Ger in the discharge of his duties al
prescribed by law. %. Sec. 1859
, Rev. Codes, is penal statute and in
, tended to punish public officials fo
charging and collecting illegal fee,
for services rendered in their officia
capacity, or for neglecting to perform
official duties pertaining to their off
> ces. And for these offenses publ,
officer can be informed against an,
prosecuted by private person. Bu
4 no proceeding can be maintained b,
> a private individual against a public
4 official under this statute for any 9th
t er kind of misconduct.
3 "a. Where it affirmativelv ap
T pears on the face Of an information
e that the public officer did not charg
: or collect illegal fees for service
c rendered in his office, but that sue
r compensation was paid him unde
r a contract entered into for service
y rendered independent and outside O
: the duties of his office, sec. 1859, Rev
$ Codes, does not apply. (Corker v
e Pence IL Ida. 152; Pointing v. Isaman
e Z Ida. 284; and Collman v. Wana
maker, 27 Ida. 342, l49 Pac. 292, cite
a and followed).
It "5. Wherein an action to remove
d public officer under Sec. 7459, Rev
l. Codes. the informer relies on the col
n lection of illegal fees as the basis g
his complaint, it must be alleged an