45 Cal. 199

In re Marks

Decided July 1, 1873

California Supreme Court · decided 1873-07-01

Appeal from the District Court of the ¡Nineteenth Judicial District, City and County of San Francisco. The complaint averred that the complainant was a citizen and taxpayer of the State of California. The complaint was filed January 20th, 1873, and it alleged that Marks’ term of office as Harbor Commissioner was four years from the 6th day of December, 1869; and that the office of State Harbor Commissioner was an office provided for and created by the terms of an Act of the Legislature entitled “ an Act to provide for the improvement and protection of the wharves, docks, and water front of the City and County of San Francisco,” approved March 14th, 1863; and that the duties of said Board, among other things, were to collect such rents, tolls, wharfage, eraneage, and dockage as should be fixed under said Act, and to disburse and dispose of the revenue arising therefrom as in said Act provided; and that the said John J. Marks knowingly, willfully, and corruptly refused and neglected to discharge his said duty as a member of said Board of State Harbor Commissioners; and that he willfully and corruptly conspired and colluded with Jasper O’Farrell, likewise a State Harbor Commissioner and member of said Board, the two constituting a majority thereof; and did control, influence, and direct its action so as to cause said Board to so manage the affairs of said Commission that the said revenue arising from said rents, tolls, wharfage, eraneage, and dockage should not be disbursed and disposed of according to law and said Act of the Legislature, but should be fraudulently appropriated to their own proper use and benefit, and especially to the use and benefit of said John J. Marks. That heretofore, to wit: on the 1st day of June, 1872, at said city and county, the said Board of Harbor Commissioners resumed possession of Broadway wharf, a wharf of the property of the State, and under the control of said Board, and before that time under lease to the Central Pacific Railroad Company, for the purpose of ascertaining its actual value, with the view of reletting it to said railroad company; that said Marks was, at the time above named, Harbor Commissioner as aforesaid, and acted officially in said Board in favor of said proceeding, causing and'influencing the same by his official vote and action to be done; that upon the said order being passed the Board, the said Marks undertook, in his. official capacity as State Harbor Commissioner, to cause the same to be carried out; and that, in that behalf, he ordered the acting collector of said wharf, John Buchanan, to collect the tolls of said wharf during said month of June, 1872, and to pay the tolls so collected, day by day as fast as collected, to Charles Callaghan, then an employé of said Board. And further, that the said Marks then and there, acting in his official capacity as State Harbor Commissioner, directed the said Charles Callaghan to receive said tolls from said Buchanan, and to cause false and fraudulent reports and returns to be made to the office of the State Harbor Commissioners concerning the same, concealing the real amount of tolls so collected; and the said Marks then and there directed the said John Buchanan and the said Callaghan so to make such false and fraudulent reports and returns. And the complaint further charged that the said John Buchanan, acting under the orders of said John J. Marks, collected the tolls at said wharf for said month, and that the same "amounted to the sum of nine hundred and seventy-eight dollars, which sum was of the moneys of the State, and that, acting under said Marks’ orders, only five hundred and twenty-six dollars and seventy-five' cents of said sum was paid over to the State by said Buchanan, or by any one whomsoever, but that the balance, to wit: the sum of four hundred and fifty-one dollars and twenty-five cents, was received and taken from the said John Buchanan by the said Charles Callaghan, acting under said Marks’ orders, and was afterwards, to wit: on the day last given aforesaid, by the said Charles Callaghan, paid over to Thomas Marks, the son and duly authorized agent of the said John J. Marks, for the use of the said John J. Marks, and that the same was afterwards, to wit: on the day and year aforesaid, by said Thomas Marks, duly delivered to his said father, John J. Marks, and by him converted to his own use. That no part of said last named sum of four hundred and fifty-one dollars and twenty-five cents has ever been accounted for or paid to the State Treasury, as required by law. And the complaint further charged that the hereinabove recited transaction at and relating to the said Broadway wharf was done the better to enable said Marks to influence and cause said Board to make a corrupt contract of lease of said wharf to said Central Pacific Railroad Company, and that the same was afterwards, to wit: on the 1st day of July, 1872, by said Board, under and by the official influence and action of said Marks, made and entered into with said railroad company. That at the city and county aforesaid, to wit: on or about the 1st day of July, 1872, Broadway wharf, of the property of the State under control of said' Board, was let by said Board to the Central Pacific Railroad Company, as tenants, from month to month, at the monthly rent of five hundred dollars per month, a sum which was then, and ever since hath been, greatly less than the true monthly value of said wharf. That said wharf was then and there, and hath ever since been and now is, worth the just and full sum of two thousand dollars per month, which fact the said John J. Marks well knew. But that in refusal and neglect of his duty he voted and officially acted in said Board in favor of making said lease, thereby causing the same to be made at said inadequate sum of five hundred dollars per month. That he was moved to his said action by a corrupt and secret understanding with said railroad company; that he, the said John J. Marks, was to be paid for his said action the sum of two thousand five hundred dollars cash in hand. And the complaint further alleged that the said John J. Marks was afterwards, to wit: on the day and year aforesaid, paid by said company, in pursuance of said before mentioned secret agreement, the said sum of two thousand five hundred dollars, which he appropriated to his own use, in violation of his duty and against the law. There were other charges of a similar nature with regard to leasing Washington street wharf to Goodall & Helson, and the bulkhead on East street to Turner & Harvey, the Greenwich dock to Green & Searles, and Cowell’s wharf to Edwards & Sage, and the wharf on East street to Thomas & Drake. The complaint also averred that it was the duty of said Board to employ suitable wharfingers and collectors, and to require of them to keep a correct account of moneys collected, and to pay over such moneys once a week, and that Marks, in collusion with O’Earrell, caused the Board to neglect and refuse to do so, and caused the Board to appoint improper persons, and caused the Board to refuse and neglect to require said appointees to keep any account, or to pay over the money by them collected once a week, or at any time; and that Marks caused the employes to expend the moneys by them collected without vouchers or check, in making repairs on wharves, etc. That said Marks caused an assessment to be levied on all the wharfingers and collectors, to make up a fund of ten thousand dollars to be paid to him; and that said wharfingers and collectors, by direction of Marks, paid said assessments to Marks out of money collected by them of the revenues of the wharves of which they were collectors. That said Marks also caused said wharfingers and collectors, out of the money collected by them, to buy him a set of silver plate, at a cost of nine hundred dollars. That it was the duty of said Board to cause the docks and slips to be dredged, and to award a contract therefor to the lowest bidder, after advertising the same, and that Marks made an agreement with one Black to do said dredging at thirty-four cents per cubic yard, when it was worth only twenty-five cents per yard, and the contract was let to Black without any advertisement, and Marks received from Black ten ¡3er cent of the gross proceeds of the dredging. There was a similar charge with regard to a contract with Boobar and Richardson about driving piles. That Marks influenced the Board to require the wharfingers and collectors to charge full sums to vessels for wharfage and dockage, but to retain one third of the amount to pay assessments laid by Marks, and to return to the Board a sum less than that collected. The plaintiff appealed. The other facts are stated in the opinion.

Key passage — most relied on by later courts

““The act of 1853 does provide how, in what manner, upon what procedure, in what court, officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the legislature to enact such a statute (under the latter clause of section 18) is plain — as obvious as is the power of the assembly to prefer and that of the senate to try articles of impeachment under the first clause of the same section. The power to remove certain officers for misdemeanor in office is- exercised only by the assembly and senate under the name of impeachment — the like power to remove all other officers under like circumstances and for like causes is to be exercised in such manner as the legislature may provide.’ (Section 19.) 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 delinquent by the judgment of the senate in the first case.””

quoted by 1 later decision, including Gay v. District Court of the Tenth Judicial District

Relies on Minor v. Kidder

Good law ✅— No negative treatment on recordhow we know

Decided 1873-07-01

How this case has been cited

Cited by 13 later decisions — most recently April 1936

13 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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By the Court:

¶1The complaint here was filed in the District Court of the Yineteenth Judicial District by L. E. Crane, under the provisions of the Act of March, 1853, “ to prevent extortion in office and enforce official duty.” (Acts. 1853, p. 40.) It alleges that Marks holds the office of State Harbor Commissioner, and that he has neglected to perform the duties of his office—some sixteen specifications of such, his alleged *216neglect, being set forth. "Upon demurrer filed by Marks, the Court below gave judgment dismissing the proceedings, and from this judgment this appeal is brought.

¶21. There can be no doubt that the case made by the complaint is one directly within the provisions of the Act of 1853 (p. 40). That Act was designed to afford a remedy of a summary character against officeholders who were guilty of extortion or of neglect in the performance of official duty, and the case of Marks is brought by the complaint within the latter category.

¶32. It is clear, too, that the Act of 1853 has not been repealed, but is still in force.

¶43. There is nothing, either, in the Act which requires that Crane, who preferred this complaint, should aver or prove that he is a party in interest in the strict sense, or has himself sustained any special damage by reason of the official neglect complained of. The purpose of the statute was the wholesome one of authorizing any person who would take the duty upon himself to institute an inquiry into the conduct of certain public officers in the manner pointed out. It is not the personal interest of the complainant which the statute regards, but the higher and more important interest of the people and the body politic in the honest and faithful discharge of official duties by public servants. The right of a private person to institute an inquiry into the conduct of officeholders under the Act in question may be said to be akin to the right of every elector to contest the claim of any person asserting himself to have been elected to office—to the nature and purpose of which latter we had occasion to refer in Minor v. Kidder, 43 Cal. 229.

¶5The third section of the Act of 1853 is in the following words: “Sec. 3. The District Courts shall have jurisdiction of all cases arising under this Act.”

¶6It is- claimed by the respondent that it -was not competent to the Legislature to confer this jurisdiction upon those *217Courts. The argument in support of this proposition is rested by counsel upon the clauses of the Constitution by which the jurisdiction of the District Courts and of the County Courts are respectively defined, and it is thereupon claimed that this case is a special case or proceeding, and is, therefore, necessarily cognizable only in the latter Courts. But ’even if it were in itself such special case, it is also, as we have already seen, a special case, the jurisdiction over which has been otherwise provided for, and is, for that reason, not a case within the rightful jurisdiction of the County Court. In the eighth section of the sixth Article of the Constitution, defining the jurisdiction of the County Courts, it is provided that those Courts shall have jurisdiction “ of all such special cases and proceedings as are not otherwise provided for,” etc. It is, therefore, practically left to the legislative will to determine whether the jurisdiction over any given special case, or number of special cases, shall be vested in the County Court or some other Court, and in this instance the jurisdiction has been in express terms conferred on the District Court. But our judgment here proceeds upon.grounds wholly apart from the consideration of whether the case in hand can be fairly brought within the definition of a special case'or not. It is provided in substance in the Act of 1853 that any person holding any office in this State who shall neglect to perform his official duty according to law shall be deprived of his office. So far the Act is certainly only declaratory of the common law; for neglect of official duty amounted at common law to an impeachable misdemeanor in office, and, upon conviction, the officer might be removed. (1 Story on the Constitution, Sec. 800.) The Constitution of this State (Art. IV) undertook to distribute this power to remove public officers for misdemeanor in office—of which, as we have said, neglect of official duty *218was one. It, for this purpose, placed the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, Attorney General, Surveyor General, Justices of the Supreme Court, and District Judges in one class, and placed all other civil officers in another class; it then provided that those of the first class should be liable to impeachment—(that is, to be accused by the Assembly and tried by the Senate) for any misdemeanor in office (Sec. 18), and that those of the second class should “be tried for misdemeanor in office in such manner as the Legislature may provide.” (Sec. 19.)

¶7The Act of 1853 does provide how—in what manner— upon what procedure—in what Court—officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the Legislature to enact such a statute (under the latter clause of Sec. 18) is plain—as obvious as is the power of the Assembly to prefer and that of the Senate to try articles of impeachment under the first clause of the same section.

¶8The power to remove certain officers for misdemeanor in office is exercised only by the Assembly and Senate under the name of impeachment—the. like power to remove all other officers under like circumstances and for like causes is to be exercised “ in such manner as the Legislature may provide.” (Sec. 19.) 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 delinquent by the judgment of the Senate in the first case.

¶9When, therefore, the Legislature, pursuant to this clause of the Constitution, conferred the power upon the District Courts to try the delinquents of the second class, the power of those Courts was not at all referable to the sixth article of the Constitution, defining the judicial power, and hence an argument against the jurisdiction of the Court, drawn from a consideration of that article, is of no more force than *219if addressed to the Senate upon a trial of impeachment. It 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, except the mere form of procedure pursued.

¶10The Assembly is not, indeed, the accuser, nor does the Senate try the accusation. The Legislature has substituted a private citizen, it may be, instead of the one, and the District Court in the place of the other. The substance of the judgment to be entered in case of conviction is prescribed, and the rules of practice governing in civil cases are to be applied, and the benefit of an appeal secured. These make up the manner in which the trial is to be had.

¶11We, therefore, think that it was the duty of the Court below in this case to have entertained the proceedings against Marks; and its judgment must be reversed, and the cause remanded, with directions to overrule the demurrer, and for further proceedings.