Specially Concurring. — In the able and instructive briefs and oral argument of appellant’s counsel on the rehearing of this cause, they direct our attention to the language used in Ponting v. Isaman, 7 Ida. 581, 65 Pac. 434, wherein at page 581 of the Idaho Report (65 Pac. 435) it is said: “The court thus found that the appellant was honest in the discharge of his duties and in making charges against the county. In the enactment of said see. 7459 (C. S., sec. 8684) we do not believe it was the intention to visit the severe penalty provided by said section when the officer acts in perfect good faith, and under an honest conviction that he is acting within the law, or for an honest error of judgment when honestly acting under the advice of the legal adviser provided for him by law,” and counsel very pertinently inquire if it is the intention of this court to now depart from the doctrine there announced. It must be conceded, as pointed out by Mr. Justice Quarles in the dissenting .opinion in that ease, that the rule as therein announced, when applied to the facts of that case, cannot be reconciled with a number of decisions of this court, both earlier and later than this pronouncement. (See Rankin v. *545Jauman, 4 Ida. 53, 36 Pac. 502; Rankin v. Jauman, 4 Ida. 394, 39 Pac. 1111; Ponting v. Isaman, 7 Ida. 283, 62 Pac. 680; Miller v. Smith, 7 Ida. 204, 61 Pac. 824; Robinson v. Huffaker, 23 Ida. 173, 129 Pac. 334.)
In Miller v. Smith, supra, at page 213 in the Idaho Reports, this language is used: “The statute itself, R. S., sec. 7459 (C. S., sec. 8684), does not specifically require that fees shall be fraudulently, corruptly or wilfully charged and collected, to warrant the removal of the officer; nor does it declare that neglect of official duty shall be wilful or corrupt. The statute contemplates that when illegal fees are charged and collected, or when an officer has refused or neglected to perform official duties pertaining to his office,' and those 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.”
In Robinson v. Huffaker, supra, it is said: “It is the duty of a public officer to obey the law, and he cannot justify his acts in not doing so upon the ground that he does not believe it will be necessary to obey such law.”
I understand that the majority opinion holds that an officer who is not subject to removal under the impeachment provisions of the constitution is subject to removal under C. S., sec. 8684, under either one of two conditions: (1) whenever he has been guilty of charging or collecting illegal fees for services rendered or to be rendered in his office (2) or has refused or neglected to perform official duties pertaining to his office, notwithstanding his honesty of purpose, and that this holding is in harmony with the earlier decisions, excepting possibly the Ponting v. Isaman case, supra. In the more recent case of Archbold, v. Huntington, 34 Ida. 558, 201 Pac. 1041, in discussing the question of intent, it is' said that this statute; “Does not *546require any intent to violate law, in the sense of having an evil or corrupt motive or intent. It does imply a conscious wrong, and may be distinguished from an act maliciously or corruptly done, in that it does not necessarily imply an evil mind, but is more nearly synonymous with ‘intentionally,’ ‘designedly,’ ‘without lawful excuse,’ and therefore not accidental.”
Not every infraction or departure from the strict letter of the law will subject an officer to removal under this statute, for the law does not concern itself with' trifles, nor does it require a degree of efficiency and exactness in the performance of official duties that cannot be reasonably complied with in the exercise of ordinary care and diligence. But where .there has been such a plain departure from the requirements of the statute as is shown in this case, the official cannot escape the consequences of his wrongful action by a claim that he acted in good faith, without any evil or corrupt motive. As stated in Rankin v. Jauman, supra, at page 65 of the Idaho Report, (36 Pac. 506): “The right of the legislature to provide for the summary removal of incompetent or inefficient officers is' no new doctrine .... it arises from the exigencies of government.”
With regard to the fiftieth or last cause of action, wherein it is charged that appellant failed to perform an official duty in not requiring the treasurer to give additional bonds from time to time, in such amount as should be fixed by the board upon its estimate of the probable amount of money coming into his hands, it appears that the commission was advised by reputable counsel that this provision of the statute was directory and not mandatory, and that it accepted and acted upon this advice. It also appears that under the plans adopted by the commissioners, it was arranged that all funds coming into the treasury should be kept in certain banks, which executed bonds for the protection of this money, resulting in a substantial saving to the district in not being required to procure additional bonds for its treasurer, imposing that burden upon the banks, *547which assumed it for the purpose of having this money on deposit with them until it was used. While this is not a compliance with the statute, I am of the opinion that it having taken a bond, its failure to require additional bonds of its treasurer, under the facts and circumstances disclosed by the record in this case, would not be such an omission to perform an official duty as would render the commissioners subject to the penalty of this statute. Had the funds of the district been deposited with the treasurer without the requirement of additional bonds sufficient to protect the same, or had loss resulted through depositing this money in the banks, which were bonded for its safekeeping, such failure might have been malfeasance, but in my view it does not constitute such nonfeasance within the meaning of the statute as would render the commissioners subject to removal.
The failure of the board to audit and allow claims presented against the district, and the disbursement of more than a million dollars in the manner pointed out in the majority opinion, constitutes such a clear and unmistakable violation of the statute that to hold that public officers might escape the consequences of such action upon the ground that the method of payment prescribed by the statute was impractical, and that they had adopted a better system, and had acted in entire good faith in so doing, without consequent loss to the public, would be tantamount to repealing this statute, which is the province of the legislature and not of the courts. I therefore concur in the affirmance of the judgment of the court below.