Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1921-06-03
IMPORTANT DECISION
IN FA VOR D. c. KUlNZ

lowed in civil cases.
The gravamen of the charge here |
is that the defendant, as prosecuting |
attorney for Bear Lake county, Ida
no, has failed to reside at the coun-
ty seat, has failed to maintain an |
office at the county seat, and has |
failed to maintain office hours at |
the county seat. Plaintiff contend |
ing that the refusal to comply with |
the statute concerning these matters |
constitutes a neglect or refusal to |
perform IAN official duty pertaining |
to his office" within the purview of |
the provisions of section 1854 G. s.
The sections of the compiled sta
tutes applicable insofar as they re-
late to the prosecuting attorney, read
az follows:
Section 1851. Offices to be Kept
at County Seat. Sheriffs, recorders,
| treasurers, assessors, and prosecut-
ing attorneys must have their offices
at the county seat, and keep them
open for the transaction of business
from o o'clock a. m. till s o'clock p.
m, every day in the year except
holidays.
Sec. 1854. Residence of Officers.
The following officers must reside
at the county seats of their respec
tive counties: The probate judge,
the sheriff, treasurer, recorder, as
SCISSOR, the prosecuting attorney, the
recorder, and the county superinten-
dent of public instruction.
It is clear that the requirement
that an officer shall reside at the
county seat is not "an official duty
pertaining to his office" The su-
preme court OF California clearly
states the Interpretation to be given
the language OF our section 1854 in
Elk Parte Harold, Al Cal. 129, in
Interpreting similar statute of that
state:
1T is claimed on the part Of the
prosecution that 1t is an official duty
OF the defendant, as treasurer sOf the
coupty of San Joaquin, to reside at
the city of Stockton, the. county seat
of that county. The duty enjoined
by law, within the meaning OF Sec.
176, Penal Code, is an official duty.
1t is an act to be performed by the
incumbent of the office, in his official
/. capacity. 1t is not a qualification,
which a person must possess in order
that he may be eligible to, or con-
tinue to hold, an office. Should it
be provided by competent authority
that no officer should absent himself
from the state for more than thirty
days, or that he should not discharge
the duties of his office after he had
attained the age of sixty years, those
provisions would amount to condi-
tions, upon which the incumbent's
right to hold the office depended,
but they would in no sense constitute
official duties-duties pertaining to
his office. Provisions to the effect
that a person shall not be eligible to
particular office who is not of a
designated age, or a resident or cleo
tor of the proper county, district
! etc, are qualifications which he must
possess in order that he may be ell
gib1e to, and hold, the office, but
they clearly are not duties pertain
ing to tho Office
Counsel for defendant contend
: that tho requirements of Sec. 1851
as to maintaining an office and office
hours come within the same category
| as residence" In view of the con-
cIusions reached by me in this matter
} it will not be necessary to decide this
: point and I express no opinion there-
on.
: An examination of the statutes
discloses that Sec. 1851 substantially
appears in the Revised Statutes of
, 1887 as Sec. 1922, and also in the
, Revised Codes of 1903 as Sec. 1922.
So far as l am able to ascertain,
+, the requirements of this section were
first extended to the prosecuting
; ney," in the compilation of 1887.
Sec. 1864, SO far as it affects the
prosecuting attorney, appears as Sec.
-i1825 r. S. 1887, and as Sec. 1884
r. G. 1909. wherein the office is al
SO designated as that of district
r attorney"
8 Both of these sections were there
fore in effect before the adoption OF
8 the constitution and the admission OF
q lTHaha faAa nj a
q laws. Sec of Article XXI OF the
s Constitution provides that "All laws
: now in force in the territory of Idaho
q which are not repugnant to this con.
y stitution shall remain in full force
until they expire by their own limi
: tation or be altered or repealed by
the legislature" IL the said Sections
= 1861 and 1854 are not repugnant tC
= the Constitution, they were continued
Q and remain In force by virtue of th|
a section of the constitution quoted.
: Originally the office of district at
e torfey, under. the territorial govern.
d ment, was a district office for each
. judicial district in the territory. Is
8 Terr. (1864l Sess. Laws 573; Bro
d Terr. Sess. Laws (1866) 187. Sub
! seauently district attorneys were
Q elected for each district attorney dis
e trict. Terr. Sess. Laws (1869l 15(
1RFT. DSsS- LAWS t4ofD W. A6dAA
e tho laws relating to this office wa!
d amended and Il was made a count!
, office.
. ssSec. 1. The office OF district At
n torney for each of the organized
:. counties of this territory Is hereb.
! created"
{ II Terr. Sess. (18s1) $50. Ap
! proved Feb. 10 1881. Thus, at tn
= time of the adoption OF the stat
y constitution which went into effee
Il CONTINUED on page sixl