In re Stow

(concurring). — I concur in the judgment. The failure of the defendants to have inserted in the agreement alleged to have been made by them with Warren, a clause to the effect that eight hours should constitute a legal day’s work thereunder, did not constitute a refusal or neglect upon the part of defendants “to perform the official duties pertaining” to the office of park commissioner, within the meaning of section 772 of the Penal Code. The official duties referred to in that section, and the non-performance of which is made cause for removal from office, relate to official duties, the failure to perform which may injuriously affect the rights of some one of the general public, and the performance of which duties is made mandatory upon the part of the officer in the interest of the public. The omission here charged is not of this nature, because, if it should be assumed that section 3245 of the Political Code has any reference whatever to such a contract as is mentioned in the accusation, the omission to insert in such agreement a provision that eight hours should constitute a legal day’s work thereunder can in nowise affect the rights of laborers employed by the contractor, and…

On January 6, 1892, William M. Willey filed in the superior court of the city and county of San Francisco an accusation in writing, verified by his own oath, alleg *588 ing that the respondents Stow, Hammond, and Austin, “ while acting in the official capacity of commissioners of the Golden Gate Park,” entered into and signed an agreement with one Charles Warren, on or about August 12, 1891, whereby said' Warren contracted to perform certain work upon and within said public park; that the said contract was not drawn in the form prescribed by law, in that the stipulation, directed by section 3245 of the Political Code, that eight hours should constitute a legal day’s work, was omitted therefrom ; aad that this omission was made wilfully and knowingly by respondents, because prior to the execution of the said contract ■ they had been petitioned, for and on behalf of the citizens for whose protection the said statute was enacted, to have the said stipulation inserted in all contracts let by them. The accusation also alleged that the respondents, “ while commissioners of said Golden Gate Park,” have compelled the laborers employed by them to work nine hours daily; and it concludes…