Points Decided.

(April 23, 1915.)

In Re Application of FRED L. HUSTON for Writ of Habeas

Corpus.

[147 Pac. 1064.]

STATE AUDITOR - DUTIES OF NOT CUSTODIAN OF PUBLIC FUNDS APPLICATION OF SEC. 6975, REV. CODES-MISTAKE IN MINISTERIAL DUTIES-REMEDY.

1. In order to warrant a conviction under sec. 6975, Rev. Codes, it must be found that the defendant officer is, in the language of the statute, "charged with the receipt, safekeeping, transfer or disbursement of public moneys."

2. The state auditor in his official capacity as such officer is not the custodian of public moneys, within the meaning of sec. 6975, Rev. Codes, and is not properly classified with those public officers who receive public moneys, or are charged with safekeeping, transferring or disbursing the same, with relation to his official duties in drawing warrants on public funds.

3. Sec. 6975, Rev. Codes, was intended for the punishment of that particular class of public officers who, being charged with the custody of public funds, fraudulently appropriate to their own use or the use of another a portion of such funds, in violation of their trust.

4. It is not the intent of the law to hold a public official criminally responsible for a mistake of judgment, under a severe penalty in case he has made such mistake, in the absence of actual fraud, theft, conspiracy to cheat, or some felonious and unlawful attempt to deprive the state of its public moneys.

5.

After a claim has been submitted to the state board of examiners as provided by law, and the same has been examined, audited and allowed, and the auditor directed to draw a warrant in favor of the claimant, it becomes the ministerial duty of the auditor to draw such warrant.

6. If a mistake is made by the auditor in drawing a warrant upon the wrong fund or item in the same department, in the absence of collusion, theft or actual fraud on the part of the auditor, resort should be had to the civil rather than the criminal law, in accordance with the following provision of sec. 145, Rev. Codes, as amended, Sess. Laws 1913, p. 57: "For the proper performance of the duties herein enjoined upon the state auditor, as secretary of the state board of examiners, or for any unlawful or irregular pay

Argument for Petitioner.

ment of any account submitted against the state, the state auditor is hereby made responsible upon his official bond."

7. Held, that as the facts alleged in the indictment do not state a public offense against the petitioner, he must be discharged, and it was so ordered.

Original application in this court by Fred L. Huston for a writ of habeas corpus. After hearing, the petitioner ordered discharged.

Edwin Snow, for Petitioner.

In all cases where it has been sought to indict state or county auditors under the provisions of this statute, it has been held that such officers are not "charged with the receipt, safekeeping, transfer or disbursement of public moneys' within the meaning of this statute. (State v. Newton, 26 Ohio St. 265; State v. Myers, 56 Ohio St. 340, 47 N. E. 138; Moore v. State, 53 Neb. 831, 74 N. W. 319; State v. Moore, 56 Neb. 82, 76 N. W. 474; Sherrick v. State, 167 Ind. 345, 79 N. E. 193; State v. Pierson, 83 Ohio St. 241, 93 N. E. 967; State v. Heath, 70 Mo. 565; 10 Am. & Eng. Ency. Law, 1019, 1020.)

The mischief sought to be remedied by statutes similar to the one under which this indictment was brought was the misuse for private purposes of public funds by officers who, by virtue of their office, had such funds in their custody and control. Indeed, in some cases, where statutes, word for word and exactly similar to ours, have been construed, it is plainly and clearly stated that the crime denounced is embezzlement. (Storm v. Territory, 12 Ariz. 35, 94 Pac. 1102.)

The state board of examiners, under the law and the constitution, has the sole and absolute discretion in regard to what are and what are not valid and just claims against the state. (Bragaw v. Gooding, 14 Ida. 288, 94 Pac. 438.)

It may have been irregular, or even wrong, to pay the $90 out of the particular fund from which it was paid, but it is absolutely unthinkable that the use of public money in payment of the state's just debts could be construed to be the

Argument for Respondent.

appropriation of so much money to the private use of the disbursing officer or of the person to whom it was paid.

"One cannot be convicted of embezzlement when it appears that all moneys collected by such person in his fiduciary capacity have been fully paid to the . . . . department of government to which the funds should have been paid. The case is not altered if the payments are made on the wrong account." (United States v. Elvina, 24 Philippine Rep. 230.)

Raymond L. Givens, E. P. Barnes and J. M. Parrish, for Respondent.

A deputy or subordinate officer cannot escape criminal liability by reason of having received orders from his principal to commit an illegal act. (State v. Cutts, 24 Ida. 329, 133 Pac. 115.)

The very terms of the general appropriation act (1913 Sess. Laws, p. 637) prescribed in sec. 1 thereof, negatives the defense of ignorance or excusable misinformation. Again, in sec. 4, page 645, the distinct duty is laid upon the state auditor to classify the vouchers as to the several departments and state institutions.

In addition to the plain wording of the statute, our own supreme court has passed upon the precise question involved here to the effect that there can be no payment of public moneys without an appropriation therefor, by reason of the constitutional and statutory inhibitions and regulations thereof, and that in the absence of such appropriation, the mere fact that the debt is a valid obligation against the state constitutes no defense. (Kingsbury v. Anderson, 5 Ida. 771, 51 Pac. 744.)

Since the Kingsbury case the rule laid down has never been deviated from, and in several recent decisions wherein the petitioner herein was party, our supreme court has re-enunciated the same rule, and the petitioner cannot claim, in the light of these decisions, absence either of knowledge of the facts or understanding as to the proper construction to be placed upon the law applicable to the matter at bar. (Jeffreys v. Huston, 23 Ida. 372, 129 Pac. 1065; McPherson v.

Opinion of the Court-Budge, J.

Huston, 24 Ida. 21, 132 Pac. 107; Falk v. Huston, 25 Ida. 26, 135 Pac. 745.)

In the light of these cases wherein the petitioner was defendant and is thus charged with knowledge as to the law because of the decisions of this court, his attempted defense of the custom or usage as sanctioning the payment of moneys from one appropriation or fund for services rendered in some other department is refuted. (Stratton v. Green, 45 Cal. 149; People v. Commrs., 120 Ill. 322, 11 N. E. 180; State v. Young, 18 Wash. 21, 50 Pac. 786; State v. Burdick, 4 Wyo. 290, 33 Pac. 131; In re Internal Improvements, 18 Colo. 317, 32 Pac. 611.)

The indictment being based on sec. 6975, the mere doing of the act unlawfully is sufficient to sustain the indictment, irrespective of the intent; hence unnecessary to charge intent. (State v. Browne, 4 Ida. 723, 44 Pac. 552.)

The authorities are clear in regard to the making of separate and distinct appropriations for the different departments and the inhibition against payments for other purposes or from other funds. (State v. Holmes, 19 N. D. 286, 123 N. W. 884; Menefee v. Askew, 25 Okl. 623, 107 Pac. 159, 27 L. R. A., N. S., 537; State v. Eggers, 36 Nev. 372, 136 Pac. 100; Spaulding v. People, 172 Ill. 40, 49 N. E. 993, at 999; Whittemore v. People, 227 Ill. 453, 10 Ann. Cas. 44, 81 N. E. 427, at 432; People v. Beveridge, 38 Ill. 308; State v. Ristine, 20 Ind. 345.)

BUDGE, J.—The petitioner, Fred L. Huston, auditor of the state of Idaho, was indicted by the grand jury of Ada county, on January 13, 1915, which indictment, eliminating the title, reads as follows:

"James H. Wallis and F. L. Huston are accused by the Grand Jury of the County of Ada, in the State of Idaho, by this indictment of the crime of without authority of law appropriating public moneys committed as follows, to wit: That on or about the twentieth day of August, 1914, and before the finding of this indictment at Boise, in the County of Ada, State of Idaho, the said James H. Wallis then and there being the duly appointed, qualified and acting Dairy, Food

Opinion of the Court-Budge, J.

and Sanitary Inspector of the State of Idaho, and the said F. L. Huston, being then and there the duly elected, qualified and acting Auditor of the State of Idaho, and as such Auditor charged with the lawful disbursement of public moneys, did, wilfully, unlawfully, and feloniously and not in the due and lawful execution of their trust as such public officers appropriate funds and public moneys belonging to the State of Idaho, without authority of law to the use of Robert Wallis in the sum of Ninety ($90.00) Dollars, lawful money of the United States of America, by then and there paying to the said Robert Wallis, as salary, the said sum of Ninety ($90.00) Dollars, lawful money of the United States of America, out of the traveling expense fund of the said State Dairy, Food and Sanitary Department appropriation of the State of Idaho. for services rendered in the Bacteriological Department of the Health Department of the State of Idaho."

James H. Wallis is not a party to the petition herein for a writ of habeas corpus and is in no way connected with this proceeding.

This indictment was returned under sec. 6975, Rev. Codes, We will quote such portions of said section only as are conceded by counsel for respective parties to form a basis for this indictment, to wit:

"Each officer of this state, or any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:

"1. Without authority of law, appropriates the same or any portion thereof to his own use, or to the use of another;

"Is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from holding any office in this state.'

The facts in this case are not disputed and briefly stated are as follows:

Robert Wallis rendered services in the bacteriological laboratory for the months of June, July and August, 1914, at a fixed compensation of $90, for which amount he presented