State v. Hastings

55 N.W. 774, 37 Neb. 96, 1893 Neb. LEXIS 178

• Court: Nebraska Supreme Court
• Decided: June 5, 1893
• Docket: Nos. 6090, 6091, 6092
• Status: Published

Opinions

Post, J.

This is an impeachment proceeding under the provisions of section 14, article 3, of the constitution. The articles of impeachment are three in number, containing in all twenty-one different specifications. However, before the final submission of the case, the first six and the twelfth specifications under article three were abandoned by the managers representing the legislature and do not call for notice in this opinion. The following is a summary of the several articles of impeachment and specifications there- • unáer:

Article 1. That respondents as members of the board of public lands and buildings did not “ faithfully and properly disburse” the sum of $40,000 appropriated to build a cell house at the penitentiary by the legislature of 1891.

Specification 1. That respondents as members of sard board carelessly, negligently, and willfully appointed. William H. Dorgan superintendent and agent to buy material and superintend the construction of the cell house, knowing that he was the agent of Mosher, the prison contractor, whereby said Dorgan charged the state $1 per day, for convict labor on the said cell house, which could have, been procured for forty cents per day, whereby the state was defrauded.

Specification 2. The respondents as members of said board placed in the hands of Dorgan, as agent, large sums, of money in advance of payments made by him and without adequate security and without assurance that the same would be expended for the benefit of the state, whereby the. state was defrauded.

Specification 3. That Dorgan purchased stone and other material at rates exorbitant and beyond what the same could have been purchased for in open market and that he returned false and fraudulent accounts charging these excessive prices and for excessive quantities and that the respondents as members of the board negligently, willfully, and corruptly accepted and audited said accounts, whereby the state was defrauded.

Specification 4. That Dorgan used about $232 of said, money for labor and material, for the use of Mosher, and which did not go into the cell house, and the respondents as members of said board negligently, willfully, and corruptly accepted vouchers therefor, knowing the same had not been, used in the cell house, whereby the state was defrauded.

Specification 5. That Dorgan charged for labor of convicts which had not been performed, and respondents as members of the board negligently, willfully, and corruptly audited and allowed his accounts, whereby the state was defrauded.

Specification 6. That in Dorgan’s account were various items fraudulently charged and no vouchers therefor, and which respondents as members of said board negligently, willfully, and corruptly audited, and whereby the state was defrauded.

Specification 7. That Dorgan was entrusted with money to expend and disburse according to his own judgment, and that after Dorgan was superseded by Hopkins, his successor, the board and respondents, as members thereof, willfully, carelessly, and negligently failed to require a settlement and accounting with him, Dorgan.

Article 2. That respondents, as members of the board of public lands and buildings, unlawfully, willfully, and corruptly received and misappropriated to their own use moneys of the state which came to them as members of the board.

Specification 1. That respondents as members of said board did so receive and misappropriate $500.

' Specification 2. That the respondents as members of said board did unlawfully, willfully, and corruptly misappropriate ^$200 of said money by paying same to Daniel Hopkins, who was not entitled to same.

Article 3. That respondents as members of said board Had supervision and control over the state institutions and were responsible for the disbursements of the funds therefor, and negligently, willfully, and corruptly allowed accounts for coal furnished for the use of the insane asylum át Lincoln without proper examination thereof.

Specification 7. That the contractor the Whitebreast Coal & Lime Company, for the month of October, 1890, furnished 346,000 pounds of coal; for November, 1890, 642,000 pounds; for December, 1890, 662,-000 pounds; for January, 1891, 378,700 pounds; for February, 1891, 497,300 pounds, and for March, 1891, 470,000 pounds, and rendered its account to the board for coal delivered for said months as follows: For October, 1890, 400,000 pounds; November, 1890, 1,244,000 pounds; December, 1890, 1.480.000 pounds; January, 1891, 1,086,000 pounds; February, 1891, 1,240,000 pounds; March, 1891, 1,040,-000 pounds, and that on April 10, 1891, the board carelessly, negligently, and willfully approved the account after deducting 80,000 pounds.

Specification 8. That the board let a contract to Betts, Weaver & Co. to furnish supplies for the quarter commencing April 1, 1891, and that said contractors furnished for April, May, and June, 1891, 1,262,800 pounds of coal, but rendered an account for 2,870,700 pounds, and the board carelessly, willfully, and negligently approved said account without proper examination and verification.

Specification 9. That the board let the contract for coal to the Whitebreast Coal & Lime Company for the quarter commencing July 1,1891, and that said company furnished coal to theasylum as follows: July, 1891,365,000 pounds; August, 1891, 391,000 pounds; September, 1891, 308,000 pounds; but rendered accounts for July, 1891, 882,000 pounds; August, 1891, 983,000 pounds; September, 1891, 918.000 pounds, and the board carelessly, willfully, and negligently approved said accounts.

Specification 10. That the board let contracts for supplies to Betts, Weaver & Co. for the quarter commencing October 1,1891, and that said contractors furnished coal as follows: For October, 1891, 501,500 pounds; November, 1891, 673,000 pounds; December, 1891, 761,000 pounds; but rendered account for October, 1,484,000 pounds; November, 1,480,000 .pounds; December, 1,495,000 pounds, and the board, without examination and verification, carelessly, willfully, and negligently allowed the same.

Specification 11. That the board let the contract for coal to the Whitebreast Coal & Lime Company for the quarter commencing January 1,1892, for the asylum. That the said company furnished coal as follows: For February, 1892, 674.000 pounds, but returned an account for 930,600 pounds, and that the board allowed said account, willfully, negligently, and carelessly, and without properly examining and verifying the same.

The answers of the respondents are substantially the same and may be summarized as follows: In addition to the duties of their respective departments, each is a member of numerous boards to which are attached varied and important duties. That the board of public lands and buildings during the years 1891 and .1892 were charged' with the construction of ten public buildings, costing in the aggregate over $225,000, and the disbursement of appropriations for current expenses exceeding $800,000, so that it was impossible for said board to more than exercise a general supervision over the various public interests.

Specification 1. That in the construction of the cell house it was necessary to employ a superintendent; that Dorgan was considered a suitable person for that trust and deemed to be honest and capable, and his appointment was the result of their deliberate judgment, acting in good faith for the best interests of the state; that the employment of convict labor was by them deemed expedient; that the men employed were mostly skilled workmen and the rate allowed for their services, $1 per day, was not excessive.

Specification 2. It was necessary for the board to advance lo the superintendent sums of money to defray current expenses as the only way to pay for the work without delay, and is the customary way of disbursing money for public work; and the same was advanced in good faith upon estimates made by the said Dorgan and upon the bond given by him in the sum of $10,000; and they deny that the state has been defrauded on account of said transactions in any sum whatever.

Specification 3. They have no knowledge that Dorgan presented any fraudulent or false vouchers, and deny that they willfully, negligently, or corruptly audited accounts-without attempting to verify the correctness thereof; that the settlement of Dorgan’s account was postponed for the production of vouchers and awaiting the result of an investigation then in progress, by reason of which said accounts have not been audited and settled, and deny that the state has been defrauded thereby.

Specification 4. Allege that the $232 expended for fire brick and clay was for the setting of a boiler, the property of the state, to be used for heating the cell house in question, which was both lawful and expedient, and deny that the state has been defrauded.

Specification 5. Deny that they negligently, willfully, corruptly, or otherwise allowed any fraudulent or false-charge for convict labor, and further say that in all cases they required a verification by the warden of the accounts for convict labor, and deny that the state has been defrauded as therein charged.

Specification 6. A denial of substantially all of the allegations thereof.

Specification 7. Allege that the board delayed final settlement with Dorgan for good and sufficient reasons, as more fully set forth in answer to specification 3.

Article 2. Specification!. That during the construction of the cell house various questions arose with respect to the kind of cells to be selected therefor, the different systems of ventilation and other questions pertaining to the sanitary condition of the prison; that the lessee of the penitentiary was by law bound to furnish eighty cells at his own expense, and had notified the board of his readiness to construct or furnish them according to any plan adopted by the state; that being entirely without experience in the construction or management of prisons, and desiring to fully discharge-their duty to the state they determined to visit and personally inspect certain recently constructed and well regulated institutions in other states; that they, in company with the warden, visited said prisons, some seven in number; also-the Pauly Jail & Cell Works, of St. Louis, Missouri, using the sum of $500 of the cell house fund for the purpose of defraying their expenses, in addition to considerable of their private funds which were required for that purpose; and that the action in question was prompted alone by a conviction of duty to thus obtain the information necessary for their guidance in the discharge of the duties of the state.

Specification 2. In the month of October, 1,891, the board used the further sum of $200 out of the cell house fund to defray the expenses of the chaplain and warden of the penitentiary in attending a session of the National Prison Congress organized to encourage humanitarian methods of conducting prisons and the reformation of the criminal classes; that in so applying the money in question to the purpose named their motives were to protect the public interests alone.

Article 3. Specification 7. The items for coal for October, November, and December, 1890, were unpaid by the former administration for want of funds, and these items, with items for coal for January, February, and March, 1891, were by the officers of the asylum presented to the legislature of 1891 and the same allowed and ordered paid by the said legislature and an appropriation made therefor; the respondents are not guilty of misdemeanor relating thereto.

Specifications 8, 9, 10, and 11. When respondents were inducted into office, January 9, 1891, they had no especial knowledge of the amount of coal and other supplies required for the public institutions; that a superintendent, steward, and book-keeper had been appointed by the governor for the Lincoln asylum and who had long held said offices; that said officers had all given bond and taken an oath to faithfully discharge their duties and were by the respondents deemed honest and capable; that in allowing bills for coal, they relied, as they had a right to do, upon the certificate of the superintendent, that said bills were correct and that the coal therein called for had in fact been furnished.

The foregoing is believed to be a fair statement of the issues and which are presented more in detail than would have been deemed necessary or proper in an ordinary action or proceeding. When we have cleared away the rubbish, to use a homely phrase, and stripped this case of the features which are wholly irrelevant, or at most but incidental to the real controversy, we find the questions involved to be few and by no means difficult of solution. In the first place it should be remembered that , the purpose of this investigation is to determine whether the respondents have been guilty of misdemeanor in office, and not an action on their official bonds or to state an account between the state of Nebraska and Dorgan or parties furnishing coal for the use of the asylum at Lincoln. It should also be borne in mind that the only charges with respect to the cost or value of the cell house are those contained in the 3d, 5th, and 6th specifications under article 1. But as-the proofs are confined to specifications 5 and 6, they alone will be examined.

Yolumes might be written on the subject of the cost and value of the different walls as well as the roof and foundation of the cell house, also the amount of labor and material furnished therefor by Dorgan and Hopkins respect-' ively, and in the vain attempt to reconcile the estimates of the many witnesses who have testified on that question. I am satisfied that it was a mistaken sense of duty which prompted us to permit first the state and, afterward, the respondents to introduce evidence of that character. The result is that we have consumed days and even weeks in hearing proofs wholly irrelevant to the real issues of the case. It may be further said that the evidence on that sub-' ject is of the most unsatisfactory character even for expert testimony. For instance, according to my recollection, no two of the state’s witnesses agree as to the length or height of the exterior walls of the structure, and differ more than $14,000' in their estimate of its present value. With the foregoing observation I will dismiss tlie subject of the present value of the cell house and proceed to consider the several charges in their order.

Preliminary to an examination of the charge contained in specification 1 of article 1, it should be observed that on the 22d day of October, 1877, the penitentiary grounds and convict labor were leased by the state to W. H. B. Stout for the period of ten years, and by an act approved March 2, 1887, said contract having been assigned to C. W. Mosher, was extended for ten years from October 1, 1889. It is further provided by said act that Mosher, shall receive forty cents per day for each convict as full compensation under said contract. At the time of the appointment of Porgan to superintend the construction of the cell house he was the agent and manager of Mosher, the lessee of the penitentiary, and charged with the duty of sub-leasing the prison labor. In view of that fact his selection by the board as the representative of the state, knowing, as will hereafter appear, that it would be obliged, to depend upon Mosher for labor to carry on the work, is highly censurable and should, to say the least, be characterized as unbusiness-like and utterly wanting in that in-, telligent regard for the interests of the state which the lasv demands of public officers under like circumstances. It is true, according to the evidence, that Dorgan was recommended to the board by reputable parties, and previous to his resignation no charges had ever been made within the knowledge, of respondents affecting his character or fitness for the position. That fact, while it may to some extent extenuate, will not excuse his selection for so important a trust. But has the state been defrauded^ thereby as charged? The answer to that question depends upon whether the labor could have been procured for less than the amount allowed. In this connection it is proper to examine the provision for the cell house, which is found in the general appropriation act of 1891, under the title “Penitentiary,” and is in the following language: “Building new cell house by days’ work, forty thousand dollars.” The motives of the legislature are not involved in this controversy, yet the appropriation in question might with equal propriety have been entitled “An act for the relief of C. W. Mosher,” since it is a palpable fact that .he was beyond the reach of competition. The rules of the prison forbid the employment of free laborers within its walls, hence the contractor was practically able to dictate the wages to be paid by the state. There is, however, no evidence tending to prove that the labor could have been procured on terms more advantageous to the state, or that the amount charged, $1 per day, is excessive. It is true convict labor has been let to some of the subcontractors at the prison as low as forty cents per day, but such employment has been for a term of years, and the employers have in every such case been subjected to the additional expense of costly machinery. It is also shown that the state had on two previous occasions employed convict labor, allowing therefor $1 per day. The state’s witnesses who testify on the subject all agree in placing the value of the labor per day at figures largely in excess of the rate charged therefor. The wrong to the state in that regard consists in the charging for labor not rendered, which will be considered hereafter, rather than the rate per day. The charge in that specification is, therefore, not sustained by the proofs.

2. The charge in the second specification is the advancing to Dorgan of money out of the cell house fund before the labor therefor had been performed, or the material furnished, without adequate security. It is not charged that such advancements were made corruptly or even negligently. It should be mentioned in this connection that upon the appointment of Dorgan he was required to give a bond in the sum of $10,000, conditioned that he would faithfully discharge his duties and account for all moneys which might come into his hands. That bond is admitted to be good and ample security for any amount now due to the state. Nor does it appear that he was at any time entrusted with money in excess of the amount of the bond aforesaid. On the 1st day of June, 1891, Dorgan presented to the board an estimate, of which the following is a copy:

“Estimate No. 1.

“For work done and material furnished during the month of May, 1891, for cell house at penitentiary :

Cut stone.................■.................................. $1,000

Concrete................................................... 750

Excavating................................................ 350

Material on hand not used.............................. 4,000

Balance due contractor........................ $6,100

“ The above estimate was- made by me this 1st day of June, 1891, and I hereby certify that the amount of work done and materials furnished by said contractor are true and correctly stated and set forth in the above estimate, and that the said estimate is made in the manner and according to the plans and specifications mentioned in the contract with the said state and said contractor.

“W. H. Dorgan,

“ Superintendent

Accompanying said estimate was a voucher for $6,100, as follows:

“The State of Nebraska,

“ To W. H. Dorgan, Dr.

“ For material used in building new cell house, per estimate No. 1 hereto attached................... $6,100

“Examined and approved June 1, 1891, by the board of public lands and buildings, and account to be charged to appropriation for penitentiary, new cell house.

“ John C. Allen, A. R. Humphrey,

, . “ Secretary. President,n

Upon the approval of the above voucher a warrant was issued in his favor for the amount named therein. In like manner he was allowed $8,000 Augusts, 1891; $8,000 October 5, 1891; $5,000 December 7, 1891, and $5,000 March 7,1892, making a total of $32,100, of which $6,300 was turned over by him to Hopkins on the appointment of the latter. It may be assumed that the sums above enumerated were all advanced by the board before the procuring of the labor or material therefor. But as the charge involves no issue of fraud or negligence the only question necessary to examine is whether the advancing of the money aforesaid is a violation of any positive law. The only provisions to which we have been referred as bearing upon the subject are section 22, article 3, and section 9, article 9, of the constitution which are copied in the order named.

“Sec. 22. No allowance shall be made for the incidental expenses of any state officer except the same be made by general appropriation, and upon an account specifying each item. No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, and on the presentation of a warrant issued by the auditor thereon, and no money shall be diverted from any appropriation made, for any purpose, or taken from any fund whatever, either by joint or separate resolution. The auditor shall, within sixty days after the adjournment of each session of the legislature, prepare and publish a full statement of all moneys expended at such session, specifying the amount of each item, and to whom and for what paid.”

“Sec. 9. The legislature shall provide by law that all claims upon the treasury shall be examined and adjusted by the auditor, and approved by the secretary of state before any warrant for the amount allowed shall be drawn; Provided, That a party aggrieved by the decision of the auditor and secretary of state may appeal to district court.”

In my judgment neither of the above provisions are applicable. The provision for the cell house invested , the board with a discretion with respect to the money appropriated therefor, which, in the absence of fraud or mistake, is a sufficient justification of the act charged. The above constitutional 'restrictions were intended to limit the payment of claims to those for which specific appropriations have been made. But while the advancing of money appropriated, to a disbursing officer or board as in this case, is of doubtful wisdom because liable to abuse, it is not prohibited by any express provision of the constitution or necessary implication therefrom. There are also numerous legislative precedents for the action of the board, a few only of which need be noticed. For instance, by chapter 115, Laws 1885, $15,000 was appropriated for an exhibit at the New Orleans cotton exposition, to be drawn by the governor, who was made the sole disbursing officer, and to be spent at such times and for such purposes as in his own judgment was deemed expedient. By an act approved February 6, 1891, $100,000 was appropriated for the relief of “the people in the drouth-stricken districts ” of the state, and a board, designated therein as a “Relief Commission,” authorized' to draw and disburse the money so appropriated. By an act approved March 27, 1891, $50,000 was appropriated for an exhibit at the Columbian exposition, to be drawn and expended by a commission created by said act upon estimates to be followed in a reasonable time by a detailed statement and vouchers. But a case in point is the Impeachment of Melville, in 1806, on the charge of drawing funds as treasurer of the navy before they were needed for public use. In that case the house of lords submitted to the judges of common pleas two questions, viz., 1st, whether it was unlawful to draw public money in advance of the time it was needed for public use but for the purpose of having it for that use; 2d, if such act was an offense. Both questions having been answered in the negative the accused was acquitted. (29 How. State Tr., 1469.)

There exists in my mind a grave doubt as to the constitutional authority of a state board to audit claims against the state, but assuming, as do the managers, that such power exists, I do not doubt that they may lawfully place money in the hands of a superintendent to be used by him for the purpose designated in the appropriation, in the absence of a special provision to the contrary, after adopting proper precautions for the protection of the state.

3. With respect to specification 3, it may be said that the bills rendered for stone are grossly in excess of the reasonable or market value thereof through the negligence, incompetency, or fraud of the superintendent. The latter, it is disclosed, contracted with Atwood & Co. for the necessary stone to be delivered on the cars at Cedar Creek, Cass county, or other points not more remote from Lincoln, agreeing to pay eight cents per 100 pounds for common yubble, sixteen cents per cubic foot for dimension stone, and thirty-five cents per cubic foot for stone “ plugged to size” — that is, dialled and blasted according to designated measurements. It also appears that Atwood & Co. purchased all of the dimension stone from J. W. Zook and E. D. Yan Court, of Nemaha county, paying therefor ten cents per cubic foot, also a portion of the rubble at four cents per 100 pounds, and which was all billed to the state and paid for at the contract price. The price paid by Atwood & Co., it is shown, is a trifle below the market value of the stone, but the difference does not exceed two cents per cubic foot. Zook testifies also that he received a written inquiry from Dorgan previous to the contract of the latter with Atwood & Co. concerning the price of stone, and in reply quoted the prices above named, but which is denied by Dorgan. There is, however, no evidence that the board, or the respondents individually, or any of them, participated in or had any knowledge of such frauds or overcharges. Nor was such a contention made at any time by the managers during the trial, except perhaps with respect to specification 1 of article 2, which will be noticed hereafter. On the other hand, their conduct is entirely consistent with good faith and honesty of purpose, although, it may be admitted, indicating a lack of judgment and a proper degree of diligence under the circumstances. There was certainly nothing upon the face of the bills rendered by Atwood & Co. calculated to excite suspicions in the minds of persons not familiar with the price of stone, and it is not difficult to conceive how they might easily have borne the scrutiny of more exacting and cautious officers than the state board.

4. By the proofs under this specification are presented the vital question in the case, viz., whether the respondents-are impeachable for failing to detect and prevent the alleged frauds against the state, or, as a broader statement of the same proposition, what under our constitution amounts to an impeachable misdemeanor? It is safe to say that no-ques! ion of greater importance has ever been submitted for the consideration of this court. And in its solution we-have endeavored to adopt the rule best sanctioned by authority and which is just, alike to the state and its servants. / It is sufficient for our purpose at present to say that we are constrained to reject the views óf Professor Dwight, Judge Curtis, and other advocates of the doctrine that an impeachable misdemeanor is necessarily an indictable offense, as too narrow and tending to defeat rather than promote the end for which impeachment as a remedy was designed and not in harmony with the fundamental rules of constitutional construction. On the other hand, the contention of counsel for the state, that the term misdemeanor in office is not susceptible of a legal definition, bat that every such proceeding should be determined upon the facts in the particular case, is, to say the least, strikingly illogical. There is one fact which cannot fail to impress the judicial mind from an examination of our constitution, viz., that the provision for the trial of impeachments before the supreme court was to insure a strictly judicial investigation according to judicial methods. It cannot be successfully maintained that this court has succeeded to any of the political functions of the senate as a court of impeachment under the first constitution. The former practice has been justly condemned on account of its political and, it must be confessed, too frequent partisan character, but the substitution of a judicial oligarchy for the form of democracy is not to be commended as a measure in the interest of reform. As said by Judge Story, “It is so incompatible with the genius of our institutions that no lawyer or statesman would be inclined to countenance so absolute a despotism and practice, which would make that a crime at one time or in one person which would be deemed innocent at another time or in another person;” and Senator Davis, in Johnson’s Impeachment, vol. 3, 157, said: “But the position that the senate when trying an impeachment is a law to itself, is bound by no law, may decide the case as it wills, is illimitable and absolute in the performance of special, restricted, judicial functions, in a limited government, is revoltingly absurd.” The sound rule and the one approved by the most eminent jurists and statesmen of this country lies midway between the two extremes. Judge Lawrence, in his brief for the managers in Johnson’s Impeachment, 6 Am. Law Reg., 680, states the rule thus: “The result is that an impeachable highv crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the constitution, of law, of an official oath, or of duty by , an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.” Senator Doolittle, in the same case, p. 246, said: “ But to say that a high public officer, with good motives and with an honest intent to obey, though he mistake the meaning of the statute, can be found guilty of a high crime or misdemeanor which shall subject him to the heaviest punishment which can fall upon a public man in high office is to assert a doctrine never before heard in any court of justice.” Senator Fessenden, in the same case, p. 29, referring to the argument that the term, misdemeanor in office, could not be accurately defined, said: “Granting, for the sake of argument, that this latter construction is the true .one, it must be conceded that the power thus conferred might be liable to very great abuse, especially in times of high party excitement, when the passions of the people are inflamed against a perverse and obnoxious public officer. If so, it is a power to be exercised’ with extreme caution when you once get beyond the line of specific criminal offenses.” And in Pomeroy’s Const. Law, 602, it is said: “Wherever the president or vice president, or any civil officer, has knowingly and intentionally violated the express terms of the constitution or of a statute which charged him with an official duty to be performed without a discretion, and wherever a discretion being left, within the bounds of which he has an ample choice, he exercises that discretion ■ in a willful and corrupt manner, or even in a rash and headstrong manner, unmindful of the ruinous consequences ^ which his acts must produce, he is impeachable.” It may '• be safely asserted that where the act of official delinquency consists in the violation of some provision of the constitution or statute which is denounced as a crime or misdemeanor, or where it is a mere neglect of duty willfully done, with a corrupt intention, or where the negligence is so gross and the disregard of duty so flagrant as to warrant the inference that it was willful and corrupt, it is within the definition of a misdemeanor in office. But where it consists of a mere error of judgment or omission of duty without the element of fraud, and where the negligence is attributable to a misconception of duty rather (han a willful disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the state.

5. Another question closely allied to the one last discussed is the character of the duties imposed upon the board of public lands and buildings, such as the selection of a superintendent of construction for the cell house and • in the auditing of accounts against the state. It has been suggested that such duties are analogous to those of ordi- - nary trustees and that the respondents are therefore impeachable for a failure to exercise such a degree of diligence as is required of ordinarily prudent men under like circumstances. That proposition is certainly indefensible, either upon reason or authority. It has been repeatedly decided by this court, and may be regarded as the settled . law of the state, that duties.of the character enumerated are quasi-judicial. For instance, in Brown v. Otoe County, 6 Neb., 115, a carefully considered case, Lake, Ch. J., approves of the following language: “We have, after much reflection and upon due consideration, reached the conclusion that the board of commissioners in passing upon claims act in a judicial capacity.” In Bishop on-Non-Con. Law, 786, quasi-judicial functions are thus de-> fined: “When the law in words or by implication com-1 mits to any officer the duty of looking into facts and acting-' upon them, not in a way which it specifically directs, but; after a discretion in its nature judicial, the functio'n is termed quasi-judicial.”

■ 6. Another rule, so well settled as not to admit of controversy, is that public officers are not liable even in a civil action for judicial acts, however erroneous, unless they are. shown to have acted willfully or corruptly. The cases which recognize that rule are so numerous that it is impracticable to cite them at length in this opinion, but they, will be found in the notes under sec. 713, Throop, Public Officers, and Mechera, Public Officers, 639, 640. (See also Stephen’s Digest Grim. Law, art. 119; Whart., Crim. Law [9th ed.], 1572; Impeachment of Scroggs, Ch. J., 8 How. St. Tr., 163, 190; 1 Bishop, Crim. Law, 299, 460.) It follows from what has been said that the action of the board in selecting Dorgan to superintend the construction of the cell house, and in allowing the bills contracted by him, was in character essentially judicial. Their fault was a mere error of judgment not involving either moral turpitude or gross and willful neglect of duty, and does not therefore amount to a misdemeanor in office.

7. Another question which is suggested in this connection is the character of this proceeding, viz., whether it is to be regarded as a civil action or as a criminal prosecution for the purpose of the production and the quantum of proof to warrant a conviction. It may be safely asserted that the decided weight of authority in this country and England, if indeed there exists a diversity of opinion on' the subject, is that impeachment in that respect must be classed as a criminal prosecution, in which the state is required to establish the essential elements of the charge beyond a reasonable doubt. Blackstone (vol. 2,.book 4, p. 259) thus defines’the proceeding: “But an impeachment before the.lords by the commons of Great Britain in parliament. is a prosecution of the already known and established law and has been frequently put in practice, being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom.” In the Impeachment of Belknap Senator ■ Wright used the following language: “ Because it does not satisfy me upon this point beyond a reasonable doubt, and because it is quite wanting in everything like directness and force, * * * I feel bound to vote not guilty.” Language of similar import was used by Senators Christiancy, Booth, Oglesby, and others. But we are fortunately not without judicial authority on the subject. In the ■ Impeachment of Barnard, 1872, the Judges- of the court of appeals of New York sat with the senators and appear to have been consulted upon all doubtful questions. Chief Justice Church, p. 2070, speaking upon the subject under consideration said: “If I felt warranted in balancing the evidence and in determining that question in a civil action, 11 might come to the conclusion that the evidence of payment was not reliable, but we are here in .a criminal case where the respondent is entitled to the benefit of every reasonable doubt, both upon' the facts and the law, and I cannot say that the evidence which has been produced is not sufficient to create some doubt.” Judge. Andrews, p. 2071, said: “I shall vote not guilty upon this article, upon the principle that this defendant is entitled to ■every reasonable doubt and that that doubt as to his guilt according to the charge exists in my mind upon the evidence in the case.” Like views were expressed by other judges, but there was no dissent from the opinions above quoted. And in State v. Buckley, 54 Ala., 599, impeachment is defined as a criminal proceeding without the right of trial by jury. It is not alone in form but also in substance a criminal prosecution. As said by Senator Sar-' gent in Belknap’s Case, p. 87: “A sentence to disqualification is a humiliating badge affixed to high crimes and misdemeanors in office.” While we have in this country no technical attainder working a corruption of blood, the sentence of disqualification to hold or enjoy any office of honor, profit, or trust, which is provided by our constitution in. case of conviction by impeachment, is within the primary definition of the term.. It is the extinction of civil rights and capacities, a mark of infamy by means of which the offender becomes attinctus or blackened. (Rap. & Law., Die., title “Attainder ”; Bishop, Crim. Law, 966, $70, and notes.) The allegation that the respondents acted willfully and corruptly being without support, it follows that there is a failure of proof with respect to specification 3.

8. The 6,000 fire* brick and six barrels of fire clay described in specification 4 were used in the resetting of two boilers belonging to the state and which are to be used in the heating of the new cell house. The contention of the managers is that it was the duty of Mosher, the lessee of the penitentiary, to reset these boilers at his own expense. The provision in the act of 1877 under which the lease was executed is that the lessee shall pay “all penitentiary expenses, including salaries of officers and other help, the heating of buildings, boarding and clothing convicts.” The contract .is in the following language: “Said Stout agrees to board and clothe all such convicts in the manner prescribed by law, and to pay and defray all expenses necessarily incurred in maintaining said penitentiary, * * * and to restore said buildings, yards, and grounds, at the end of said term, in as good condition as they now are, reasonable wear and tear, loss by fire, etc., excepted.” Whether under the above provisions the lessee was at his own expense bound to set boilers for a building not in existence and not contemplated when the contract was executed is to say the least a debatable question. Nor are we now called upon to review the action of the board for the purpose of determining whether their construction is the sound one. It is sufficient that they acted in good faith.

9. It appears that from January 20 to February 1,1892, inclusive, work on the cell house was suspended for want of material and the convicts assigned to that work remained idle. It appears further that Dorgan, the superintendent, rendered a bill for their labor at $1 per day during all of said time. He attempts to justify his action by reference to a custom to charge subcontractors for the labor of convicts from the time of their assignment unless sick or disabled. This explanation merely proves the wisdom of the scriptural saying that one cannot serve two masters. Dorgan was appointed to employ laborers by the day and not to make time contracts for labor. In other words, the state was not a subcontractor and was liable only for labor actually performed. But the state board relied upon the time book kept by the warden and his subordinates, who were in the habit of keeping time for the lessee and the several subcontractors, and in this instance, following the custom above referred to, daily charged to the state all the men who had been assigned to the cell house. The bill therefor was allowed in the belief upon apparently reliable evidence that the services had been rendered as charged and their action is therefore not impeachable.

10. The only specific charge in specification 6 is the crediting of Dorgan for money expended without requiring the production by him of vouchers therefor. The method adopted by the board in dealing with Dorgan was substantially as follows: With each estimate made by the latter he would file with the board the original bills rendered to him for stone and other material, also receipted expense bills for freight, and at the same time exhibit his canceled checks payable to the order of the parties furnishing labor, material, etc. Such checks, after being examined, were returned to Dorgan, but are all in evidence except two which are admitted to have been lost or mislaid. There was in reality no settlement or statement of the account between them, settlement by mutual understanding having been deferred until the termination of Dorgan’s employment. While we may not be able to commend the course of the respondents as prudent and sagacious business men, they are not to be convicted because we may differ with them in judgment or because they may fall short of our standard of efficiency and diligence under like circumstances.

11. The only charge in specification 7 is the failure to-make final settlement with Dorgan. The respondents all testify that soon after the appointment of Hopkins they received information which led them to question Dorgan’s honesty; that they had no means of ascertaining the truth with respect to' such charges, and inasmuch as the grand jury of Lancaster county had entered upon an investigation thereof, they decided to defer action in order to avail themselves of any information derived by that means as well as from other sources. The delay, it is apparent, does not constitute a misdemeanor in office but was for the best interest of the state.

12. We come now to a consideration of the charges under article 2, the first of which is the conversion to their own use by the respondents of $500 of the cell house fund. In this connection it is necessary to again examine the appropriation in question. It is doubtful if the history of the state presents another such an instance of reckless legislation as the appropriation of $40,000 without direction even as to the quality or dimensions of the building provided for, or as to the manner in which the money should be drawn or disbursed. There is no authority in the act for the procuring of material or plans and specifications. As to all matters except labor the board are required to exercise their discretion. In the exercise of that discretion they might lawfully have employed a supervising architect skilled in the construction of prisons and familiar with improved systems of ventilation and other methods of bettering the sanitary condition of such institutions, and for such service they might lawfully have expended several times the amount above named. They were advised by the attorney general that it was lawful to use a part of the cell house fund to defray the cost of visiting other prisons in order that they might better discharge their duty to the public. Whether or not such advice was technically correct is not the test of their liability in this prosecution. If they in good faith construed the law as authorizing them to use a part of that fund for the purpose named, there is no precedent in this country for declaring their offices forfeited because we might in a proper proceeding feel constrained to reverse their ruling, and place a different construction upon the act. It is in evidence that no itemized account of their expenses was ever filed with the board or submitted to the legislature. But each of the respondents and the warden testify that the money was all expended for traveling expenses and other necessary costs of the trip, and that in addition to the $500 used for that purpose, each expended from $15 to $40 of his private funds. According to their testimony they were absent about two weeks; that-the three respondents had free transportation from Lincoln to St. Louis and from Chicago to Lincoln, and that the warden rode on a pass from Chicago to Lincoln. We are on this evidence alone asked to find that their legitimate expenses were less than $500 and draw the inference that they converted a part of that amount; in other words, that they are guilty of embezzlement. It should be remembered in the first place that this is a criminal prosecution and we are not to enter upon the field of conjecture in search of a theory upon which the respondents may be pronounced guilty. Second, they are not contradicted by any evidence whatever. They were not even subjected to a cross-examination regarding the items expended. I must not be understood as holding that upon an accounting they may not be chargeable with a part or all of the $500' in question, but a finding of willful conversion in this case must rest upon suspicion alone, or at most a mere probability and upon evidence insufficient to support a verdict, in a civil action.

13. Substantially the same reasoning is applicable to the charge contained in the next specification, viz., the allowance of $200 out of the cell house fund to defray expenses of the chaplain and warden of the penitentiary as delegates to the prison congress at Pittsburgh. In my opinion that expenditure was outside of the scope of the authority of the board and that they are liable to the state for the money so advanced. In other words, they cannot, as to that amount, claim immunity on the ground that their action was in its nature judicial. Such act, however, falls far short of a misdemeanor in office. They acted from motives of humanity, without thought or possibility of gain or advantage to themselves, which is alone a sufficient defense.

' I am convinced that the alleged frauds at the penitentiary and the asylum for the insane were the real inducements for this prosecution, and that the two charges under article 2 are mere incidents,'which would not, in the minds of the legislature, have justified the impeachment of the respondents.

14. The specifications under article 3 all relate to overcharges for coal at the asylum, and the questions presented thereby have been fully discussed in the consideration of specification 3, article 1. But in view of the importance of the' case it is deemed proper to examine some of the remaining specifications. It should be mentioned iq this connection that the superintendent of the asylum had held the position for-many years by appointment from the governor. He was a man of high character and standing, and whose integrity was never questioned during the trial. It was his duty to order supplies for the asylum and he was presumed to know what amount thereof had actually been delivered. In allowing bills for coal, the respondents, following the practice which had prevailed for many years, required the superintendent to examine all accounts which were rendered in the form of vouchers and when found correct to “O K” them, that is, to certify that they were correct and that the supplies charged had been delivered. Following is the form of certificate which accompanied each coal voucher:

-, “ Hospital for the Insane, Lincoln. * * * * I certify that the within account is just and correct, and that it is a proper and necessary expense and has not been paid.

“W. M. Knapp, Superintendent.” .

. At the regular monthly meetings of the board said •vouchers were examined and the prices, charged therein compared witb the contracts in pursuance of which the supplies were furnished. If they were found to correspond and the extensions correct they were allowed, but if they lacked the certificate of the superintendent, or if was discovered therein any substantial error, they were rejected. It was not only impracticable but manifestly impossible for the respondents to scrutinize every item thus certified to them by the heads of the eleven institutions under their charge. It is not seriously denied that the board may within reasonable limits rely upon the statements of the superintendents. It is argued, however, that the excessive amount of the coal bills for the year 1891 was alone suffi- • cient notice to the board of the frauds alleged. ■ It is evident that outrageous frauds were perpetrated upon the state during the period covered by the charges, and that the vouchers certified by the superintendent were, through his negligence or credulity, grossly in excess of the amount of coal actually furnished, although the amount of such overcharges cannot be accurately determined from the proofs. It may be admitted, too, that had the total amount of the coal bills for that year been presented for allowance at any one meeting, the extravagance thereof was such as to have challenged their attention, notwithstanding the certificates of the superintendent and their confidence in his watchfulness and integrity. But the vouchers were presented for allowance at the monthly meetings and in. view ' of the hundreds of bills examined at each meeting, in the disbursement of $450 010 yearly for current expenses and $225,000 for the erection of public buildings, it is not surprising that the excessive charge for coal at the one institution should have escaped detection.

There is another fact which is worthy of notice. Coal bills amounting to over $12,000 for the last quarter of 1890, which was prior to the term of office of either respondent, and the first quarter of 1891 remaining unpaid, the appropriation for that biennial period having been exhausted, were submitted to the legislature of 1891, and by it referred to the proper committees for investigation and report. And by an act approved April 6, 1891, the sum of $12,000 was appropriated for the payment of said bills, whereupon they were certified to by the superintendent and allowed by the board. In specification 7, relating to the overcharge during said period, it is stated, in substance, that the coal delivered was 2,996,000 pounds ■only, while the bills rendered by the contractor amounted to 6,886,000 pounds, and which was allowed by the board after deducting 80,000 pounds, leaving a net overcharge of 3,410,000 pounds in six months. The aggregate of the bills rendered during the remaining nine months of that year is 8,113,700 pounds, or 1,627,700 pounds more than the amount approved by the legislature for the six months in question. The overcharge for the first three months of tlie respondents’ term, of office which the legislature failed to detect was 2,020,000 pounds, while for the remaining nine mouths, according to the specification, it is less than twice that amount. It is not contended that negligence of the legislature, however gross, would excuse the willful disregard of duty by the respondents, but there is force in the argument that the appropriation in question is in the nature of a legislative assertion of the reasonableness of the charges, and that since the respondents are admitted to have acted in good faith, they are not chargeable with frauds by the contractor of such character as to escape detection when subjected to the scrutiny of an unfriendly legislature. The appropriation of money for the payment of the bills named was a legislative approval of the accounts under the circumstances of the case, and is a complete justification of the action of the board in ordering them to be'paid. So that the legislature of 1893 is placed in the illogical and paradoxical position of impeaching the state board for an act which was expressly authorized, if not in- terms commanded, by the legislature of 1891. True, the respondents might have justified a refusal to pay the bills, if tainted with fraud, to their knowledge, but having in good faith carried out the direction of the legislature it cannot be said that such act amounts to a misdemeanor in office within any modern definition of the term.

The other specifications under article 3 all relate to overcharges for coal at the asylum, and what has been said with reference to the other like charges applies with equal force to them. The vouchers were all presented to the board in the usual course of business, at the regular monthly meetings, bearing the certificates of the superintendent. They were all compared with the contracts on file, and allowed without any knowledge or suspicion on the part of the board that the coal called for had not been delivered.

Every controversy is important to the parties immediately concerned, and this is no exception. But the questions whether these respondents or others shall serve the people, and the effect of a conviction upon them, are of small concern compared with the principle involved. It is useless to indulge in platitudes with regard to public trusts, or the binding obligations of an oath of office. A favorite argument in state triáis three hundred years ago was that if the accused should be acquitted of the misdemeanor charged, no one was impeachable, and the fact that it was frequently employed during this trial, proves that history repeats itself. It was then as it is now, the plea of necessity, the argumént used when reasons were wanting. According to the definition of official misdemeanor’s contended for by the state and which must be adopted to warrant a conviction, it will be within the power of an aggressive majority of the legislature at any future time to secure the removal of an obnoxious officer.

It has been truly said that impeachment is an heroic remedy to be resorted to in extreme cases. The only precedents which tend to sustain the position of the managers are early cases in England while the law of impeachment was in a state of evolution, and which have never been recognized as authority in this country. It may also be asserted as a fact known to every student of English constitutional history that the decadence of impeachment as a remedy in England dates from about the time the house of lords became illustrious for the learning and character of its members, and that it is now practically obsolete in that country.

As said by Prof. Dwight, 6 Am. Law Eeg., 282: “The dramatic period of English history has passed away. There have been no impeachments for fifty years and doubtless will be none of special importance unless a revolution takes place.” And the words of the late Justice Miller in speaking of Johnson’s impeachment are quite as applicable to this: “ It may also be said that in view of the invitation which a successful result in that effort to convict and remove him would have held out in future times to exasperated majorities in the legislative body opposed to the president, and his manner of exercising the functions . with which he is charged by the constitution, to get rid of a president against whom such personal hostility existed, the country is fortunate in the fact that the great impeachment failed.” (Miller, Const. Law, 172.) It is better that the state should be confined to the remedy afforded by the Criminal Code and civil action on the bonds of its officers, than an alternative so dangerous and so liable to abuse as impeachment for technical violations of law, errors of judgment, mistake of fact, or even neglect of duty such as disclosed by the proofs in this case. It follows from the views expressed that the evidence fails to establish the essential facts charged in the several articles of impeachment and that a judgment of not guilty should be entered in favor of each respondent.

Judgment accoedingly.

Noeval, J., concurs.