concurring. Section 1 of the act of the legislature found in the Statutes of 1881, which deals with the fixing of water rates, casts a duty upon the board of supervisors of the city and county of San Francisco of fixing those rates in the month of February of each year. Section 8 of the same act declares: “Any board, of supervisors or other legislative body of any city and county, city, or town, which shall fail or refuse to perform any of the duties prescribed by this act at the time and in the manner hereinbefore specified, shall be deemed guilty of malfeasance in office, and, upon conviction thereof at the suit of any interested party in any court of competent jurisdiction, shall be removed from office.” The board of supervisors of the city and county of San Francisco failed to fix water rates in the month of February, and thereupon, at the suit of one Fitch, and under the authority found in the aforesaid section of the act of 1881, the supervisors of said city and county have been removed from office by the judgment of the superior court.
The construction given this act by the learned judge of the trial court, as evidenced by the judgment rendered, is that the *488word “board” has reference to and includes individually all tbe members of tbe board. Tbis is apparent when, upon inspection, we find tbe judgment removing each member of tbe board from office. This construction is evidently tbe sound one, and the only reasonable one that can be given tbe act, for a “board of supervisors” is an entity only when in session. It could not be guilty of a malfeasance in office, and certainly could not be convicted of a malfeasance in office. Again, tbe “board” bolds no office, and therefore of necessity could not be removed from office. Hence, the section has no intelligible meaning, unless tbe word “malfeasance” be held as applying to the members individually constituting tbe board. This is tbe necessary construction of the act, 'and such construction renders it palpably unconstitutional. It violates fundamental principles of law. Tbe legislature has no power arbitrarily to deprive men of valuable rights. It has no power to declare an office forfeited because, forsooth, tbe bolder of another office has failed to do his duty. Justice is not administered that way. Proceedings under this section are quasi criminal, and one person may not be punished for the crimes of another. Under tbis section the innocent and the guilty are punishable alike, and the law never justifies the punishment of a person who has committed no crime. A public official who has clone his duty in all things is not guilty of malfeasance in office, and tire legislature has no power to so declare. If section 8 of the act had declared the penalty to be a fine of five hundred dollars, or an imprisonment in the county jail for thirty days, rather than removal from office, it could hardly be contended by anybody that a supervisor who- had done everything in his power to carry out the law in the fixing of water rates could be fined or imprisoned because tbe rates were not fixed in tbe month of February. No act of the legislature could furnish legal justification for such a proceeding; and the fact that this judgment is one of forfeiture of office, rather than fine or imprisonment, is wholly immaterial.
The legislature has power to fix the tenure of office. It has the power to declare that upon the happening of a certain event that official tenure shall cease; but it is evident that such was not the intention here. By this act the legislature was not fixing terms *489of office. This section was enacted in furtherance of the constitutional provision which provides that the legislature may declare penalties for a failure to fix water rates. The purpose of the legislature in enacting section 8 was to visit a- penalty upon each member of the board of supervisors in the form of a forfeiture of office for a neglect of the board to ñx rates. The phrases “guilty of malfeasance in office.,” and “upon conviction,” which are found in the act, abundantly indioate that this was the purpose of the section.
Section 11 of article XX of the constitution declares: “Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes.” We here find “malfeasance in office” placed in the category of high crimes, and the legislature directly empowered to cut off the rights of citizenship from all those adjudged guilty thereof. The supervisors have been convicted of malfeasance in office. Grave consequences follow from such a conviction, and no legislative act, however explicit its intention, can visit those consequences upon innocent men.
For the foregoing reasons, the law is unconstitutional, the judgment of the trial court removing the individual members of the board of supervisors from office void, and the writ of mandate should issue. I concur in the judgment.