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Show SUPREME COURT HAS PROHIBITED BURKE TRIAL Orin Burke, holdover county commissioner com-missioner or Heaver county, yester-ti yester-ti iv was granted by the supreme court a peremptory writ prohibiting the Fifth district court from proceeding further in the trial of Mr. Burke on charges of malfeasance in office preferred pre-ferred by the county attorney. The charges were preferred by C. T. Woodburv. countv attorney, whose statutory duty it becomes to prefer such charges in the absence of indictment indict-ment by the grand jury. Mr. Woodbury alleged that Mr. Burke presented a claim for $92.50 November 21. 1919, for eighteen and one-half days of road work at 55 a day. February 2. 1920, it was charged charg-ed that he presented a claim for $34.70. for expenses, when on information infor-mation and belief the county attorney attor-ney alleged that Mr. Burke had actually ac-tually spent only $15.70. On Dec-6. Dec-6. 1920, it is alleged he presented a claim for $130 for board and room while on county road work from November No-vember 10 to December 5. Other counts were presented in the charges by the county attorney, to the effect tha Mr. Burke himself, as county commissioner passed on these claims, knowing them to be fraudulent. The case was after some time set for hearing this yar before another judge than Will-am F. Knox, regularly regu-larly elected for the district, and Mr. Burke's council sought the writ of prohibition, alleging in the first F'.ace that the setting was out of the term: and in the second place that the accusation of the county attorney attor-ney did not state sufficient facts to constitute a ground for removal from office. Concerning the r:ght of the county coun-ty commissioners to do road work as an employee of the county, the supreme su-preme court remarks: "The complainant, as county attorney attor-ney of Baver county has not cal'ed our attention to any statute, and we confess we know- of none, which either eith-er expressly or impliedfy declares that a county commissioner commits an offense by working on the county roads with a pick and shovel; nor are we apprised of any statntorv nro-vision nro-vision -which forbids a commissioner from presenting and having allowed a claim against a county for the reasonable rea-sonable value of service of that nature na-ture -when rendered by him. We very much doubt if even those citizens and taxpayers who are inclin ed to be skeptical when it comes to public expenditures, to say nothing ior tne genuine booster of good roads movement, -would complain if some of our county commissioners would work on the county roads with a pick and shovel and collect for services rendered, provided, of course something some-thing results from their labor. Nor are we prepared to say. in the absence absen-ce of some statute forbidding that a county commissioner may not lawfully lawful-ly present a claim against the county coun-ty for board and rcom while engaged in doing county road work. From aught that appears in the accusation in this case that we now have under consideration, the plaintiff's claim In this regard may have been a perfectly perfect-ly legitimate item of expense, properly proper-ly incurred and legally and justly allowable al-lowable and payable to him. The court further points out it was incumbent on the county attorney as the complaining party to show how the allowance of these claims was in violation of the law. "We cannot conceive," says the court, "of any wrong being perpetrated by a county paying to its commissioner the expenses ex-penses incurred by him in providing himself with something to eat and a place to sleep when he is called away from his home and Dlace of business and is actually occupied with the necessary duties of looking after Co. road work. Continuing the court handles the alleged felony charged against the Co. commissioner in approving and having passed a fraudulent claim. It points out that the court has previously previ-ously held the district court should be prohibited from proceeding in a similar sim-ilar case because the accusation was predicated on the wrong section of the statutes, and in the present case the county attorney fails to point out the statutes which are offended' against. But even disregarding this point th court holds the complaint fails to specify properly the fraudulent fraudu-lent claims alleged to have been passed pas-sed in that it "fails to show where and how they were fraudulent. The court holds he should not be prosecuted prose-cuted on these counts because the accusations are wanting in facts. Accordingly Ac-cordingly the court issues a porrem-ptory porrem-ptory writ of prohibition against the district court assuming jurisdiction.. |