Dissenting. — The appellant at and prior to the date upon which the charges herein were filed was the duly elected, qualified and acting sheriff of Custer county. A quarantine had been established in a portion of the county, radiating out from Challis, the county seat, for the purpose of preventing persons living without the boundaries of the district designated from coming therein, and thereby preventing the introduction of Spanish influenza into that locality. From the record it clearly appears that the people, particularly in and about Challis, were panic stricken, even to the extent that they barricaded themselves against officers of the federal and state government entering the town. Their wire entanglements quite equaled, if they did not surpass, those constructed by the powers opposed to the allies during the great war. While this condition was at its height, respondents entered the restricted district, and a warrant was placed in the hands of appellant, as sheriff, to apprehend them.
There is no question raised here involving the regularity or validity of the warrant, or its proper service, but the sole question is whether the facts disclosed constitute nonfeasance in office, or a refusal or neglect on the part of appellant to perform the official duties pertaining to his office, within the provisions of C. S., sec. 8684.
Dismissing all consideration — as should properly be done— of all charges contained in the information which were found by the trial court not to be sustained by the evidence, and *572directing our attention only to the charges which were sustained and set out in the findings of fact, the record shows the court found that on November 5, 1918, the appellant arrested the respondents at or near Clayton, Custer county, pursuant to a warrant issued out of the probate court, and conducted them to Challis, arriving there about 3 o’clock P. M., and immediately lodged them in the county jail; that he failed and refused to take them before the probate judge before locking them up in the county jail; that they demanded of appellant that he permit them to consult counsel; that he take them before the probate court or judge, and give them an opportunity to give bail, all of which he refused to do, and refused and' neglected to take them before any other magistrate; and that all of the said acts were done knowingly, wilfully and intentionally.
Upon the foregoing facts, the court found as conclusions of law, that the defendant refused and neglected to perform the official duties pertaining to his office as sheriff; that he should be deprived of his office as sheriff; and that the said informers have judgment against him for $500 and costs of suit.
C. S., see. 8720, provides that: “The defendant must in all cases be taken before the magistrate without unnecessary delay and any attorney at law entitled to practice in courts of record of the state of Idaho may, at the request of the prisoner, after such arrest, visit the person so arrested.”
The respondents were taken before the magistrate who issued the warrant, but it is insisted that they were not taken before such magistrate “without unnecessary delay,” and that the appellant is, therefore, subject to removal from office, under the provisions of C. S., sec. 8684, for having refused or neglected to perform official duties pertaining to his office.
With this position I am not in accord, for the reason that appellant, as shown by the record, took the respondents before the officer who issued the warrant. A refusal or *573neglect to perform an official duty is a nonfeasance. Misfeasance is a default in not doing a lawful act in a proper manner, omitting to do it as it should be done; while malfeasance is the doing of an act wholly wrongful and unlawful. (Coite v. Lynes, 33 Conn. 109.)
If appellant had not taken respondents before the magistrate, he would have been guilty of a failure to perform an official duty pertaining to his office. The fact that he did not proceed “without unnecessary delay” may have constituted misfeasance or malfeasance, depending upon the particular facts which should be submitted to and ultimately found by a jury, in that he did not do a lawful act in a proper manner, or in wrongfully and unlawfully confining the informers in the county jail instead of taking them without unnecessary delay before a committing magistrate.
We think the oldest and one of the leading cases in point upon this question, and most frequently cited, is the case of People ex rel. v. Burnside, 3 Lans. (N. Y.) 74.
In that case certain commissioners were removed from office upon the ground that they had wilfully neglected or refused to perform their duties in selling and disposing of stock held by the town, on credit, although they had disposed of the stock. In construing the provisions of chap. 384 of the Laws of New York of 1859, section 5, which reads as follows: “In case any commissioner under the said act, . . . . , shall refuse or wilfully neglect to perform any part of the duties specified therein, or required by this act, his office shall thereupon become vacant; and upon proof of the fact, to the satisfaction of the county judge of the county wherein such commissioner shall reside, he shall appoint some other person to fill his place, in the manner now provided by law,” the court said:
“The wilful neglect and refusal upon which the order was based was, that the commissioners had done an aet in violation of their duty, and had been guilty of misfeasance in office, and was not upon the ground of a refusal to perform, or a wilful nonfeasance.....In order to make out a case *574within the provisions of the section cited, there must be an absolute refusal or a wilful neglect to perform some duty imposed by the act. The statute evidently was not intended to punish the commissioners for positive acts done by them in violation of law, but for contumacy, in refusing to obey the mandate of the law, and for wilfully and unlawfully neglecting to do what was required by the plain terms and import of the statute.”
In the course of the opinion, the court also says:
“This provision is highly penal in its character, and inflicts a severe penalty upon the delinquent who has violated its requirements. The jurisdiction conferred is limited and special, and the proceeding for the enforcement of the act is of the most summary and rigorous character. The rule is well established, that penal statutes, in declaring what acts shall constitute an offense, and in prescribing the punishment to be inflicted, are to be construed with strictness and rigor.”
In the case of State v. Alcorn, 78 Tex. 387, 14 S. W. 663, that court, in discussing a statute providing for the removal of officers, says:
“The statute under consideration is one penal in character, and must be construed as though it were one defining a crime and prescribing its punishment.
“If the respondent violated his official duty, whether this resulted from wilful act or not, he would be responsible to any person injured thereby, for intent with which his act or refusal to act was accompanied would not be an inquiry; but when it is sought to remove him from office on account of official misconduct animus becomes an important inquiry.” (78 Tex. 393, 14 S. W. 665.)
As was said by the Michigan court in People ex rel. Metevier v. Therrien, 80 Mich. 187, at 195, 196, 45 N. W. 78, 80:
“The right to hold this office is just as sacred in the eyes of the law to Metevier as the right to hold the property he has earned. It is a property right, and one of which he can only be divested by a strict conformity to the statute.....
*575“The people of Mackinac county have rights also, as well as the accused. They have the right, under the constitution, to elect their county officers, and to have such officers serve out the terms for which they were elected. It was not contemplated by the constitution that such officers should be removed but for grave reasons. ’ ’
"We do not wish to be understood as holding that the right to hold a public office is a property right. That question is not here for decision.
The very object of this statute is to rid the community of corrupt, incapable or unworthy officials. There is no suggestion that appellant is not in every way competent to fill the office. So far as this case reveals, his personal character and standing in the community are unimpeached. To say that such an officer is to be removed in disgrace from the office to which he has been elected by the county — conceding that he was guilty of malfeasance or misfeasance in office, for which he is responsible in damages — upon the theory that he is guilty of nonfeasance, is to sanction a shocking misinterpretation and misconstruction of the statute, and is a determination of questions of fact which the court could not rightfully withdraw from the jury. For a clear and concise statement of the principles of law, as hereinabove briefly set forth, I invite attention to the case of State ex rel. Barker v. Meek, 148 Iowa, 671, Ann. Cas. 1912C, 1075, 127 N. W. 1023, 31 L. R. A., N. S., 566, and note.
The rights of society will not be adequately protected and the will of the people will be defeated if every executive officer in this state is to be removed at the instigation of an informer and penalized in the sum of $500, for failure to take a person arrested immediately before a magistrate, where the arrest is made in a lawful manner and upon a warrant regular upon its face, no matter what the circumstances might be, or the condition of the party arrested, upon the theory that such officer is guilty of nonfeasance, and without an opportunity to show that he acted without malice, or in good faith and with an honest intention to *576perform the duties of his office according to his understanding of his authority under the law.
In the ease of State v. Waller, 7 N. C. 229, it was held that a person may be arrested for drunkenness, upon view, when it is a public nuisance. The question occurs: What is the officer to do with the offender when he shall have been arrested without a warrant? All authorities agree that he should be carried as soon as conveniently may be before some justice of the peace, and if he is arrested at a time and under such circumstances that he cannot be carried immediately before a justice, the officer may commit him to jail or lock him up, according to the nature of the offense and the necessity of the case.
In the case of State v. Stalcup, 24 N. C. 50, it is held that the officer was the judge of the necessity, but if he be guilty of a gross abuse of his authority and do not act honestly, according to his sense of right, but under pretext of duty is gratifying his malice, he is liable to indictment. The jury must judge of his motive from the facts submitted to them. (State v. Freeman, 86 N. C. 683.)
It was held in Keefe v. Hart, 213 Mass. 476, Ann. Cas. 1914A, 716, 100 N. E. 558, that it is the duty of a policeman, arresting one without warrant, to take him before the magistrate as soon as reasonably possible, that the magistrate may determine whether there is ground to hold the prisoner, and that it cannot be determined as a matter of law that a delay of an hour and a half, by officers arresting without a warrant, in taking the prisoner before a magistrate, was reasonable, since such delay might have been beyond the time of adjournment of the magistrate’s court, and involved a further delay; the question becoming one of law only when the facts are agreed.
As was said in the case of State v. Meek, supra: “ . . . . if a county treasurer is to be conclusively held guilty of a wilful violation of duty subjecting him to a removal from office for every voluntary act or omission for which we may find no warrant in the statute, no matter how clear his *577honesty of purpose or how manifest his competency for the position, or how perfectly the public is protected against injury or loss .... then there is no place or point to draw the line in the administration of any office short of absolutely perfect observance of the statute, not merely as it apparently reads, but as the court in its wisdom, or lack of it, construes it to read.....That such technical violations, against which an ordinary civil action in damages affords a complete remedy, should be classed as impeachable offenses calling for the removal of an officer, is intolerable..... Suppose the clerk to be so delayed by the pressure of other official work that his report is not filed until a day or two after that day is passed, is he guilty of wilful misconduct in office? The county auditor is required to make report of certain expenses to the clerk of the district court on October 15th of each year. Suppose that, acting in good faith, he fails to present his report until October 16th, and when he appears for that purpose the clerk says to him, ‘I have not yet closed my books and accounts of yesterday’s business, and will file your report as of that date,’ and, this being done without any wrongful motive and in the belief that they could rightfully do so, are they both chargeable with wilful misconduct? Or if an assessor in the honest, but mistaken, belief that certain property is not taxable, omits it from his roll, is he therefore and as a matter of law subject to removal from his office?”
The statute should be reasonably construed and not arbitrarily. The right of vindication should never be denied, neither should a court assume the prerogatives of a jury. Malfeasance and misfeasance should not be confused with and held to be nonfeasance.
In the instant case, the appellant and the people generally within the bounds of the quarantine district were panie stricken. Hotels were not open for the reception of guests, nor could they find lodging or entertainment in private homes or at public resorts. "Whether the actions of the *578sheriff, in an action against him for false imprisonment, were snch that as a matter of law he would be guilty, or that the conditions and circumstances existing at the time of the arrest of the respondents and their incarceration in the county jail would warrant a mitigation of damages, are questions which should have been properly submitted to the jury, in a proper action by the parties injured. We think this court should take judicial knowledge of the prevalence of the disease known as Spanish influenza, and the various proclamations and orders issued by federal, state and county health officials, and the fact that the courts of the state were adjourned from time to time, and churches and schools were closed, until the disease subsided.
Conceding that the sheriff and those associated with him acted unreasonably, and even admitting that his acts were wrongful and that he would be answerable in damages, he did not, under the facts disclosed in the record in this ease, refuse or neglect to perform the official duties pertaining to his office, within the meaning of C. S., sec. 8684, and we are not called upon to decide whether he was subject to removal under the provisions of C. S., secs. 8670 and 8671.
There is no merit in the contention made that appellant should be removed under the provisions of sec. 8684, supra, upon the ground and for the reason that he failed and refused to allow respondents to consult counsel. The record shows that they did consult their counsel, and that a writ of habeas corpus was issued for their release, and it was the duty of the sheriff to obey the writ, for which he may have been subject to removal, and his failure to do so was reprehensible. But the trial court found in his favor, and this matter is not here for review, and should not influence this court in its ultimate conclusions, but should be disregarded in like manner with every other charge made which in the opinion of the trial court was not supported by the evidence and is not here for the purpose of review.
We agree in the statement made in the majority opinion to the effect that the conduct of the sheriff was not such as *579should receive commendation at the hands of this or any other court, but we are not of the opinion that the judgment should be sustained.
McCarthy, J., concurs.