Crossman v. Lesher

Paterson, J. The charges of the plaintiff in his accusation filed herein are of the same nature as those referred to in Crossman v. Kenniston, ante, p. 379. By the accusation, the plaintiff herein sought, as in the Kenniston case, to remove the defendant from his office as city trustee. The matter was heard before another department of the superior court. Judgment was entered in favor of defendant for his costs, and plaintiff has appealed.

Counsel for appellant herein — counsel for respondent in Crossman v. Kenniston, ante, p. 379—rely upon a proposition not presented in the other proceeding. They claim that, under section 889 of the Penal Code, plaintiff is authorized to commence and prosecute this proceeding. That section reads as follows: “When the proceedings are had for the removal of district, county, [383]municipal, or township officers, they may be commenced by an accusation or information, in writing, as provided in sectipns 758 and 772.”

We see no merit in this contention. The section referred to simply provides that proceedings for removal of public officers may be commenced by either an accusation or an information, as provided in sections 758 and 772. Section 772 provides for proceedings in the superior court upon an accusation, in writing, filed by any person against any officer, for “ charging and collecting illegal fees for services rendered, or to be rendered, in his office,” or neglect “to perform the official duties pertaining to his office.” It is not claimed in this case that the defendant charged or collected illegal fees, or that he has refused or neglected to perform any official duty. The accusation charges the defendant with an entirely different kind of misconduct in office. When the proceedings are for any wailful or corrupt misconduct in office, other than such as are mentioned in section 772, they must be commenced by accusation presented by a grand jury, as provided in section 758. It is only when the misconduct complained of consists in charging and collecting illegal fees, or failure or neglect to perform the official duties imposed upon the officer by law, that the prosecution may be had upon the complaint of an individual.

J udgment' affirmed.

Garoutte, J., and Harrison, J., concurred.