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District Court of Appeal, Second District, Division 2, California.


Cr. 5137.

Decided: June 17, 1954

Edmund G. Brown, Atty. Gen., William E. James, Dep. Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Simon L. Rose, Dep. Dist. Attys., Los Angeles, for appellant. Bodkin, Breslin & Luddy and Peter E. Giannini, Los Angeles, for respondent.

From an order granting defendant's motion under section 995 of the Penal Code** to set aside an indictment charging defendant in three counts with violating section 67 of the Penal Code in that he offered a bribe to (1) John J. Irwin, the President of the Board of Police Commissioners of the City of Los Angeles, (2) Boyd Taylor, Executive Assistant City Attorney of the City of Los Angeles, and (3) Roger Arnebergh, City Attorney of the City of Los Angeles, the people appeal.

This is the sole question necessary for us to determine:

Is section 67 of the Penal Code applicable to executive officers of a municipality of the State of California holding office pursuant to a freehold charter of such municipality?

This question must be answered in the affirmative.

Section 67 of the Penal Code reads: ‘Every person who gives or offers any bribe to any executive officer of this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer is punishable by imprisonment in the state prison not less than one nor more than fourteen years, and is disqualified from holding any office in this state.’

Defendant makes a most persuasive contention against the application of section 67 of the Penal Code to ‘executive officers of a municipality of the State of California.’ His argument is this: Section 67 of the Penal Code is applicable only to an ‘executive officer’ of the State of California.

In determining who is an executive officer of the State of California these rules must be observed:

1. In the construction of a statute or instrument the office of the judge is simply to ascertain or declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted. (Section 1858, Code of Civil Procedure; Dillman v. McColgan, 63 Cal.App.2d 405, 409[2], 146 P.2d 978; Caminetti v. Pacific Mutual L. Ins. Co., 22 Cal.2d 344, 353[3], 139 P.2d 908.)

2. Words and phrases are to be construed according to the context and approved usage of language. (Penal Code, sec. 7, subd. 16.)

3. Penal statutes that encroach on private rights of citizens must be strictly construed. (Oddo v. Hedde, 101 Cal.App.2d 375, 383[4], 225 P.2d 929.)

4. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess its meaning and differ as to its application violates due process of law and is void. (Wotton v. Bush, 41 Cal.2d 460, 469, 473[1], 261 P.2d 256.)

5. Crimes are not to be built up by courts with aid of inference, implication or strained interpretation, and penal statutes must be construed no further than the clear intent of their words. A person cannot be made subject to a criminal act by implication. (People v. Zimbrolt, 35 Cal.App.Supp.2d 745, 747[2], 91 P.2d 252; DeMille v. American Fed. of Radio Artists, 31 Cal.2d 139, 156 [11], 187 P.2d 769, 175 A.L.R. 382.

Bearing in mind the foregoing rules we find the charter of the City of Los Angeles declares the city is to have the power ‘to make and enforce all laws and regulations in respect to municipal affairs subject only to restrictions and limitations provided in this charter * * *.’ (Article I, Section 4, Los Angeles City Charter.)

The effect of the foregoing charter provision has been stated by our Supreme Court in Civic Center Ass'n v. Railroad Comm., 175 Cal. 441, 448, 166 P. 351, 354, thus: ‘Thereupon, according to the terms of those sections of the Constitution, its powers over municipal affairs became all-embracing, restricted, and limited by the charter ‘only,’ and free from any interference by the state through general laws, including laws giving the Railroad Commission powers over public utilities. The result is that the city has become independent of general laws upon municipal affairs. Upon such affairs a general law is of no force with respect to Los Angeles. If its charter gives it powers concerning them, it has those powers; if its charter is silent as to any such power, no general law can confer it.' (See also Sincerney v. City of Los Angeles, 53 Cal.App. 440, 446, 200 P. 380.)

The rule is likewise stated in Otis v. City of Los Angeles, 52 Cal.App.2d 605, 611, 126 P.2d 954, 958, thus:

‘As was tersely stated in County of San Mateo v. Coburn, 130 Cal. 631, 636 (63 P. 78, 621), ‘A county is a governmental agency or political subdivision of the state, organized for purposes of exercising some functions of the state government, whereas a municipal corporation is an incorporation of the inhabitants of a specified region for purposes of local government.’ and again, section 1 of article XI of our state Constitution provides, ‘The several counties, as they now exist, are hereby recognized as legal subdivisions of this State.’ It is the free consent of the persons composing them that brings into existence municipal corporations, and they are used for the promotion of their own local and private advantage and convenience, while it is the sovereign will which brings into being counties as local subdivisions of the state; and the establishment of such political subdivisions of the state is accomplished without the solicitation, consent or concurrent action of the people residing within them. Cities, therefore, are distinct individual entities, and are not connected political subdivisions of the state. As a matter of fact, municipalities, and particularly charter cities, are in a sense independent political organizations and do not pretend to exercise any functions of the state. They exist in the main for the purposes of local government.' (Italics added.)

It has been held that the pay of municipal officers falls within the term ‘municipal affairs' and the acts of the Legislature in increasing the pay of officers in municipalities were void and unconstitutional. (Popper v. Broderick, 123 Cal. 456, 462, 56 P. 53; Trefts v. McDougald, 15 Cal.App. 584, 587, 115 P. 655 et seq.)

In Scheafer v. Herman, 172 Cal. 338, 155 P. 1084, it was held that the removal of oficers of a municipality by means of a recall when provided for by charter is a municipal affair and not subject to general laws. The relationship between the state and county and the state and municipality is well expressed in Otis v. City of Los Angeles, quoted supra.

The President of the Police Commission of the City of Los Angeles, the City Attorney and the Executive Assistant City Attorney are each appointed or elected, and their tenure of office, provisions for removal and duties are prescribed by the charter provisions or by ordinance of the City of Los Angeles, each of which matters are held to be strictly municipal affairs not subject to control by the State of California. The conclusion therefore appears inescapable that such officers are executive officers of the municipality and not executive officers of the State of California, hence that if defendant offered them a bribe he was not offering a bribe to an executive officer of the state, and, therefore, did not violate the provisions of section 67 of the Penal Code.

Singh v. Superior Court, 44 Cal.App. 64, 185 P. 985, relied on by appellant, as supporting its contention that section 67 of the Penal Code is applicable to the city officials involved in the present situation is not applicable to the facts in the present case for the reason that in such case the officer involved was a district attorney of a county which, by the express provisions of Article XI, section 1 of the Constitution, is recognized as a division of the state as also does section 460 of the Government Code.

Likewise our Supreme Court in Sharp v. Contra Costa, 34 Cal. 284, 290, states that a county is a portion of the state government. Therefore the discussion in Singh v. Superior Court, supra, to the effect that the clause in section 67 of the Penal Code that every officer who gives or offers any bribe to ‘any executive officer of this state,’ is synonymous with saying that every person who gives or offers any bribe to ‘any executive officer in this state,’ was pure dictum and not sound law.

‘Of’ and ‘in’ are not interchangeable in their meaning. An examination of Webster's New International Dictionary, 2d Edition, 1953, Unabridged, page 1689, discloses that ‘of’ is not in a single instance approved as synonymous with the word ‘in.’ The lack of such approval is emphasized by the designation as archaic and obsolete where the word at one time had been used in place of ‘in’ in the phrase ‘to fail of’ a matter. Thus it is apparent that the rule stated in Penal Code, section 7, subdivision 16, supra, is not followed if we say that the word ‘of’ in section 67 is interchangeable with the word ‘in.’

The court in the Singh case in its dictum permitted itself to presume what the Legislature intended in writing the statute, instead of following the clear language of the statute as it should have done.

In Seaboard Acceptance Corp. v. Shay, 214 Cal. 361, 365, 5 P.2d 882, 884, the correct rule is stated thus:

‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court is limited to interpreting the statute, and such interpretation must be based on the language used.’ (Italics added.)

The dictum in the Singh case likewise violates the requirement in section 1858 of the Code of Civil Procedure, which declares that the office of the judge is not to insert what has been omitted or to omit what has been inserted.

Though the foregoing reasoning is most potent it has been held invalid so far as the District Court of Appeal is concerned by the ruling in People v. Mathews, 124 Cal.App.2d 67, 268 P.2d 29, 30, wherein the court held that the phrase in section 67 of the Penal Code reading ‘any executive officer of this state’ means in fact ‘any executive officer in this state’. In the Mathews case, Mr. Justice Doran dissents, saying, 124 Cal.App.2d at page 70, 268 P.2d 29, at page 31, ‘The opinion in the Singh case, by changing the preposition ‘of’ to ‘in’, in judicial legislation.

‘Although in the Finkelstin case [People v. Finkelstein, 98 Cal.App.2d 545, 220 P.2d 934] the Supreme Court denied a petition for a hearing, that is not conclusive. The case is not in point. In my opinion, inasmuch as the City of Los Angeles is a chartered city, the police officer is not an ‘executive officer of this state’ within the meaning of the section of the code relied upon by respondent. A police officer of the City of Los Angeles is a civil service employee and is in fact and in law an ‘employee’ within the meaning and application of section 67 1/212 of the Penal Code. The reason for the two sections is obvious.'

A petition for a hearing by the Supreme Court was denied in People v. Mathews, supra. Therefore we are bound by the rule announced in such decision and must hold that section 67 of the Penal Code is applicable to defendant in this case. (Bridges v. Fisk, 53 Cal.App. 117, 122, 200 P. 71; People v. Whitaker, 68 Cal.App. 7, 11, 228 P. 376; see People v. Rowland, 19 Cal.App.2d 540, 542, 65 P.2d 1333; Hoyt v. Board of Civil Service Com'rs, 21 Cal.2d 399, 401, 132 P.2d 804.)



FOOTNOTE.  Section 995 of the Penal Code reads thus:‘[When indictment or information must be set aside.] The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:‘If it be an indictment:‘1. Where it is not found, endorsed, and presented as prescribed in this code.‘2. That the defendant has been indicted without reasonable or probable cause.‘If it be an information:‘1. That before the filing thereof the defendant had not been legally committed by a magistrate.‘2. That the defendant had been committed without reasonable or probable cause.’

McCOMB, Justice.

FOX, J., concurs. MOORE, P. J., concurs in the judgment.

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