I have not concerned myself in the consideration of the question as to whether or not Fitch is a proper party to inaugurate this proceeding. My conclusion rests upon the broad proposition that the act is unsound legislation and should be so declared.
When this case was here some time ago upon a preliminary proceeding, I had occasion to investigate the law bearing upon it, and gave my views in a few words as to the proper construction of the statute under which this prosecution is based. (Morton v. Broderick, 118 Cal. 487.) At that time I thought the charge was essentially criminal, and, being so, no law could stand which punished innocent officeholders because some other officeholder may have been guilty of malfeasance in office. Upon *291such construction the law impressed me as violative of fundamental principles and necessarily unconstitutional. The time intervening since that decision was rendered has only served to more firmly convince me of the soundness of the views I then expressed.
As a civil proceeding, the judgment rendered can only stand upon the theory that the act of the legislature upon which the proceeding was based is in the nature of an act fixing the tenure of office of the various public officers of the state, whose duties under this statute demand the fixing of water rates in the month of February of each year. Such a construction of the statute cannot be assented to for a moment. It is not an act purporting to fix or regulate the term of office, but rather an act to punish certain public officers for violation of official duty by depriving them of the remaining portion of their terms of office. There is an express provision of the law declaring the official term of these officers to be two years. Construing this act as a tenure of office act would place it in direct opposition to this express declaration of the law. This statute was enacted under authority and direction of that provision of the constitution of the state which declares that the legislature may prescribe penalties for a failure upon the part of boards of supervisors to fix water rates in the month of February. How can it now be held that the legislature, in pursuance of such authority granted by the constitution, passed an act fixing the tenure of office of the supervisors of the state? If such be the character and purpose of the act it is neither authorized nor in line with this authority granted by the constitution. The fair, reasonable, and proper construction of the act is, that the legislature, in pursuance of the authority and direction of the constitution, prescribed a penalty for failure of the supervisors to fix water rates, at removal from office. This act would have been no more criminal in character if the legislature had prescribed the penalty for failure to fix the rates at imprisonment in the county jail for six months, or a fine of five Hundred dollars. It must be conceded by everyone that the judgment of removal from office is a penalty. Yet all must recognize the fact that a penalty is but a punishment inflicted upon a wrongdoer. A party wholly guiltless cannot be made to suffer a penalty. And if this removal from *292office is a punishment to be inflicted upon an officer for nonperformance of official duty, then this act is not one pertaining to the tenure of office.
The legislature has the power to fix the tenure of office of the various county and municipal officers, and in the exercise of such power may declare the expiration of the term to take place upon the happening of some future event, which may or may not happen; but, if such event does happen, the officeholder goes out of office because his term of office has expired under the law. His term has expired as absolutely as though the day fixed for its expiration had been known at all times. But there is no semblance of a penalty suffered by the officeholder in such a case; no punishment is inflicted upon him. In other words, if the removal from office attaches as a penalty to the officeholder, the act authorizing the removal can in no sense be treated as an act relating to the tenure of office. Again, there is nothing in the act in any way indicating that it was the purpose of the legislature to legislate as to the tenure of office of members of the boards of supervisors of the state. To the contrary, every paragraph and almost every line of the act indicates that the legislature intended by its provisions to punish supervisors by removal from office for failure to fix water rates in the month of February. The phrases “guilty of malfeasance in office” and “upon conviction,” found in the act, are not harmless, innocent terms, and would be found in no act dealing with tenure of office. The attention of the court has been called to no act in this state or elsewhere, of general similar import, which has ever been construed as an act relating to the tenure of office. It is assumed there is none. A judgment that these supervisors have been guilty of malfeasance in office—and such is the judgment required to be entered by the act itself—cannot be justified under a purely innocent act relating to the tenure of office.
It is substantially conceded by counsel for respondent that, if the statute is essentially penal and the action essentially criminal, then this judgment cannot stand. That it is an act penal in character, that it is an act essentially and directly aimed at the punishment of supervisors for the nonperformance of official duty, must be conceded. Many reasons why the act does not contemplate a criminal action are suggested in the various briefs *293of respondent’s counsel. These reasons are based largely upon the peculiar character of procedure to be followed. It is only necessary to say that every reason suggested was carefully considered in the very recent case of Kilburn v. Law, 111 Cal. 239, a case involving an attempt to remove the bank commissioners from office for the nonperformance of official duty. A single difference divides the two cases—the fact that the prosecution was there commenced under section 773 of the Penal Code, and here brought under a general statute of the state. This difference is wholly insignificant. In that ease it was declared that the proceeding was criminal, although it bore substantially all the marks of a civil action found in this case. As indicating that the particular character of procedure to be followed in a case like the present does not brand its character as either a criminal or civil action, it is sufficient to say that the constitution of the state, article IV, section 18, after providing for the impeachment of various state officers, declares: “All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide.” It is thus apparent that the doors are left wide open by the constitution for the legislature to provide for the trial of municipal officers for misdemeanor in office in any way that body may see fit. Under the very terms of the constitution the power of the legislature in such matters is exclusive and supreme.
In conclusion, we find the principles involved in this case covered as by a blanket in Case of Marks, 45 Cal. 199. That case as authority has stood for a quarter of a century, quoted and approved by this court upon many occasions. It was the unanimous decision of the court—a court composed of eminent jurists. Marks, a harbor commissioner, was charged at the instigation of a private citizen with neglect of official duty under an act of the legislature passed in 1853. In all essentials the constitution of the state at that time was the same as we find it now. In its opinion the court in that case, defining the scope of the act, declared: “It is provided in substance in the act of 1853 that any person holding any office in this state, who shall neglect to perform his official duty according to law, shall be deprived of his office.” It will thus be observed that the act is mild and bland-like in its language as compared to the act in*294volved in this ease, but at the same time it is equally apparent that it is entirely identical in principle. After exhaustive argument and consideration the court there laid down certain principles of law which are absolutely controlling here. It was first decided that neglect of official duty amounted at common law to an impeachable misdemeanor in office, and upon conviction the officer must be removed. It is next declared: “There can be no doubt that the case made by the complaint is one directly within the provisions' of the act of 1853. That act was designed to afford a remedy of a summary character against officeholders who were guilty of extortion or neglect in the performance of official duty, and the case of Marks is brought by the complaint within the latter category.” It is next declared: “The act of 1853 does provide how, in what manner, upon what procedure, in what court, officers not of the first class shall be tried for that misdemeanor in office known at common law and recognized in this statute as neglect of official duty. The power of the legislature to enact such a statute (under the latter clause of section 18) is plain—as obvious as is the power of the assembly to prefer, and that of the senate to try, articles of impeachment under the first clause of the same section.” It is next declared: “The power to remove certain officers for misdemeanor in office is exercised only by the assembly and senate under the name of impeachment—the like power to remove all other officers under like circumstances and for like causes is to be exercised fin such manner as the legislature may provide.’ The power to provide the manner in which a delinquent is to be tried in the second case is on a footing with the power to directly remove the delinquent by the judgment of the senate in the first case.” In conclusion, and as absolutely controlling this whole question, the court declares: “It is the exercise by the district court of the power to remove from office upon conviction had, which is in fact the power of impeachment, and is impeachment in every respect except the mere form of procedure pursued.” It is thus apparent that the proceeding in the present case upon principle and authority is in all material respects a proceeding to- impeach these municipal officers for a nonperformance of official duty, by a procedure laid down by the legislature under direct authority from the constitution; for that authority declares that *295these officers may be “tried for misdemeanor in office in snch manner as the legislature may provide.” The act before us provides a manner of trial for such officers. The proceedings under this act being in the nature of impeachment, it only remains to be said that the impeachment of a public officer for nonperformance of official duty is the highest form of criminal action.
By this act of the legislature nonperformance of official duty in fixing water rates in the month of February is declared to be malfeasance in office. These supervisors, under authority of this act, and by the judgment of the trial court, in effect have been impeached for malfeasance in office. The act provides that all supervisors comprising the board, innocent and guilty alike, must suffer such penalty of impeachment. In this very case the trial court declared that some of these defendants were wholly innocent of any violation of the law, and yet in the face of that fact removed them from office. The legislature has no power to pass an act visiting these serious consequences upon innocent men, and, as a necessary result, any act attempting to enforce such a power is unconstitutional. A determination as to the exact limits of the power of the legislature in declaring what acts of the individual shall constitute a crime is an interesting, and possibly a difficult, question, considered in the light of the constitution. But there is no difficulty in declaring, in the light of the constitution, that a legislature has no power to say that one man wholly innocent is guilty of crime and shall be punished because another man fails to perform his official duty. The power of the legislature reaches no such limit. It cannot be done under our form of government. I shall not concern myself in pointing out the particular provision of the constitution forbidding it. I find it between the lines. The whole spirit of the instrument denies the right to do it.
I concur in the judgment and order of reversal.