SULLIVAN, J.
This action was commenced under the provisions of section 7459 of the Revised Statutes, which is as follows : “When an information in writing verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or- some other subsequent day, mot more than twenty days from that on which the information was presented, must proceed to hear, in summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for $500 in favor of the informer and such costs as are allowed in civil casesThe plaintiff (who is respondent here) filed his verified information in writing, .charging the appellant, who was then a county commissioner of Nez Perces county, with knowingly, willfully and corruptly collecting illegal fees to the .amount of $161.10, and of illegally collecting from said county -$100, which said defendant had advanced to one M. F. Gose, for his services as a lawyer, rendered in certain eases wherein .said county was interested. The information alleges that the defendant as county commissioner collected illegal fees (1) for his services in making inspection of roads; (2) for attending court as a witness; (3) for $100 advanced by him to employ an attorney; (4) for collecting mileage to which he was not entitled. The defendant answered, admitting that he had collected the various sums alleged to have been collected by him, but denied that he had willfully or corruptly collected said sums knowing them to be illegal charges against the county.
[584]*584This cause was once before this court (see Ponting v. Isaman, ante, p. 283, 62 Pac. 680), and was remanded to the court below for trial. Thereafter the cause came on for trial. Witnesses were examined on behalf of both the plaintiff and defendant, and documentary evidence introduced, and after argument of counsel, the court, being fully advised in the premises, filed' findings of fact and conclusions of law, and entered judgment ousting the appellant from his said office, and also entered judgment against him for $500 in favor of the plaintiff, informant, as provided by said section 7459. This appeal is from the judgment on the judgment-roll alone, which contains no bill of exceptions, nor any part of the evidence introduced on the trial.
Two points are relied upon for a reversal of the judgment, to-wit: 1. That the cause was tried by the judge at chambers* and that the judge had no jurisdiction to try the same; and 2. That, the judgment is not supported by the findings.
On the first point the record contains certain affidavits showing that said cause was tried by the judge at chambers. The-record and judgment, however, recite that the cause was tried by the court without a jury, and on this appeal we are bound by the record, "and for that reason hold that the cause was tried by the court, and not by the judge at chambers.
The second assignment of error is that the judgment is not sustained by the findings. The court finds that the appellant, in making the charges complained of against the county, for services rendered in examining the roads and bridges in his district, and the expenses of team hire connected therewith, honestly believed that it was his duty as such commissioner to perform such services, and that he honestly believed, when making said charges and collecting the same from the county, that he was-legally entitled thereto. The court further finds that all of the-charges and collections made by the appellant for viewing roads, for work upon roads, and all charges made for services on public-roads, were, for services actually performed, and that prior to-performing such services the board of county commissioners, of which this appellant was a member, required the opinion of the county attorney (who was by law made the legal adviser of said board) as to the duty of said commissioners in viewing pro[585]*585posed roads, and roads being constructed, and that said board received the written opinion of said county attorney to the effect that it was their duty to perform such services in their respective districts, and that they were entitled to compensation therefor; that appellant relied upon the said opinion of the county attorney, and acted upon it in said matter, and from time to time performed such services in his district, and honestly believed that he was entitled to the amount charged and collected by him from the county at the time he charged and collected the same. The court also found that all of the illegal charges made for mileage were for miles actually traveled by appellant in going to and from the attendance upon public duties, and such acts as appellant honestly believed to be public duties, and that, such charges were made under the belief that the statute which formerly governed the compensation of commissioners had been decided by the supreme court of Idaho to be still in force to-that extent; that appellant made all such charges for mileage-while so believing, and that he honestly believed that he was-entitled to said mileage when he charged and collected the same.. The court also found that appellant had paid back to the treasurer of said Nez Perces county the said several sums mentioned in said findings as having been taken and received by him. The court thus found that the appellant was honest in the discharge of his duties and in making said charges against the county. In the enactment of said section 7459, we do not believe it was the intention to visit the severe penalty provided by said section when the officer acts in perfect good faith, and under an honest conviction that he is acting within the law, or for an honest, error of judgment when honestly acting under the advice of the legal adviser provided for him by law.
As to the $100 paid to Attorney Gose, the court found that, said board of commissioners had employed the said Gose to represent the county in some civil litigation in which said Nez Perces county was a party, and that appellant had, upon the demand of said Gose, at a time when said board was not in session, paid said Gose $100 for his services in said litigation, and at the next session of said board the appellant presented his claim against said county for the sum so advanced to Attorney Gose, [586]*586and said claim was allowed. It is contended that, by reason of the appellant having thus advanced for said county said $100, he must be removed from office, and mulcted in the sum of $500, do be paid to the informer. We are not inclined to sustain such an outrageous and unjust contention. The board had found it necessary to employ an attorney to protect the interest of their county, and had employed said Gose. When the board was not in session he demanded his fee, and appellant advanced it, trusting to the county to reimburse him therefor. Under the facts as found by the trial court in this matter, it would be most unjust and contrary to law to remove the appellant from office, and fine him in the sum of $500 or any sum whatever. This court held in Osborne v. Ravenscraft, 5 Idaho, 612, 51 Pac.
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SULLIVAN, J.
This action was commenced under the provisions of section 7459 of the Revised Statutes, which is as follows : “When an information in writing verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or- some other subsequent day, mot more than twenty days from that on which the information was presented, must proceed to hear, in summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for $500 in favor of the informer and such costs as are allowed in civil casesThe plaintiff (who is respondent here) filed his verified information in writing, .charging the appellant, who was then a county commissioner of Nez Perces county, with knowingly, willfully and corruptly collecting illegal fees to the .amount of $161.10, and of illegally collecting from said county -$100, which said defendant had advanced to one M. F. Gose, for his services as a lawyer, rendered in certain eases wherein .said county was interested. The information alleges that the defendant as county commissioner collected illegal fees (1) for his services in making inspection of roads; (2) for attending court as a witness; (3) for $100 advanced by him to employ an attorney; (4) for collecting mileage to which he was not entitled. The defendant answered, admitting that he had collected the various sums alleged to have been collected by him, but denied that he had willfully or corruptly collected said sums knowing them to be illegal charges against the county.
[584]*584This cause was once before this court (see Ponting v. Isaman, ante, p. 283, 62 Pac. 680), and was remanded to the court below for trial. Thereafter the cause came on for trial. Witnesses were examined on behalf of both the plaintiff and defendant, and documentary evidence introduced, and after argument of counsel, the court, being fully advised in the premises, filed' findings of fact and conclusions of law, and entered judgment ousting the appellant from his said office, and also entered judgment against him for $500 in favor of the plaintiff, informant, as provided by said section 7459. This appeal is from the judgment on the judgment-roll alone, which contains no bill of exceptions, nor any part of the evidence introduced on the trial.
Two points are relied upon for a reversal of the judgment, to-wit: 1. That the cause was tried by the judge at chambers* and that the judge had no jurisdiction to try the same; and 2. That, the judgment is not supported by the findings.
On the first point the record contains certain affidavits showing that said cause was tried by the judge at chambers. The-record and judgment, however, recite that the cause was tried by the court without a jury, and on this appeal we are bound by the record, "and for that reason hold that the cause was tried by the court, and not by the judge at chambers.
The second assignment of error is that the judgment is not sustained by the findings. The court finds that the appellant, in making the charges complained of against the county, for services rendered in examining the roads and bridges in his district, and the expenses of team hire connected therewith, honestly believed that it was his duty as such commissioner to perform such services, and that he honestly believed, when making said charges and collecting the same from the county, that he was-legally entitled thereto. The court further finds that all of the-charges and collections made by the appellant for viewing roads, for work upon roads, and all charges made for services on public-roads, were, for services actually performed, and that prior to-performing such services the board of county commissioners, of which this appellant was a member, required the opinion of the county attorney (who was by law made the legal adviser of said board) as to the duty of said commissioners in viewing pro[585]*585posed roads, and roads being constructed, and that said board received the written opinion of said county attorney to the effect that it was their duty to perform such services in their respective districts, and that they were entitled to compensation therefor; that appellant relied upon the said opinion of the county attorney, and acted upon it in said matter, and from time to time performed such services in his district, and honestly believed that he was entitled to the amount charged and collected by him from the county at the time he charged and collected the same. The court also found that all of the illegal charges made for mileage were for miles actually traveled by appellant in going to and from the attendance upon public duties, and such acts as appellant honestly believed to be public duties, and that, such charges were made under the belief that the statute which formerly governed the compensation of commissioners had been decided by the supreme court of Idaho to be still in force to-that extent; that appellant made all such charges for mileage-while so believing, and that he honestly believed that he was-entitled to said mileage when he charged and collected the same.. The court also found that appellant had paid back to the treasurer of said Nez Perces county the said several sums mentioned in said findings as having been taken and received by him. The court thus found that the appellant was honest in the discharge of his duties and in making said charges against the county. In the enactment of said section 7459, we do not believe it was the intention to visit the severe penalty provided by said section when the officer acts in perfect good faith, and under an honest conviction that he is acting within the law, or for an honest, error of judgment when honestly acting under the advice of the legal adviser provided for him by law.
As to the $100 paid to Attorney Gose, the court found that, said board of commissioners had employed the said Gose to represent the county in some civil litigation in which said Nez Perces county was a party, and that appellant had, upon the demand of said Gose, at a time when said board was not in session, paid said Gose $100 for his services in said litigation, and at the next session of said board the appellant presented his claim against said county for the sum so advanced to Attorney Gose, [586]*586and said claim was allowed. It is contended that, by reason of the appellant having thus advanced for said county said $100, he must be removed from office, and mulcted in the sum of $500, do be paid to the informer. We are not inclined to sustain such an outrageous and unjust contention. The board had found it necessary to employ an attorney to protect the interest of their county, and had employed said Gose. When the board was not in session he demanded his fee, and appellant advanced it, trusting to the county to reimburse him therefor. Under the facts as found by the trial court in this matter, it would be most unjust and contrary to law to remove the appellant from office, and fine him in the sum of $500 or any sum whatever. This court held in Osborne v. Ravenscraft, 5 Idaho, 612, 51 Pac. 618, that where a county was engaged in litigation, and the necessity for the present payment of a small amount of costs arose, and a member of the hoard of commissioners for the county advanced the required sum, the allowance of the sum so advanced by the board will not be reversed on appeal. The opinion in that case is by Mr. Justice Huston, and contain suggestions pertinent to the case under consideration.
It is contended that the provisions of section 1772 of the Be-vised Statutes, prohibits the presentation of the claim under consideration. Said section is as follows: “No county officer must, except for his own services, present any claim, account or demand for allowance against the county, or in any way advocate the relief asked on the claim or demand made by another. Any citizen and taxpayer of the county in which he resides may appear before the board and oppose the allowance of any claim or demand made against the county.” The appellant did not advance said $100 as a commissioner of said county, nor did he present his claim against the county as an officer of said county and we do not think that this claim comes within the. spirit of the provisions of said section.'
As to the charge of twelve dollars for two days’ attendance in court as a witness in the Yollmer Bank cases, the court found that the appellant did actually perform four days’ services as a witness in litigation between John P. Yollmer and Nez Perces county, in the district court of said county; and also found that [587]*587at the time said services were performed the appellant was chairman of the board of county commissioners, and, at the request of said court, was notified by the attorney representing the county to attend; that appellant was not subpoenaed as a witness, and intended, by said charge for two days, to obtain the amount per day allowed witnesses in civil cases; that said charge and collection was made under the honest belief that he had the right to so charge and collect; and that the three dollar charge was for a team furnished by appellant, and actually used by the commissioners to view certain important roads, when important changes were contemplated; and that said charge and collection was made with the honest belief that it was a legal charge. The facts as found by the court are very different from the facts in the case of Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111, and Miller v. Smith, ante, p. 204, 61 Pac. 824, as an examination of those cases will show. Some of the items charged for in those cases were similar to some in the ease at bar. This court had the evidence before it on those appeals, and it clearly showed that the defendants did not act honestly, believing that the charges made were legal claims against their respective counties; while in the ease at bar we have only the findings of fact to consider, and they clearly show that the appellant acted under the advice of the legal adviser of the board in making most of the charges complained of, and there is nothing to show that there was collusion between them in this matter, and the court expressly finds that there was not, by finding as follows, to wit: “That the defendant made all of such charges while so believing, and that he honestly believed he was entitled to said mileage when he charged and received the same.” It is also found that the money illegally collected has been paid to the treasurer of said county. While the return of the money is not, of itself, a defense to this action, it is a fact to be considered in this case in determining the good faith and honest belief of the appellant. It is not sufficient for a defendant in a proceeding of this kind to testify that he acted under an honest belief in making illegal charges. The whole transaction must be considered, and if his acts show that he acted honestly, and without intent to defraud his county, and especially when he [588]*588sought honestly the opinion of the legal adviser provided by law for him, we do not believe that it was the intent of the legislature, in enacting said section 7469, to inflict on him the stigma and severe penalty of ouster from his office and the payment of' a fine of $500. It is elementary that the findings of fact must support the judgment, and, if not, the judgment must be reversed. The judgment must be reversed, and it is so ordered,, and the cause remanded, with instructions to the trial court to-set aside said judgment, and to enter a judgment in favor of the-appellant dismissing said action, and for costs of this proceeding. Costs of this appeal are awarded to the appellant.
Stockslager, J., concurs.