dissenting. The charges against the defendant, which are contained in the three counts of the indictment, axe that lie, as the clerk of the council of the City of Atlanta, was guilty of bribery, in that he received sums of money to influence his behavior in the discharge of his official duties as clerk, it being specifically alleged that he received money for his services in obtaining from the City of Atlanta a sum of money in settlement of a pending litigation to which the city was a party, procuring the construction of a sidewalk, and also in procuring the repeal of a resolu*411tion of the General Council which' recommended to the State legislature the inclusion of certain territory within a proposed extension of the corporate limits of the city, and that these services included the procurement by Taylor of the passage of ordinances and a resolution by the legislative authorities of the City of Atlanta, and his services as clerk of the council in stamping the ordinances and the resolution as approved by the council and the aldermanic board, transmitting them to the aldermanic board and the mayor, certifying to their adoption and transmitting certified copies of them to the governmental departments of the city.
It was not within the official duties of the clerk of the council of the'City of Atlanta to vote upon ordinances or resolutions of the legislative authorities of the city, or to procure the passage of such' ordinances or resolutions, or to negotiate settlements of claims for money against the city, or to procure the laying and construction of sidewalks in the city or putting the ordinances or resolutions into effect. The only official conduct of the defendant Taylor as clerk of the council which, as alleged in the indictment) was influenced by the money alleged to have been paid to him, was his affixing a stamp evidencing official approval upon the ordinances and the resolution, transmitting them from one body to another, making certified copies of the ordinances and the resolution and transmitting the copies to the departments of government. Unless Taylor accepted money to influence his conduct in some one of these respects he is not guilty of the offense of accepting a bribe, notwithstanding he may have accepted money to influence his conduct as respects the other acts alleged, viz., procuring the passage of the ordinances and a resolution and negotiating the settlement of a claim against the city and procuring the construction of a sidewalk in the city. Taylor v. State, 42 Ga. App. 443 (156 S. E. 623).
As respects the charges against him, Taylor entered upon the trial with a presumption of innocence in his favor. This presumption must be overcome by evidence, whether direct or circumstantial, which authorizes beyond a reasonable doubt the inference that he is guilty of the crime of bribery as charged. Taylor’s conduct in accepting money for his services in bringing about the desired results must be construed with reference to this presumption. If he accepted money for the purpose of rendering services in getting certain ordinances and a resolution through council and accomplish*412ing the desired results of settling a claim against the city, the laying of a sidewalk, etc., and if he could have accepted the money for the rendition of such services without selling his official conduct and without accepting the money as a bribe to influence his official conduct, presumably he did not accept the money as a bribe to influence his official conduct as clerk of the council with reference to stamping, transmitting, and certifying as to ordinances and a resolution of the legislative bodies of the city. Therefore, in order to overcome this presumption that Taylor, in accepting the money for his services was innocent of accepting it as a bribe to influence his official conduct in the respects indicated, there must be adduced competent evidence, either direct or circumstantial, which would authorize the inference beyond a reasonable doubt that he accepted the money as a bribe to influence his official conduct.
In so far as there appears from the evidence any express agreement as respects the employment of Taylor’s services, it was merely that he would use his influence to obtain the passage by the legislative bodies of the city of certain ordinances and a resolution and thereby accomplish certain results desired by those who employed him. The means and methods of accomplishing these results were left to Taylor’s discretion. It was not agreed that he would use any illegal methods. As to the performance by Taylor of any official duty, the agreements are silent. As respects two of the counts in the indictment, viz., those having reference to the construction of the sidewalk and to the exclusion of certain territory from inclusion in the proposed city limits, there is direct and positive testimony, which is not disputed by any other testimony of the same character, that Taylor’s employment did not include the influencing of his conduct as respects Ms official duties as clerk in stamping, transmitting, and certifying as respects any ordinance or resolution of the legislative bodies of the city.
The express agreements made with Taylor by which he was to use his influence to obtain the passage of certain ordinances and a resolution by the legislative bodies of the city and accomplish certain results, and which contained no express undertakings by him to do any illegal act or to perform any official duty, were perfectly legal. The rule with reference to the construction of contracts is that where there is an express contract which contains no stipulations to do an illegal act, an agreement to do an illegal act will not *413be read into tlie contract by implication. As stated in 13 C. J. 242, “a contract will not be implied where it would result in the perpetration of a wrong, or it would be inequitable to do so, or where the parties can not legally make an express contract, so a promise to do an act contrary to duty or to law is never implied.”
There being no express agreement that Taylor was employed to do any official act as clerk, or that he received any money to influence his official conduct as clerk, no such agreement is implied. If it was contemplated that Taylor’s official conduct would be influenced by the money which was paid to him, this fact can be established only by inference from the evidence adduced. Other than evidence that Taylor was the clerk of the council and that the performance of ministerial duties of the clerk of the council, such as stamping, transmitting and certifying as respects ordinances and resolutions, was necessary to facilitate their enactment and the putting of them 'into effect and accomplishing the results desired, there is not one scintilla of evidence in the entire record which would authorize the inference that the money was paid to Taylor, or received by him, to influence his official conduct as clerk of the council.
“Bribery” as defined in section 270 of the Penal Code of 1910 is “the giving or receiving any undue reward to influence the behavior of the person receiving such reward in the discharge of his duty in any office of government or of justice.” There can be no bribery except of a public official, and as respects his guilt as a recipient of a bribe he must have received money, or something of value, to influence his conduct in office. Bribery, as defined in 9 C. J. 402, “is the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done; the giving, offering, or receiving of anything of value, or any valuable service, intended to influence one in the discharge of a legal duty; or the crime of offering any undue reward or remuneration to any public officer, or other person intrusted with a public duty, with a view to influence his behavior in the discharge of his duty.” Prom other definitions of bribery, taken from Blackstone, Hawkins, Bishop, Russell, and others, and from decisions of the courts, as quoted in notes to the text in 9 C. J. 402, the influencing of official conduct appears to be an essential element of the offense of bribery. Therefore any payment of money to a public official, when made to and accepted by him as a loan, or for services to be rendered by *414him, where the money was neither paid to him nor accepted by him for the influencing in any way of his official conduct, does not constitute bribery. To “influence,” as defined in Webster’s Dictionary, is to “move,” “persuade,” “affect,” “modify,” and also, as defined in the Standard Dictionary, to “affect or sway by motives, as the feelings or conduct;” “sometimes as a euphemism for ‘bribe;’” “exercise of a moral or secret control over the actions of others;” “sometimes, power of privately controlling the acts of those in authority.” Since it is essential to the offense of bribery of a public official that his official conduct be influenced, i. e., be affected, etc., by the money or thing of value paid him, a public official, when paid money or anything of value for his services in bringing about certain results, although these results can not be accomplished otherwise than by the performance of certain official duties, is not guilty of accepting the money as a bribe for the performance of these official duties unless he received and accepted the money to infhience his official conduct in the performance of these duties, or his official conduct was influenced thereby. It is suggested that the employment of Taylor to procure the passage of the ordinances and resolution and to accomplish the desired results, necessarily included the doing of all acts in the premises necessary to the accomplishment of these results, and that, since the performance of these ministerial official duties by the clerk was necessary to the accomplishment of these results, the payment of the money to Taylor necessarily influenced his official conduct as respects the performance of these duties. Although the performance of such ministerial duties as stamping the ordinances, etc., by the clerk may have been necessary to facilitate the procurement of the passage of the ordinances and resolution and the accomplishment of the results desired, for which Taylor was employed, it does not necessarily follow therefrom that in Taylor’s employment to bring about these results and his acceptance of money for his services in the matter his official conduct as clerk in stamping the ordinances, etc., was influenced.
Presumably every public official properly performs the duties of his office. This is not merely a legal fiction, but is a presumption which every man in the ordinary walks of life acts upon in dealing with public officials. Presumably, therefore (and there is nothing in the evidence which would authorize an inference to the contrary), these ministerial duties of the clerk, as respects which it is alleged *415Taylor accepted a bribe to perform, would have been performed as a matter of course by him as clerk, or by any one else who at the time might be the clerk of the council. So far as this evidence discloses there was no necessity to pay Taylor anything to influence or induce the performance by him of his official duties as clerk in stamping, transmitting, and certifying as respects any ordinance or resolution of the legislative bodies of the city. He was not holding out on anybody in refusing to perform such official duties. It was not contemplated that he should exercise his official duties to the advantage of his employers by falsely entering as approved, or transmitting or certifying as to, ordinances or resolutions which had not lawfully passed the legislative bodies of the city. It therefore must be taken as a fact undisputed that the persons employing Taylor would obtain whatever benefit might accrue to them in Taylor’s discharge of his official duties as clerk in stamping, transmitting, apd certifying as respects the ordinances or resolution, without any expenditure whatsoever. These services they were entitled to receive for nothing, and it was not necessary to pay anything for them. The only services needed of Taylor, and which his employers could not get for nothing, were his services as a man of diplomacy and political influence in obtaining the passage of ordinances or resolutions by the legislative bodies of the city, and obtaining for his employers certain beneficial results desired by them, all of which' could have been obtained without the payment of anything to Taylor as clerk of the council, or to any other person as clerk of the council, for the performance of the mere routine ministerial duties in connection therewith, such as the stamping, transmitting, and certifying as respects the ordinances and the resolution, and which there was no necessity of buying. As intelligent men ordinarily do not pay out money for that to which they are entitled as a matter of right, and which does not have to be paid for, but which comes to them as a matter of course, the only inference deducible from the evidence and all the circumstances is that no money was paid to or received by Taylor to influence his official conduct.
It might be noted that, although performance of the ministerial duties of entering a stamp of legislative approval upon ordinances or resolutions, or performing the other official duties with reference thereto, was necessary to facilitate the accomplishment of the results for which Taylor was employed, they were not essential to the legal*416ity of the adoption and approval of ordinances or resolutions of the legislative bodies of the City of Atlanta. In the absence of some mandatory provision of law it is not essential to the validity of a statutory enactment that the fact of its passage be officially certified to by any legislative officer. See 8 Cyc. 761; 1 Sutherland on “Statutory Construction’ (2d ed) § 56; and eases there cited. The duties of the clerk of the council of the City of Atlanta in this respect are not made mandatory by law.
Since, in order to obtain the general results, to' accomplish which Taylor was employed, there was no necessity to influence his official conduct as clerk of the council, it was not his services as the clerk of council that needed to be bought and paid for. In fact there is direct and positive testimony to the effect that Taylor’s employment as respects his services in obtaining a repeal of an ordinance with reference to the extension of the city limits, and obtaining the construction of a sidewalk, .had no reference to the fact that Taylor was clerk of the council. As respects the matters referred to in all three counts of the indictment, it was Taylor’s services as an able and influential political “go-getter” that were needed, and there is no evidence to authorize the inference that to obtain the desired results for which he was employed it was necessary to employ him as the clerk of the council, or to pay him anything to influence or affect his official conduct as clerk in stamping, transmitting and certifying as to the ordinances and resolution necessary to bring about the gen eral-results for which he was employed. The evidence is only to the effect that the performance of such official ministerial duties was necessary to facilitate the approval of the ordinances and the resolution and to bring about the desired results for which Taylor was employed. Nowhere in the evidence is the inference authorized that Taylor was employed because he was the clerk of the council. As his official services as clerk of the council were not needed, the fact that he was the clerk of the council was merely a coincidence, and was only incidental. Taylor was expressly employed to bring about general results, viz., the obtaining of the passage of ordinances and a resolution by the legislative bodies of the city, and thereby effecting a settlement of a monetary claim against the city, and the construction of a sidewalk, all of which could have been accomplished by him if he had not been clerk of the council. He could have complied with this *417contract, and. could by his efforts have obtained the desired results for which he was employed, had he resigned his office as clerk of the council after he had entered into the contract of employment, and before it became necessary for him to perform any official duty as clerk in connection with these transactions. It therefore seems conclusive that the employment of Taylor to procure the passage of the ordinances and the resolution, and to obtain the desired results did not necessarily involve the performance by him of any official duty as clerk of the council of the city.
There being no positive or direct testimony that the money was paid to Taylor or accepted by him to influence his official conduct, his conviction of bribery can be sustained only upon the theory that it is predicated upon circumstantial evidence. As provided in section 1010 of the Penal Code of 1910, “to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” Where the evidence in a criminal case, with all reasonable inferences therefrom, is as consistent Avith the defendant’s innocence as Avith the defendant’s guilt, it is insufficient to legally establish his guilt. In Williams v. State, 113 Ga. 721 (39 S. E. 487), the court held that: “the evidence against the accused was entirely circumstantial, and, AAdiile it raised a suspicion of his guilt, Avas not sufficient, though giAren its strongest intendment as against him, to exclude every other reasonable hypothesis. It AAras -therefore, error to refuse a neAV trial.” In Henderson v. State, 147 Ga. 134 (92 S. E. 871), the court held that “the proAred facts are consistent with innocence, and are insufficient to exclude every reasonable hypothesis save that of the guilt of the accused. Suspicion of guilt Avill not authorize a conviction.” This rule was Avell stated by the Supreme Court of Iowa, in Asbach v. Chicago, etc., 74 Iowa 248 (37 N W. 182), and was followed with approval by the Circuit Court of Appeals of the 8th circuit,, in an opinion rendered by Mr. Justice Van Devanter as circuit judge, in United States Fidelity & Guaranty Co. v. Des Moines National Bank, 145 Fed. 273: “A theory can not be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each' other, that it is the only conclusion that can fairly or reasonably be draAvn from them. It is not sufficient that they be consis*418tent, merely, with that theory, for that may be true, and yet they may have no tendency to prove the theory.” As stated by Justice Van Devanter in that case, “If the facts are consistent with either of two opposing theories, they prove neither.” It is also stated in Smith v. First National Bank, 99 Mass. 605 (97 Am. D. 59), that “when the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong.” In Vernon v. United States, 146 Fed. 121, it was held by the Circuit Court of Appeals of the 8th circuit, in following United States Fidelity & Guaranty Co. v. Des Moines National Bank, that “circumstantial evidence is insufficient to warrant a conviction in a criminal case unless it is such as to exclude every reasonable hypothesis but that of guilt of the offense charged, and can not be reconciled with the theory of innocence.”
-The evidence, with all .reasonable deductions therefrom, is as consistent with .Taylor’s .ihnocence as with his guilt of accepting money as a bribe to influence his official conduct. It can easily-be reconciled with the theory of Taylor’s innocence. The mere fact that Taylor’s official conduct as clerk of the council in stamping, transmitting, and certifying as respects the ordinances and the resolution, was necessary to facilitate the achieving of the general result for which he was employed, when considered in connection with the fact that there was no evidence to authorize an. inference that it was necessary to the accomplishment of the desired results that the performance of .Taylor’s official conduct as clerk should be bought and paid for, and that he could have carried out his express contract of- employment, which did not call for his exercise of any official duty without being the clerk of council and without performing any official duty as clerk of council, is perfectly consistent with the theory that Tajdor, in accepting the money under .the express agreement .and contract to accomplish the general results desired, was innocent of accepting the money as a bribe to influence his official conduct as clerk. The evidence therefore- does not “ exclude every other reasonable hypothesis save that of the guilt of the accused.”
As-respects thedwo counts, the .one with reference to the construction: of -the sidewalk, and the other with reference to the exclusion *419of territory, from inclusion in the proposed city limits; the, téstfi mony is positive and undisputed by other positive' testimony,-and is unimpeached, that Taylor was not employed for the -purpose" o£ influencing his conduct as respects his official duties as deTk in stamping ordinances and resolutions of the legislative bodies of the-city, etc. Applying the ruling in Frazier v. Georgia Railroad &c. Co., 108 Ga. 807 (33 S. E. 996), to the evidence as respects these' two counts, the circumstances which must necessarily, be relied upon before it can be inferred that Taylor in accepting the money was thereby influenced in his official conduct in stamping the ordinances and resolutions, etc., are insufficient to authorize this inference. The ruling in that case reads as follows: “When a plaintiff’s right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from-which the existence of such fact might'be-inferred; but which did not demand a finding to that effect, a recovery by, the plaintiff was not lawful, when by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, -it was affirmatively shown that no such fact existed.” See also Neill v. Hill, 32 Ga. App. 381 (2 a) (123 S. E. 30.).
While it is true that a transaction which constitutes bribery need not measure up to the requirements of a -contract in. that; as to the element of guilt, there must be a meeting of the minds of both parties, but that the recipient of money may be guilty of-,receiving it to influence his official conduct and thereby be guilty of bribery although no such' intent may have been in the mind of the giver, of the money, yet bribery nevertheless arises .out of a dual transaction and necessarily out of negotiations and agreements'or understandings between two parties. The determination, therefore, of the guilt of the recipient of the money must necessarily be made with reference to the entire transaction, including the conduct of the person giving it, and the rules with reference to the construction and interpretation of contracts are not inapplicable in determining the guilt or innocence of either party as respects the offense of bribery. . ' '
As it impresses me, the conclusion .that Taylor’s .official conduct in the purely ministerial duties of stamping the ordinances- and. the resolution, etc., was influenced by his acceptance of the money can *420be based only upon a mere conjecture — upon a mere possibility— or upon a mere figment of the imagination, and not upon any legitimate inference from the testimony which can be arrived at when due consideration is given to the motives and actions of men and the impulses which influence and direct human conduct.
Furthermore, the charge that Taylor accepted money as a bribe to obtain a settlement of a suit pending against the city is in my opinion barred by the statute of limitations. The solicitor-general, more than two years prior to the finding of the indictment, had knowledge of Taylor’s employment and activities in the matter. It is immaterial that the solicitor-general’s knowledge in this respect was based upon hearsay only, and that evidence of the alleged crime was not accessible to him.
The general verdict of guilty, which applies to all three counts of the indictment, being without evidence to support it and contrary to law as to one or more of these counts, the'verdict should, under the authority of Innes v. State, 19 Ga. App. 271 (91 S. E. 339), be set aside as to all the counts.
Whatever may be Taylor’s derelictions, and however guilty he may be proved in some other forum, in a court where only the voice of the law is heard he can not be gone against except by the “lawful judgment” of his peers and the “law. of the land.” Applying the law, as I understand it, to the evidence adduced upon the trial and as it appears here of record, the verdict finding Taylor guilty is not legally authorized as to any one of the counts.
It is not incumbent upon me to express any opinion upon the demurrer to the indictment or upon the various special grounds of the motion for a new trial.
I dissent from the judgment of affirmance.