Opinion
Civ. No. 278.
May 7, 1906.
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Walter Bordwell, Judge.
The facts are stated in the opinion of the court.
Davis, Kemp Post, for Appellant.
John E. Daly, for Respondent.
This was an action under section 772 of the Penal Code for the removal of a public officer. Findings and judgment for plaintiff, and defendant appeals therefrom, and from an order denying a new trial.
The accusation filed by plaintiff against defendant alleged, among other things, the defendant's election and qualification as marshal of the city of Long Beach; the appointment of plaintiff by the board of trustees as a public officer; the refusal of the defendant to recognize such appointment, and his neglect and refusal to exercise any control over such officer; and that defendant obstructed such officer in the discharge of his duties. Further, that defendant has willfully refused and neglected at all times to file with the treasurer of the city an affidavit showing that the moneys paid by him to said treasurer were all of the funds he had collected, or received, during the months precedent to the payment to said treasurer, or to report delinquent lists of licenses uncollected. The complaint avers, and it is not denied, that an ordinance of said city, No. 109, was in force, providing for the licensing of certain kinds of business transacted and carried on in said town of Long Beach. The answer denied all of the allegations of the accusation, other than the existence of the ordinance above stated and defendant's delinquency in relation to the filing with the treasurer an affidavit and report, as in the complaint alleged.
Upon the trial, the court found that the ordinance No. 109 provides that licenses shall be issued, signed by the city clerk and president of the board of trustees; that after the same are issued the city clerk shall deliver such licenses to the marshal and the marshal deliver his receipt to the clerk; that the marshal, upon collecting such licenses, shall deliver to the city treasurer all sums collected by him therefor, and take the treasurer's receipt for all moneys turned over to him; and thereupon said marshal was to deliver such treasurer's receipts for said sums to the city clerk. And the court finds that he did not file with the city clerk treasurer's receipts for money which he claims to have paid the city treasurer on account of licenses collected by him. The court further finds that he did collect various sums as and for licenses without having the license then in his possession or delivering the same, or accounting to the city in any way therefor, but gave his individual receipt for such sums and appropriated the proceeds to his own use; that he has issued numerous receipts for licenses to various persons and has not accounted to the treasurer or the city clerk for the moneys collected upon the same.
While there is nothing in the record showing the provisions of the ordinance before mentioned, as found by the court, yet there is no specification of error on account of such finding, and it will be assumed that the court finding the contents of the ordinance had the same before it upon the trial.
Appellant's contention is that the accusation does not state a cause of action against the defendant under section 772 of the Penal Code. This section provides: "When an accusation in writing, verified by the oath of any person, is presented to a superior court, alleging that any officer within the jurisdiction 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 neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented, and on that day, or some other subsequent day not more than twenty days from that on which the accusation was presented, must proceed to hear, in a summary manner, the accusation, etc."
With this contention we do not agree. The municipal corporations act, by section 852, confers upon the board of trustees the power to appoint, in their discretion, such police and subordinate officers as in their judgment may be deemed necessary. Section 880 provides that the department of police shall be under the direction and control of the marshal. It was the duty, therefore, of the marshal to direct and control in a proper manner the official acts of this police officer. The court finds, and there is ample testimony in support, that, on the contrary, he obstructed and prevented the officer from discharging his duty, and prevented him from having access to the jail, thus neglecting and omitting to perform a plain duty devolving upon him by law. The record discloses that, without obtaining from the city clerk the licenses as by the ordinance provided, the defendant on several occasions collected from parties engaged in business in said city the amount of such license fees, giving his individual receipt therefor, keeping and appropriating the money to his own use, and making no return of any kind thereof to the proper officials. Defendant concedes that he omitted entirely the duty involving upon him of making monthly reports, or filing the monthly affidavits required by law, excusing himself upon the ground that he did not know it was required of a marshal to file such reports, and that it has not been the custom of marshals in office prior to his time to file such reports and receipts. This ignorance of the law is no justification, and the finding of the court establishes that it was result, not of ignorance, but of improper motives in concealing from the officials money received by him in an official capacity. It mattered not whether the licenses were in his possession to deliver or not, if he received funds in his official capacity as marshal as and for licenses they thereupon became the property and funds of the city, and it was his duty to report the same whether the licenses had been delivered or not. Appellant insists that, notwithstanding these facts, the act of defendant was misconduct in office, punishable under the Penal Code, and is not cognizable in proceedings of this character under section 772; and cites as an authority Siebe v. Superior Court, 114 Cal. 552, [46 P. 456]. The Siebe case may be readily distinguished from this. In that case Siebe undertook the performance of a duty, but neglected and failed to perform it in a proper way, and the court holds that it was not a refusal or neglect to perform his duty. In this case there was no attempt at performance, but an entire omission and neglect to do those acts which by law devolved upon him in his official capacity; and whether the act amounted to misconduct or not, it nevertheless was an omission and neglect under the purview of section 772.
It is further insisted that because the accusation in this case was filed June 16th and the case was not tried until the seventeenth day of July the court was without jurisdiction to hear and determine the action. There was no demand upon the part of defendant to dismiss the proceedings. The court obtained jurisdiction of the person and of the subject matter when the citation was served. The limitation of time mentioned in the section within which the proceeding shall be heard is obviously intended to guarantee to the accused a speedy hearing, not unlike the right to a dismissal on account of delay given by section 1382 of the Penal Code. This right, like any other statutory right, may be waived by competent parties. ( People v. Hawkins, 127 Cal. 374, [ 59 P. 697].) The defendant appeared on the day set for trial, whether the same was so set by agreement or otherwise, and proceeding to trial without objection on account of delay, will not be heard upon this appeal to raise for the first time an objection to the jurisdiction of the court for the reason mentioned.
It is unnecessary to consider or notice the many other specifications of error and exceptions taken at the trial, inasmuch as the judgment is amply supported by the admissions and other findings not involved in the specifications. Nor do we perceive any error in the record warranting a reversal.
The judgment and order are affirmed.
Gray, P. J., and Smith, J., concurred.