Ex parte Harrold

By the Court: The prisoner, who is the County Treasurer of San Joaquin ■ County, was indicted for “willfully omitting as a public officer to perform a duty enjoined by law upon him.” The offense, as charged in the indictment, is his failure, during a specified period, to reside at the county seat of his county. He is now held in custody by virtue of a bench-warrant issued by the County Court, after having been tried and found guilty as charged in the indictment. The only question we shall consider, is whether the indictment charges the commission of a public offense.

It is provided by the one hundred and seventy-sixth section of the Penal Code, that “every willful omission to perform any duty enjoined by law upon a public officer or person holding any public trust or employment, Avhere no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.” The Political Code (Sec. 4,119), provides that certain county officers, among whom is the County Treasurer, must reside at the county seats of their respective counties.

It is claimed on the part of the prosecution, that it is S,n official duty of the defendant, as the Treasurer of the County 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. It is an act to be performed by the incumbent of the office, in his official capacity. It is not a qualification or condition, which a person must possess in order that he may be eligible to, or continue 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 [131]had attained the age of sixty years, those provisions would amount to conditions, 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 a particular office who is not of a designated age, or a resident or elector of the proper county, district, etc., are qualifications which he must possess in order that he may be eligible to, and hold, the office, but they clearly are not duties pertaining to the office. We are not called upon in this case, to express any opinion as to the power of the Legislature to impose upon a constitutional officer, a new or additional condition, affecting the tenure of his office or his right in any respect to hold the same; but it is sufficient in this case to say, that the neglect with which the defendant is charged by the indictment, is not the neglect of a “ duty enjoined by law,” within the meaning of Section 176, Penal Code. It is not claimed that the defendant is liable to punishment under any other section of the Penal Code. The indictment, in our opinion, does not charge any offense. The prisoner is, therefore, entitled to be discharged from custody, and it is so ordered.