Dissenting. — It is with regret that I find my views of this ease opposed to those of my associates. In my opinion, the decision herein virtually overrules a number of decisions heretofore rendered by this court, and makes the opinion of a county attorney paramount to the statutes of this-state and the decisions of the court of last resort. The law of this case, following the rule of our code (see section 3818-of the Revised Statutes), was established by this court upon a former appeal. (See Ponting v. Isaman, ante, p. 283, 62 Pac. 680.) That decision was binding upon the district court:, and the district court properly observed it, and followed it. Now, strange to say, this court holds that the district court erred in following the former decisions of this court in this case. The conclusion reached is based upon the idea that the appellant, in claiming and collecting illegal fees from his county, acted with the belief that he was entitled to such fees. The fees consisted of per diem charges and mileage for services rendered by appellant as a county commissioner for viewing and supervising road and bridge work, for which he charged the regular per diem wage allowed by law to commissioners and mileage in traveling. The conclusion of the trial court to the effect that appellant believed that he was entitled to the compensation claimed by him/ and by him collected from his county, is evidently based upon the following opinion given by the county attorney of Nez Perces county to the board of *589commissioners of Ms county, and wbicb is set forth in full in the answer of appellant, in words and figures as follows:
'“To the Board of County Commissioners of Nez Perees County, Idaho.
"Gentlemen: It seems to me that a fair construction of the laws of this state authorizes members of your board to examine and inspect the roads of your respective districts for the purpose of determining and directing the kind, character, and amount of work to be done in the several road districts of your county, and that the law, under such circumstances, authorizes compensation therefor. Any other construction of the law, in my opinion, would preclude the idea of your properly directing the work required of you under our statutes.
"Very respectfully,
“F. DANFORD,
"Prosecuting Atty.”
This opinion by the county attorney was given, as alleged^ in appellant’s answer, in July, 1899. As early as March 7, 1895, this court held in the case of Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111, as follows: “The per diem allowed by the statute to the members of boards of county commissioners is only chargeable for the time the board is actually in session. County commissioners can only act or claim compensation as such while acting as a board. The law does not contemplate that members of the board may perform services for the county as individuals, and then charge for it as commissioners. The viciousness of such course is too apparent to require comment.’’ In the same case this court further said: "The board of county commissioners are an entirety. They can only act collectively and as empowered by law. They are only engaged in transacting county business, as that term is used in section 5 of the act of 1891, when acting as a board, and it is only while so acting that they can legally charge either per diem or mileage. It needs no authority to Support this proposition.” In the same ease, speaking of the defense attempted, to the effect that the defendant believed that die was entitled to the compensation charged and collected, *590this court said: “Credulity is not esteemed a paramount virtue of the judicial mind, but surely the recognition of such a flimsy excuse, for it does not rise to the dignity of a defense, as is offered in this case, must involve something more than mere credulity. Officers are supposed to know the law under which they act. .The maxim, ‘Ignorantia legis neminem ex-cusatf is forcefully applicable in their case.”
The rule laid down in Rankin v. Jauman has been followed by this court in a number of cases. (See Hampton v. Board, 4 Idaho, 646, 43 Pac. 324; Conger v. Board, 5 Idaho, 347, 48 Pac. 1064; Miller v. Smith, ante, p. 204, 61 Pac. 824.) In the latter case this court, speaking through Mr. Justice Sullivan, said: “The defendant testified in his own behalf that his belief and understanding were that it was his duty, as county commissioner, to take care of all roads and bridges, where it was absolutely necessary, and that he should get therefor six dollars per day.” This court held in Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111, as follows: “The per diem allowed by the statute to members of the board of county commissioners is only chargeable for the time the board is actually in session. The law does not contemplate that members of the board may perform services for the county as individuals, and then charge for it as commissioners. The viciousness of such course is too apparent to require comment/ .... The law does not authorize a member of the board to act for the board, nor has it given a single member of the board, when acting, alone, any authority whatever.If county commissioners were permitted to usurp the office of road overseer, and perform the duties of such officer, and pay themselves six dollars per day and expense therefor, road work would cost the. taxpayers much more than was contemplated by the law-making power; and county commissioners cannot shield their unlawful acts under the plea of ignorance of the law, for if that would relieve them of persistent and many times repeated unlawful acts, it would be impossible to remove an unfaithful or incompetent officer from office.” In this same case, in the second, third, fourth, fifth, and sixth syllabi, prepared by Mr. Justice Sullivan, the rules laid down in the opinion for the *591guidance of the district courts and the bar are tersely stated in the following language: “(2) Individual members of the board of county commissioners cannot perform services for the county, and charge for them as commissioners. (3) Boards of commissioners are entireties, and can only act as empowered by law and collectively. (4) The board is given certain limited powers, and a single member of such board is not empowered to act alone and bind the county in any manner. (5) Members of the board cannot perform duties of road overseers, and draw pay therefor as commissioners. (6) The plea of ignorance of the law will not protect a member of the board from removal from office when it is shown that he has repeatedly violated the plain provisions of the law.” And in the thirteenth sjdlabi, prepared by Mr. Justice Sullivan, the further rule is tersely stated in this language: “Frequent violations of the plain provisions of the law are probative facts, from which the ultimate fact of fraudulent, willful, or corrupt intent may be drawn.”
Apply the rules laid down in Miller v. Smith, supra, to the case at bar. Here the trial court found that for eighteen different days the appellant charged, allowed himself, and collected from his county per diem of six dollars for services in looking after roads and bridges; yet the judgment ousting him from office is reversed because the district court finds this ultimate fact: that he “honestly believed that he was entitled to the amounts charged and received at the time he made said charges, and at the time he received said moneys therefor.” The probative facts found by the district court show conclusively that appellant charged and collected illegal fees from his county. The law in regard thereto is “plain,” and involves no obscure statute. This ease, in so far as the charges for road and bridge supervising is concerned, is identical with the case of Miller v. Smith, supra. Charges for illegal fees are repeatedly made. The facts found by the court show that they were repeated eighteen times, yet the ultimate fact, or conclusion resultant from those facts, as determined by the district court, to the effect that he acted honestly, is upheld. One rule is applied to Smith; another, under the same con*592ditions, is applied to appellant. If the violations, of plain provisions of the law in the case of Commissioner Smith, repeatedly made, cannot be “protected” or excused on the plea •of ignorance of the law, or the same thing, that he thought he was right, how can it in the ease of the appellant? Why should the one be treated as flesh, and the other as fish?
The decision in the case at bar is so palpably wrong, so palpably inconsistent with the laws of this state, statutes, and former decisions, that I am unable to assent thereto. The correct and consistent administration and application of law is of much more importance than is the result of a controversy of the kind before us in any particular case. If the rule is to be adopted and followed in this jurisdiction that officers may collect from their counties illegal fees, and escape the punishment for such act prescribed by section 7459 of the Revised Statutes, upon the plea that he “honestly believed that he was entitled to such fees,” then, verily, the taxpayers of this state are at the mercy of dishonest officials, and the county treasuries will be looted and plundered at will. Said section is as follows: “When an information in writing, verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services Tendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter :a decree that the party informed against be deprived of his office,' and must enter a judgment for $500 in favor of the informer and such costs as are allowed in civil cases.”
*593Now, it is palpable that the decision in this case violates the statute quoted. The least that may be said is that it amends the statute by interjecting into it something which the legislature did not place there, to wit: “Provided, that if such fees are collected by advice of the county attorney, or the officer honestly believes that he is entitled to charge and collect the same, then the judgment shall be in favor of the officer informed against.” What right has this court to amend or alter or change the statute ? Illegal fees were repeatedly charged by the appellant. The district court so finds. Yet, because the district court finds that appellant “honestly believed” that he was entitled to charge and collect such fees at the time he did so, notwithstanding the statute, he must not be removed, and must be exonerated from the penalties prescribed by the statute. It will be noted that the statute says absolutely nothing about the intention with which the illegal charges are made. If illegal fees have been charged and collected by an officer, the facts stated in a verified information, and proven at the hearing, the court must enter judgment removing the officer and awarding the penalty. The duty of the court is plainly set forth in the statute. It is an assumption of power on the part of the court to change the meaning or terms of the statute, and the court should certainly abstain from imposing terms not prescribed by the statute, or in refusing to obey the express language and intent of the statute.
Upon this particular point I desire to quote further from the decision in Miller v. Smith, supra, where this court, speaking through Mr. Justice Sullivan, said: “Counsel for appellant contend that, while the acts for which their client is accused in many instances were infractions of the law, it has not been proved that said acts were done fraudulently, willfully, or corruptly. The statute itself (section 7459) does not specifically require that fees shall be fraudulently, willfully, or corruptly charged and collected, to warrant the removal of the officer, nor does it declare that neglect of official duty shall be willful or corrupt. The statute contemplates that when illegal fees are charged and collected, or when an officer has refused or neglected to perform the official duties pertaining *594to bis office, and' these facts are properly shown to a court, the informer has made out his case. The proof of those facts is proof of the intent with which they were done, and such acts can only be excused by showing that they were done or not done by reason of a wrong construction of an obscure or doubtful statute, but cannot be excused by a plea of ignorance of the plain provisions of the law. If ignorance of the law will excuse such flagrant violations of the law as are shown in this case, the people are at the mercy of ignorant and corrupt officials, and the plea of every dishonest or corrupt 'official would be ignorance of the law. Officers must be judged by their acts, and not by their plea of ignorance of the plain provisions of the law after its repeated violations,, which result in their pecuniary or other advantage. It is contended by counsel for appellant that the court did not find as a fact that the acts of which appellant is accused were done fraudulently, willfully, or corruptly. Frequent violations of' the plain provisions of a statute, to the pecuniary advantage-of the officer, are probative facts from which the ultimate-fact of intent may be drawn; and while it is true that the trial court did not, under the heading of ‘Findings of Fact/' find that said acts were done fraudulently, willfully, or corruptly, it did, under the heading of ‘Conclusions of Law/ find that said acts were done fraudulently, willfully, or corruptly. .... The remedy provided by section 7459 of the Revised Statutes, to rid the people of a dishonest or incompetent official, is a severe one, but effective, and it serves to stimulate officers to know their official duties, and do them. The time has evidently come in this state when county commissioners must know their duties and do them. If they do. not, something more than a mere appeal from their illegal orders will be resorted to.” I felt it my duty to concur in the opinion written by Mr. Justice Sullivan in Miller v. Smith, supra, and did so. I still concur in the views therein expressed. But the decision in this case is a repudiation of the views expressed in Miller v. Smith, as I have endeavored to-show by quotation from the latter decision. No logical or-sound distinction can be drawn between this case and the case *595of Miller v. Smith, cited supra. In that case Smith, as county commissioner, charged and collected six dollars per diem for twenty-six days spent in looking after road and bridge work, and presented bills for money expended in the construction of roads. In this case appellant charged and collected six dollars per diem for eighteen days spent in looking after roaxl and bridge work, and presented claims for money paid to an attorney, and for mileage ($40.50) for traveling one hundred and thirty-five miles, and other claims for team work. A careful and analytical reading of the opinion in Miller v. Smith, and that of the majority of the court in this case, shows that the case of Miller v. Smith is on all fours with the case at bar. This ease should follow Miller v. Smith and Rankin v. Jauman, supra.
There is another error, according to my judgment, in the decision in this case, and that is in holding that commissioners may pay out funds for the county, and claim and collect them back from the county. Section 365 of the Revised Statutes is as follows: “Members of the legislature, territorial (state), county, city, district and precinct officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members.” Section 1782 of the Revised Statutes, relating to county commissioners, provides: “No member of the board must be interested, directly or indirectly, in any property purchased for the use of the county, nor in any purchase or sale of property belonging to the county, nor in any contract made by the board or other person on behalf of the county,'for the erection of public buildings, the opening or improvement of roads, or the building of bridges, or for other purposes.” Section 1772 of the Revised Statutes, is as follows: “No county officer must, except for his own services, present any claim, account or demand for allowance against the county, or in any way advocate the relief asked on the claim or demand made by another.” This court in Osborn v. Ravenscraft affirmed a judgment in favor of a commissioner for cost paid by him in a suit, holding the appeal in that case “frivolous.” But under the statutes quoted, and that well-defined public policy upon which *596the statutes are founded which prohibits officials from being interested in any public business against the constituents that they represent. I feel that the decision in Osborn v. Ravenscraft is wrong, and not in harmony with our statutes. At any Tate, I feel unable to sanction the doctrine that county commissioners have the right or power, under our statutes, to make themselves creditors of the county. The law provides for their compensation. The law prohibits them from dealing with the county or becoming creditors of the county; and section 1772 of the Revised Statutes expressly prohibits them from presenting any claim against the county, except for personal services. In Miller v. Smith, supra, we held that county commissioners could not draw out of the county treasury money, and use the same in building bridges and roads. What -difference, in principle, is there in that act and the act of building the bridge or road, and paying for it out of the piocket of the commissioner, and then paying it back to him? The principle condemned in Miller v. Smith, supra, is the same us that commended and sanctioned in the decision in this case. Under the laws of this state, county commissioners must hold the sessions of their boards at the county site. They can only act as boards. They cannot act as road overseers, or charge and collect compensation for so doing. If they charge and collect illegal fees, they are subject to removal. These rules, ’however, are not applied to the case at bar. Here the plea of ignorance of plain provisions of the law, presented in the guise of an “honest belief” that appellant was entitled to the illegal fees which he charged and collected, and which this court characterized in Rankin v. Jauman, supra, as “a flimsy excuse, for it does not rise to the dignity of a defense,” and which this court said in that case “must involve something more than mere credulity,” is recognized to the extent of defeating the provisions of section 7459 of the Revised Statutes, -so far as this case is concerned. I cannot assent to such action by this court. The judgment in this case should be affirmed.
(June 20, 1901.)