State ex rel. Broatch v. Moores

73 N.W. 299, 52 Neb. 770, 1897 Neb. LEXIS 186

Opinions

Norval, J.

This was an application by the state, on the relation of William J. Broatch, for a writ of quo warranto against Prank E. Moores to test the right of the respondent to hold the office of mayor of the city of Omaha. The averments of the application or information, so far as they are material to an understanding of the questions involved, may be summarized as follows:

1. That at an election duly held in the city of Omaha in November, 1895, relator, being qualified and eligible thereto under the constitution and laws of the state, was elected mayor of said city for the term of two years commencing on the first Tuesday in January, 1896, and until his successor was elected and qualified; that he duly qualified and entered upon the duties of the office, and has since discharged the functions thereof.

2. That under and by virtue of an act of the legislature of 1897, being chapter 12a, Compiled Statutes, 1897, at an election held in said city on the 20th day of April last, the respondent received a majority of the votes cast thereat for the said office of mayor, and the canvassing-board declared him elected for the term of three years from and after the 10th day of May, 1897; that respondent thereupon qualified by giving the bond, and taking and subscribing the oath of office as required by said law, and claims the right, authority, and power to exercise and discharge the duties of mayor of said city, and is usurping and invading the functions of said office.

3. That for eight years ending in January, 1896, respondent was the duly elected, qualified, and acting clerk of the district court of Douglas county, and as such clerk, during said period, he collected and received in fines and penalties imposed by said court upon divers persons aggregating the amount of $2,061.20, which, prior to May 9, 1897, he had failed and refused to account for and pay over to his successor in office, or to the county treasurer, but applied the same to his own use and benefit; that on said day respondent paid to the county treasurer of said amount the sum of $1,818.83, but has neglected and refused to pay at any time the remaining sum of $242.37.

4. That respondent as such clerk collected in cases pending or disposed of in said court certain witness fees aggregating $7,283.35, which remained in his hands for six months uncalled for, and likewise collected certain ádvance fees and lower court costs in the aggregate sum of $2,363.45, which remained in his hands for two years after the payment thereof uncalled for; that he has failed, neglected, and refused to pay the last two amounts, or any part thereof, to his successor in office, to the treasurer of Douglas county, or to any other person, but has converted the same to his own use; that by reason of the facts above set forth respondent was in default as collector and custodian of public money, which rendered him ineligible to the office of mayor, and his election thereto is null and void, and that he is wrongfully usurping and invading said office.

5. That respondent took possession of the office of mayor against the protest of the relator, and that the latter has not abandoned said office or any claim thereto.

The answer filed to the information, after admitting the election and qualification of the relator and respondent, respectively, to the office of mayor as above set forth, and that respondent was clerk of the district court of Douglas county from January, 1888, to January, 1896, denies that respondent is unlawfully usurping the office of mayor, or that as collector and custodian of public funds he was in default or is ineligible to said office; end alleges, substantially, that during his incumbency of the office of clerk of the district court he collected altogether, in fines and penalties, the sum of $6,027.56, and has paid over to the county treasurer the entire amount thereof; that it was his bona fide intention and purpose at all times to pay all the fines and penalties by him collected within a reasonable time thereafter to the proper officer, and accordingly did, from time to time, pay to the county treasurer amounts aggregating the sum of $4,208.73; and as an excuse for not paying to said treasurer before the expiration of respondent’s term as clerk of the district court, the difference between said amounts, to-wit, the sum of $1,818.83, the answer avers, in effect, that the items aggregating the sum of $364 in docket 7, at pages 115, 183, 185, and 186, were collected, if at all, by respondent’s deputy without respondent’s knowledge, and he has no record whatever of said money other than unsigned receipts upon the docket in the handwriting of said deputy, and is of the opinion and firmly believes, and has always believed, and so alleges the. fact to be, that he never received said sum or any part thereof; that the items aggregating the sum of $200 in docket 32, page 226, were paid to such deputy during a serious illness of respondent in the month of April, 1895, the same being the last year of his term of district clerk; that his attention was at no time called to said sums, nor did he know that the same, or any part thereof, had ever been paid into his office; that if he had known of same being paid he would have turned the money into the county treasury; that as to the sum of $500, being payment of fine as shown in docket 46, page 232, respondent alleges he was notified by the proper officers and attorney of the city of Omaha, and of the board of education, not to pay said fine to the county treasurer, but to hold the same for said board, and was likewise notified by the county attorney of Douglas county not to pay the amount of said fine to the city treasurer, but to hold the same for the school fund of said county, and in pursuance of and in accordance with the agreement of the respective attorneys representing, and authorized to represent, the said county, the city of Omaha, and the board of education, respondent held said money until about the 9th day of May, 1897, when he was released from said obligation to hold said fine or to pay the same to the city treasurer by the attorney representing said city and board of education in said matter. Whereupon respondent forthwith paid the full amount of said fine to the county treasurer, as he was at all times ready and willing to do', but for the contentions and agreements of said parties; that the various other items of fines which go to make up the sum of $1,818.83 were paid to respondent on different dates in small amounts, none larger than $100, which were receipted for by him upon the appearance docket; that from time to time he made report to the county commissioners of moneys collected by him for the county, and paid the same to the county treasurer, and intended to include all of those sums, but the same were overlooked and could not with reasonable diligence have been discovered prior to about the date of the payment thereof to the county treasurer; that during the last year of his term as clerk of the district court he had constantly in his employ a person whom he supposed to be a skilled accountant, whose sole duty it was to check up all the dockets and records of said office and report to respondent all moneys received by the latter for the county and for individuals, which had not theretofore been paid over; that during said year respondent made payments of various sums on account of fines as reported by accountant; that at the close of respondent’s term said accountant made a purported final tabulated report, which, upon examination, was found to be so imperfect, incorrect, and unreliable that it was put aside as worthless, and a second accountant was engaged to prepare a correct statement; that in accordance with his report respondent, on the 9th day of May, 1897, paid to said treasurer said sum of $1,818.83, which included all the fines collected and not paid over during his said term; that the duties of clerk of the district court required the keeping of a large number of accounts and extensive records, the handling of large sums of money, and press of business caused the said items to be overlooked; that respondent has had at all times the necessary funds, and has been ready, willing, and able to pay over to the county treasurer said moneys, and did pay the same as rapidly as the same could be ascertained. Denies that at any time he willfully, knowingly, or unlawfully withheld any part of said funds or converted the same to his own use. The answer admits the collection and retention of certain unclaimed witness fees and costs, and avers as a justification for his failure to turn the same into the treasury of the county that the law requiring such payment to be made is unconstitutional and void. To the answer a general demurrer has been interposed by relator, and the cause has been submitted for determination.,

The respondent insists that the information does not state sufficient facts to authorize the issuance of a writ of ouster against him, which proposition we are called upon to consider, since it is a well settled rule of pleading in this state that a demurrer to an answer searches the entire record, and judgment should go against the party whose pleading was first defective in substance. (Hower v. Aultman, 27 Neb., 251; Oakley v. Valley County, 40 Neb., 400; Hawthorne v. State, 45 Neb., 871; West Point Water-Power & Land Improvement Co. v. State, 49 Neb., 223.) Under and by virtue of section 11, chapter 12a, Compiled Statutes, 1895, a person elected mayor of a city of the metropolitan class is entitled to the office during the term for which he was chosen, “and until his successor shall be elected and qualified.” Substantially the same provision is contained in chapter 10, Laws, 1897. The relator contends that under section 2, article 14, of the state constitution, respondent was ineligible to the office of mayor of the city of Omaha, and hence his election was void, and that by force of the statutes relator is entitled to hold over, by reason of the non-election of a successor, and to discharge the duties and receive the emoluments of said office. Said section of the constitution declares: “Any person who is in default as collector and custodian of public money or property shall not be eligible to any office of trust or profit under the constitution or laws of this state; nor shall any person convicted of felony be eligible to office unless he shall have been restored to civil rights.” It is strenuously urged by respondent that the inhibition against holding office contained in the first clause of the foregoing provision is not applicable to the office of mayor of the city of Omaha for the reason such position is not an office of trust or profit under the constitution or laws of the state. It is perfectly plain ‘that the argument adduced in support of this contention is fallacious. It is true the office of mayor is not created by the constitution, and it is likewise obvious that the section of that instrument already quoted does not confine the disqualification from holding office to constitutional officers alone, but such inhibition extends as well to every office of profit and trust created by the state legislature. ' That the office of mayor of the city of Omaha is one of profit and trust there is no room to doubt. By law such officer is given a salary of $2,500 per annum, a sum equal to that received by a single judge of this court, besides he is authorized to receive an additional compensation of $800 as ex officio member and chairman of the board of fire and police commissioners of the city. The salary attached to the office, in connection with the numerous important duties and powers which the law confers upon the. mayor of such city, unquestionably constitutes the mayoralty an office of trust and profit. Such office is not created by federal law, or any municipal ordinance, but was established and brought into existence solely by an act of the state legislature, which declares the term of office, designates the amount of salary, and prescribes the powers and duties of the position. Giving the language of the constitution its plain and ordinary meaning, it is very clear that the office of mayor of the city of Omaha is an office of profit and trust under the laws of the state.

But the contention of respondent, if we correctly understand his counsel, is that the constitutional provision invoked by relator embraces merely state officers or “offices under the state.’- To so construe the fundamental law is to ignore not only the grammatical construction of the language used by the framers, but as well the plain and ordinary signification of the words. The office of mayor of the city of Omaha is an office under the state. The duties of such officer are not merely municipal, but the law creating the position has imposed upon him many duties and functions which, ' pertain to state affairs, and the enforcement of the general laws of the commonwealth, many instances of which are pointed out on page 10 of relator’s brief, such as the mayor is made conservator of the peace, has the power to issue a posse eomitatus, to order the suppression of riots and breaches of the peace, to remit fines and costs imposed by the police judge for offenses arising under the laws of the state, and, in cases of urgency or necessity, to exercise the functions of an examining or committing magistrate. Such powers derived from a positive state statute, although also clothed with municipal functions, constitute the office of mayor of a metropolitan city an office under the state. An able and exhaustive opinion upon the question was recently rendered by the supreme court of Michigan in Attorney General v. Common Council, 70 N. W. Rep. [Mich.], 450, where, after a review" of the authorities upon the subject, it was held that, the office of mayor of the city of Detroit is an office under the state, within section 15, article 5, of the constitution, which declares: “No member of congress, nor any other person holding office under the United States or this state, shall execute the office of governor.” To the same' purport are Montgomery v. State, 107 Ala., 372; Shelby v. Alcorn, 36 Miss., 273; State v. Valle, 41 Mo., 31; State v. Stanley, 66 N. Car., 59; Ogden v. Raymond, 22 Conn., 379; Chambers v. State, 127 Ind., 365; Burch v. Hardwicke, 30 Gratt. [Va.], 24. Many other authorities might be added in line with those cited if it were deemed necessary. There are likewise decisions which seemingly lay down a contrary doctrine; some of them are mentioned in the brief of respondent.

A mere reading of section 2, article 14, of the constitution, in connection with the act creating metropolita!} cities, leaves no doubt that the office of mayor of the city of Omaha is an office under the laws of the state, since the officer derives his powers solely from, and exercises them in obedience to, a state statute, which imposes duties upon such officer in relation to state affairs, as contradistinguishable from municipal functions. The inhibition against holding public office contained in the first clause of the section of the constitution under consideration extends to “any person who is in default as collector and custodian of public money and property.” The question arises whether the respondent, under this provision, was disqualified from being elected to, or holding the office of, mayor. The information charges, and the answer admits to be true, that as clerk of the district court he received certain moneys in payment of witness fees, advanced and lower court costs, which he has failed to pay over to his successor in office or the county treasurer, although the same remained uncalled for in his hands for more than two years from such pay"ment. Relator insists that it was the duty of the respondent to pay to the county treasurer all such unclaimed fees and costs, and this contention is predicated upon plain and positive statutory requirements. By section 39, chapter 28, Compiled Statutes, it is made the duty of each clerk of the district court, county judge, and justice' of the peace to report to the county commissioners of the respective counties quarterly all witness fees which have been received in their, or either of their, hands uncalled for by the parties thereto for the period of six months after the same have been paid; and within twenty days after the filing of such report the county commissioners are required to publish a notice thereof for two weeks in a weekly newspaper of general circulation published in the county. Section 40 declares: “All fees remaining in the hands of such district clerk, county judge, or justice of the peace for the period of six months after the same has been reported by them to the county commissioners shall be paid over to the treasurer of the county, who shall receipt in duplicate for the same, one of which receipts shall be filed with the county clerk, and all such fees shall be credited to the common school fund of the county.” Section 1, article 2, chapter 80, Compiled Statutes, provides: “That all unclaimed fees and costs which have been paid and not demanded for two years shall be paid in by the justice or clerk of any court under whose control such unclaimed fees and costs may be to the school fund of the respective county where such money belongs.” Under the provisions of the foregoing sections, if they are valid and binding, it was the bounden duty of the respondent to pay to the county treasurer all unclaimed witness fees and costs in his hands for the benefit of the school fund. It is argued that said sections of the statute are inimical to sections 3 and 21 of article 1 of the constitution, which are as follows:

“Section 3. No person shall be deprived of life, liberty, or property without due process of law.

“Section 21. The property of no person shall be taken or damaged for public use without just compensation therefor.”

That the unclaimed witness fees and costs retained by the respondent are property, in a legal and constitutional sense, every one must admit, and the fundamental law, therefore, forbids that the witness or person for whose benefit such fees and costs were paid shall be deprived of Ms right to the same except by due process of law, or that such fees or costs should be appropriated by the public without adequate compensation therefor being made. The legislature, in violation of the foregoing provisions of the Bill of Rights, has arbitrarily, without a hearing, or the making of any provision for one, and without any remuneration whatever, attempted to appropriate all unclaimed witness fees and costs to the support of the common schools. This cannot be lawfully done, no more than the legislature could by statute require the payment into the county treasury, for the use of the school fund, all moneys received by the clerk of the district court upon judgments which have not been demanded of such clerk within a specified period, and no person would have the temerity to contend that such a law would be valid. The statute before us might be upheld had it merely made provision for the payment into the county treasury for .safe-keeping the unclaimed fees and costs until such time as the same shall be demanded by the parties to whom the same are due. But no provision whatever is made in the law for the recovery of the funds by the person entitled thereto. The legislature has attempted, in violation of the constitution, to appropriate to the use of the public without compensation all unclaimed costs and fees. Such legislation is clearly obnoxious to sections 3 and 21 of the bill of lights, and therefore is unconstitutional and void. This conclusion is sustained by the principle underlying the following authorities, and no case sustaining a contrary doctrine has come under the observation of the writer. (Turner v. Althaus, 6 Neb., 54; Johnson v. Hudson, 96 Tenn., 630; Bank of Louisville v. Board of Trustees of Public Schools, 83 Ky., 219; Varden v. Mount, 78 Ky., 86; Marshall v. McDaniel, 12 Bush [Ky.], 378; Gilman v. Tucker, 128 N. Y., 190; Ames v. Port Huron Log Driving & Booming Co., 11 Mich., 139; Rockwell v. Nearing, 35 N. Y., 302.) The legislation in question being invalid, the moneys received by the respondent on account of fees and costs are not public funds, and he was not required to pay the same to the treasurer of Douglas county. Had he done so, it would not have exonerated him from personal liability to pay the same to the various witnesses or persons lawfully entitled thereto. The failure of the respondent to pay to the county the unclaimed fees and costs did not render him ineligible to the office of mayor.

In the foregoing discussion we have not overlooked sections 28 and 29, chapter 28, Compiled Statutes. They authorize the taxation as costs of a jury fee of $6 in each case of a conviction in a criminal prosecution, and in civil cases a jury fee of f5, and a fee of $1 for each trial by the court, and all of which items of costs, when collected, are required to be paid into the county treasury for the use of the county. Unquestionably costs taxed and collected under the provisions of said sections are public moneys within the purview of the constitution. But those sections have no application here, inasmuch as tiie information does not allege that the respondent has collected and retained any funds whatever on account of jury or trial fees, while, on the other hand, it is specifically charged that certain unclaimed witness fees, advanced and lower court costs have been received by. the respondent and converted to .his own use. Whether a clerk of the district court, as to fines received by him. in satisfaction of sentences imposed in his court, is a, collector and custodian of public money in a constitutional sense is not raised in the answer of the respondent, nor discussed in the briefs, hence we would be justified in ignoring the question at this time, but we shall not do so. The word “collector” is defined in the Standard Dictionary as “an official who collects or receives taxes, duties, or other public revenues.” To constitute an official a collector he need not possess the power to enforce payment by legal process. It is sufficient if he is authorized by law to receive the money for and on behalf of the public. A “collector and custodian,” within the meaning of the section of the constitution under consideration, embraces every person who is given the legal power to collect, demand, or receive taxes or other public dues or moneys, and retain the same in his possession for any time however short ox; long. And this definition is sufficiently comprehensive to include the clerk of the district court as to moneys paid him on account of fines. This court has held, independent of any statutory provision, that a clerk of the district court is authorized to receive moneys upon a judgment in his office, and that a payment to him will bind the judgment creditor. (McDonald v. Atkins, 13 Neb., 568; Moore v. Boyer, 52 Neb., 446.) By section 533 of the Criminal Code all moneys due upon any judgment for fines, costs, or forfeited recognizance are required to be paid to the magistrate or clerk of the court where the judgment is rendered. And the next section requires that such magistrate or clerk of court shall pay such money to the county treasurer, except as otherwise expressly provided, within ten days from the time of receiving the same. All fines and penalties imposed under the general laws of the state, by section 5, article 8, of the constitution, are declared to belong to the county school fund, and are required to be paid to the county where the same were imposed. "That the fines and penalties collected by the respondent were and are public moneys cannot be successfully disputed, and it is just as plain that it was his duty to receive and pay the same over to the proper officer. He was a collector of the money in a constitutional sense, and when he received it he was the legal custodian thereof, at least for the period of ten days, in case he desired to retain possession of the money for that length of time. It was the intention of the framers of the constitution, and it is with sufficient clearness so expressed in the instrument, that every person who by virtue of law collects or receives public funds of whatever character and makes default in paying the same over to the proper authorities should be ineligible to any office created by the constitution or statutes of this state. The provision is a wholesome one, and should be enforced in no captious spirit.

The information discloses that the respondent as clerk of the district court collected and received in fines and penalties, which he retained in his hands for more than one year after his term of said office expired, and had failed to pay the same to the officer entitled thereto at the date of his election as mayor, the sum of $2,061.20, and that $242.37 of said amount yet remains unpaid, and has been by the respondent converted to his own use. The information therefore shows that he is at this time in default as collector and custodian of public funds, at least to the amount last named, and if the matters pleaded therein are true, he is ineligible to the office of mayor of the city of Omaha. This much as regards the sufficiency of the information. It states a cause of action.

It remains to be seen whether the facts set up in the answer relating to the moneys received by the respondent from fines and penalties constitute a defense to this proceeding. It avers that every dollar received by him from that source has been fully accounted for and paid over to the county treasurer, and all excepting the sum of $1,818.83 was so paid prior to respondent’s election as mayor, and • the last named amount was paid by him before entering into the duties of said office. If the term “eligible,” as used in section 2, article 14, of the constitution, refers alone to the capacity to hold, and not to' be elected and chosen to, an office, it is obvious that respondent does not come within the inhibition of said provision of the constitution. But respondent has not contended that if he was a defaulter at the time of his election he is eligible to hold the office in question, though all arrears were paid before he assumed the duties of mayor. Doubtless, the reason he has made no such contention here is that he regarded the question foreclosed against him by the decisions in State v. McMil len, 23 Neb., 385; State v. Boyd, 31 Neb., 682. In each of those cases it was ruled that the word “eligible” referred to the time of election, and not to the period of entering upon the office. Perhaps those decisions may be explained away and distinguished upon the ground that they were based upon provisions unlike the section of the constitution now under consideration; but to hold that the disqualification has reference alone to the time of assuming the duties of public office is to disregard the etymology of the word “eligible.” The definition given it in the Standard Dictionary is “Capable of being chosen; qualified for selection or election. Pit for or worthy of-choice or adoption.” The word is similarly defined in the Century and other dictionaries. The term “eligible,” as employed in the constitution, should be given its plain and ordinary signification, and when so construed there is no escaping the conclusion that it means capable of being elected or chosen. Neither the framers of the constitution, nor the people in adopting it, intended to permit a person to be elected to a public office who, at the time, was disqualified from entering upon the duties thereof, and run the risk of the removal of the disability between the day of election and the commencement of the official term. One who is in default as collector and custodian of public money or property is disqualified from being legally elected to any office of profit or trust under the constitution or laws of the state. This is the plain and natural construction of the language of the constitution. These views find abundant support in the authorities. (See Territory v. Smith, 3 Minn., 240; Taylor v. Sullivan, 45 Minn., 309; State v. Clarke, 3 Nev., 566; Searcy v. Grow, 15 Cal., 117; People v. Leonard, 73 Cal., 230; Drew v. Rogers, 34 Pac. Rep. [Cal.], 1081; In re Corliss, 11 R. I., 638; Carson v. McPhetridge, 15 Ind., 327; Jeffries v. Rowe, 63 Ind., 592; Hill v. Territory, 7 Pac. Rep. [Wash.], 63.) There is a division in the authorities upon the subject, but the ones cited above and those in line therewith, are believed to be sustained by the better logic. If respondent were in default at the time of his election as mayor, his disability to hold the office was not removed merely by the subsequent payment of the money into the county treasury. The sufficiency of the answer therefore, to a considerable extent, must depend upon the construction that shall be placed upon the word “default” employed in said section 2, article 14, of the constitution. More than one definition is given the word “default” in the dictionaries. Thus, in the Standard it is defined as “1. A failure in the performance or fulfillment of an obligation; neglect or omission of a legal requirement. * * * 3. A wrong action; fault; transgression.” While in Anderson’s Law Dictionary the same word is defined as “Something wrongful; some omission to do that which ought to have been done. Nonperformance of a duty; as, the nonpayment of money due.” And the' same authority gives this definition to the word “defaulter”: “One whose peculations have brought him within the cognizance of the law, to the extent, at least, of excluding him from a public trust.”

Counsel for relator argued that the mere failure of the respondent to pay money at the time required by law. constituted a default, whatever may have been the reasons for nonpayment. In one sense this is true. Good motives, intentions, or purposes most certainly would not exonerate him from a civil liability on his bond. But that is not the test to be applied here. The provision of the constitution is penal in its nature, and it was not intended by the framers thereof that a person should be disqualified from holding a public office merely because he might, through no fault of his own, be liable in a civil action as a collector and custodian of public funds. To render one ineligible there must have existed such willful conduct, omission of duty, or wrongful action, that the intent to misappropriate money or property belonging to the public is fairly infer-able therefrom. If a civil liability is the crucial cri terion to be applied here, then every county treasurer comes within the inhibition of the constitution who has failed to pay over public money of which he has been robbed, or which while in his hands was destroyed by fire, or who failed to pay to his successor the time amount with which he was chargeable on account of an error or mistake accidently made by his deputy in adding a column of figures. In each of the supposed cases the treasurer would be liable in a civil action for the money, but that would not necessarily render him in default in a constitutional sense. “In the constitutional disqualification to hold office is the idea not only of debt, but with default with dishonor — not only that the collector owes, but that he owes the money collected and in his hands — not only that he is a debtor, but defaulter. * * * qqie evident object and dominant idea of the framers of the Constitution was to exclude from office defaulting tax collectors and other public functionaries; they had no purpose or intention of making the eligibility of the citizen to hold office depend upon mere pecuniary liability to the state.” (State v. Sheriff, 45 La. Ann., 163.)

In State v. Kountze, 12 Mo. App., 511, the defendant was convicted of the offense of publishing a libel in these words: “Captain John was elected harbor-master of St. Louis, and could not qualify because he was a defaulter.” The court, in the opinion, used the following apposite language: “It is objected that the word ‘defaulter’ has many meanings which impute nothing criminal, and that, therefore, the indictment is defective in not showing, by innuendo or otherwise, that the word was used and understood in a sense implying crime. There are many words in our language which may convey crime, or something very different, according to the connection in which they appear. ‘You have stolen my heart;’ implies nothing more than a certain ascendency acquired over the speaker’s affections, while, ‘You have stolen my purse;’ as clearly imputes a larceny. When the term defaulter is employed to explain a disqualification for holding a public office, but one meaning can attach to it in the minds of all persons of ordinary intelligence, who have a common familiarity with the English language and its most popular idioms. No one will naturally connect it with a mere delinquency as to minor social obligations, or the payment of ordinary debts. The universal application of the word in that connection is matter for judicial notice. It describes one whose peculations have brought him within the cognizance of the law, to the extent, at least, of excluding him from a public trust. So to describe a citizen who is free from that stigma, is libelous.”

People v. Hamilton, 24 Ill. App., 609, is quite in point here. That was an information in the nature of quo loarranto to test the right of the respondents Hamilton and Grogan, respectively, to hold the office of trustee of the village of Ashland. Each at the time of his election owed a village tax, which fact it was claimed constituted a disqualification to hold the office, under a statute providing that “no person shall be eligible to the office of Alderman unless * * nor shall he be eligible if he is in arrears in the payment of any tax or liability to the city.” Hamilton p'aid fl.44, the amount of his tax, after his election and before assuming the duties of the office. Grogan owed the sum of 44 cents for village tax, which was not paid until after he had entered upon the office. Prior to his election, however, he wrote to the sheriff, as tax collector of the county, requesting the amount of his taxes, who in reply sent a statement which did not include said 44 cents .for taxes on personal property. Grogan paid the sum stated by the sheriff prior to the election, and was unaware of the amount of said personal tax before election else he would have paid it with the other. The court held Grogan was not in arrears within the meaning of the law, saying: “It was never intended that the accidental omission to pay the trifling sum of less than a half dollar, where there had been an honest intent and effort to pay all that was dne, should exclude a citizen who was the choice of the people from holding the position to which he was elected. Such a case is not within the spirit, and hardly within the letter, of the law.”

The section of the constitution under consideration has made two classes ineligible to public office under the constitution or laws. Those who are defaulters, or in default as collector and custodian of public money or property, and those who have been convicted of a felony, but have not been restored to civil rights. As to the first class, the disability to hold office is not made permanent, but is temporary, so long- merely as the person remains a defaulter, and ceases the moment he has fully accounted for and paid over the public funds or delivered the property. To render one in that class ineligible .it is not essential that it should have been judicially ascertained that he was in default. But there must exist, in addition to a liability in a civil action, a willful omission to account and pay over Avith a corrupt intention, or such a flagrant disregard of duty as to justify the inference that his conduct Avas willful and corrupt. Testing the answer by this rule, do the a Averments therein contained, if true, disclose that in a constitutional sense respondent was a defaulter at the date of his election to the office of mayor? The statute requires him to account for and pay over to the county all fines within ten days from his receipt thereof. This proAvision is mandatory, and that respondent did not comply therewith is admitted. But that alone did not render him ineligible to office, although such fact may be properly considered in determining whether the intention to misappropriate the funds existed. If the constitution permanently disqualifies the defaulter from holding-office, then the willful failure to pay over the money within the time designated by law would render him ineligible to the office of mayor. But, as we have already seen, one may purge himself of the default at any time by making payment, and the authorities cited in the brief of relator so hold. The answer discloses that prior to respondent’s election he had paid to the county treasurer all the fines and penalties received by him, except the sum of $1,818.83. If this last named amount, or any portion thereof, was intentionally, willfully, or corruptly retained by respondent, he was ineligible to the office in question. Of the items which go to make up the said sum, the answer states, in effect, that $364 were never received by respondent or his deputy; that the item of $200 was paid during the serious illness of respondent to his deputy, and that the principal was unaware of such payment, or the money would have been covered into the treasury; and that the further sum of $500 was retained and held upon the agreement,, request, and demand of the county attorney and the attorney for the city of Omaha and the board of education that the same be held pending a controversy over the ownership of the money, and that respondent was at all times ready and willing to pay the same to the county, and would have done so but for such contention and agreement. Those matters pleaded were sufficient to relieve him from being a defaulter as to such items. It is undoubtedly true that the alleged agreement for the detention of the said sum of $500 would not have constituted a defense to a civil action brought for the recovery of the money, but that is not the test for determining whether respondent was a defaulter or not. If in good faith he retained the $500 under the circumstances pleaded, and did not convert the same to his own use, then it cannot be said that he acted corruptly in not paying the same over to the county treasurer.

The only doubt the writer has entertained as to the sufficiency of this answer has been with reference to the excuse set up for not having paid over before election the remainder of said sum of $1,818.83, to-wit, $754.83. It is admitted that the items which go to make up said sum were paid to the respondent personally in sums not exceeding' $1040, and that he overlooked snch payments until after the expiration of his term, and with reasonable diligence the same could not have been discovered by him prior to the date of the payment thereof to the county. If there were no other averments contained in the answer we should hesitate before deciding that the pleading is sufficient. But as it is positively alleged, and by the demurrer admitted to be true, that it was never the intention of the respondent to, and he did not in fact, appropriate any portion of the funds collected to his own use, and that he did not willfully or knowingly withold any portion thereof, but paid the same to the county treasurer as rapidly and as soon as he was cognizant that he had received the money, we are constrained to the opinion that the demurrer to the answer should be overruled, with leave to the relator to reply, as he has signified a desire so to do.

Demurrer to answer overruled.

Post, C. J., and Ryan, C., concurring.