dissenting.
In 1891 one C. W. Mosher was receiving from the state forty cents per day for the board, clothing, care and attention of each convict in the penitentiary. ITe .was also entitled to their labor and the convicts were hired out to various persons at the rate of about forty cents per day for each convict. In 1891 an appropriation was made for building a new cell house by days’ work, $40,000. This, like all other appropriations, was for “ so much thereof as may be necessary.” That is, a sum total of $40,000 was appropriated with the condition that only so much thereof as was necessary should be drawn. This is a condition of all appropriations in this state. ' The warden seems to have protested against the employment of persons outside of the penitentiary to construct the building on the ground that it had a demoralizing effect on the convicts. The result was that the respondents agreed that the building in the main was to be constructed by convict labor. W. H. Dorgan was Mosher’s superintendent at the penitentiary, and had full authority to hire the convicts to any person who desired to employ them. Daniel Hopkins was the warden of the penitentiary from May 5, 1891, to about March 1, 1892. He recommended Dorgan to the respondents as a suitable person on behalf of the state to superintend the construction of the cell house. Dorgan testified as to his relations to Mosher as follows :
“Well, I looked after all the business connected with it —that is, all his interests at the prison. That would include all kinds of supplies, subletting the men, and looking after his business in general.”
The order making the appointment is as follows:
“The construction of the cell house for the penitentiary as provided for in the general appropriation bill, wherein $40,000 has been appropriated for that purpose by the twenty-second legislature, to be done by days’ labor, being *130under consideration, Hill moved that ~W. H. Dorgan be employed by the board as superintendent of construction with power to purchase material for construction, and employ laborers for building subject to approval of the board. Seconded by Allen. Motion carried.
“Allen moved that Dorgan be required to furnish bond for the faithful performance of duty in the sum of $10,000. Seconded by Hill. Carried.
“On motion of Allen the salary of Dorgan as superindent was fixed at $50 per month, to begin from this day.”
Mr. Dorgan gave bond with approved sureties in the sum of $10,000. He was not a builder, and possessed no practical knowledge of building or building-material.
The new cell house is the east wing of the penitentiary and is substantially similar in all respects to the west wing of the main building. The new wing is 220 feet in length by forty-five feet in width, and about thirty-eight feet in height. Being directly east of the main building no wall was necessary at the west end, and there was a wall about twenty-two feet in height on the north and also on the east of the new wing which it was intended to use as the north and east wall and raise the same to the desired height. So that at that time the only walls supposed to be necessary were the south wall, and in addition to raise the east and north walls to the height of the other walls, and put a roof on the building with ceiling preparatory to receiving the cells. This, however, will be discussed later. The board seem to have given Dorgan no directions in regard to the building but left him to do as he pleased. Soon after his appointment Dorgan entered into a contract with S. H. Atwood & Co. for stone for the building, the price being thirty-five cents per cubic foot for dimension stone plugged to size. This was defined by the witnesses as stone split from layers of the proper thickness by drilling holes in the rock and driving wedges therein. Another quality of rock *131he paid Atwood & Co. sixteen cents per hundred pounds, and still another eight cents per hundred pounds. The rock to be delivered at Cedar Creek or at other points not more distant from Lincoln, the freight to be paid by the state. Dorgan, according to his statement, made no inquiry of others as to the price of stone. A large part of the stone was in fact purchased by Atwood & Co. of J. W. Zook, of Nemaha county, and delivered on board of the cars at Johnson, in that county, at from three cents per hundred pounds for rubble to ten cents per cubic foot for dimension stone plugged to size. Zook testifies' that Dorgan wrote to him about the price of stone some time before he sold to Atwood & Co.; that he had lost the letter. He says:
A. He asked the price of stone delivered at Lancaster.
Q. And what did you tell him ?
A. I told him I sold stone delivered on board the cars at the switch at ten cents a foot and if I delivered it on board the cars at Lancaster the freight would be added and that is what the letter contained.
Q. Do you remember about what time that was? Was it before or after the time you sold the stone to Atwood ?
A. As near as I can remember that was about a week before Atwood came down there.
He also testifies:
A. I have been in the stone business about ten years.
Q. What has been the uniform market value of this dimension stone free on board the cars at that point ?
A. Ten cents a foot and I sold some dimension stone for even less money than that. If I get ten cents I consider I was getting a fair price.
He testifies, in effect, that he wrote to Dorgan to that effect before Atwood & Co. purchased the stone from him and that he enclosed the letter in an envelope, duly stamped, and containing his business card asking for a return of the letter if not called for and that it was never returned. Dorgan, while attempting to deny that he received the let*132ter, does not deny absolutely that he did receive it. On cross-examination he testifies:
Q. My memory is that I asked you if you had received any letters from J. W. Zook, of Nemaha county, relative to stone from that point?
A. No, I don’t think that I did.
Q. You don’t think that you received any letters?
A. No.
Q. You were subpoenaed to bring them, but you don’t . think you received any ?
A. I have no such letters in my possession, and I don’t , think I ever had.
This is far short of an unequivocal denial. Atwood & Co. also purchased a quantity of stone from Yan Court and Keys, in Nemaha county, for the penitentiary at a slight advance over the price paid Zook. But suppose Dorgan’s denial is unequivocal, still the probabilities are that Zook sent the letter to Dorgan as he testifies. Dorgan was anxious to justify his purchases of stone and to shield the respondents. He pleads ignorance of the price of stone as a j ustification for paying more than twice as much as it could have been purchased for. His ignorance on that point has the appearance of being assumed; and to admit that he had received the letter would, in effect, be a confession that he did know the price. ' On the other hand, Zook is a . disinterested witness, of fair appearance. He was anxious to find a market for his rock. He testifies fully and unequivocally that he sent a letter, duly stamped, to D >rgan, at Lancaster where Dorgan received his mail, offering to furnish stone at ten cents per cubic foot for dimension plugged to size, and three cents per hundred pounds for rubble, all free on board the cars at Johnson, Nemaha county; that this letter had his return card on it and that it never was returned. That this testimony is true there is not a shadow of a doubt and it with other things shows how utterly unreliable is Dorgan’s testimony.
*133The purchases of stone from Atwood & Co. are as follows :
AUBURN STONE.
453.64 ft, at 35c per ft................................ $158 77
3,145.92 ft. at 35c per ft.............................. 1101 07
, 2,208.27 ft. at 35c per ft......'........................ 772 90
316,500 lbs. dim., 3,165 ft. at 16c per ft........... 506 40
$2,539 14
CEDAR CREEK STONE.
2 cars, no weight or quality.......................... $50 00
958,900 lbs. rubble at 6c.............................. 575 34-
120.400 lbs. footing at 8c..................... 96 32
111.400 lbs. crushed at $1.10........................ 45 38
85,700lbs. coping at 16c........................... 137 12
68,500 lbs. dim. at 10c......1....................... 68 50
124,000lbs. rubble at 8c............................. 99 20
187,100 lbs. rubble at 8c.............................. 149 68
76,000lbs. dim. at 10c.............................. 76 00
29f ft. at 74c........................................... 7 00
197,200 lbs. rubble at 8c.............................. 157 76
67,200 lbs. rubble at 8c............................. 53 76
598,700lbs. rubble at 8e............................. 478 96
318.400 lbs. rubble at 8e...................... 254 72
$2,249 74
JOHNSON STONE.
281,700lbs. dim., 2,817 ft. at 16c per ft.......... $450 72
311,800 lbs. dim., 3,118 ft. at 16c per ft.......... 598 88
90,050 lbs. dim., 990J ft. at 16c per ft........... 158 48
34,000lbs. dim., 340 ft. at 16c per ft............ 54 40
649,100 lbs. dim., 6,491 ft. at 16c per ft......... 1,038 56
$2,201 04
$6,939 92
*134Price of stone paid by Hopkins to Atwood & Co.:
Rough ashler, 1,332 ft. at 16c per ft............... $213 12
Dimension, 4,640|- ft. at 35c per ft................ 1,624 28
$1,837 40
Total paid to. Atwood for stone........... $8,827 32
'' The amount so paid to Atwood & Cot was about twice as great as the same quality and kind of stone could have been purchased in the open market and the state thereby lost while Dorgan was superintendent more than $3,000, and as Hopkins continued to receive stone under the Dorgan contract the loss to the state exceeded $4,000.
On the 1st day of June, 1891, Mr. Dorgan made what he calls an estimate for $6,100, as follows:
“ Estimate No. —.
“ For work doné and material furnished during the month of May, 1891, for cell house at penitentiary:
Cut stone.......................i...........................$1,000
Concrete...'......................................i.........i. 750
Excavating...........................i..l............. ' 350
Material on hand' not used.....i...................'..... 4,000
Balance due contractor................................... 100
“The above estimate was made by me this 1st day of June, 1891, and I hereby certify that the amount of work done and materials furnished by said contractor are true and correctly stated and set forth in the above estimate, and that the said estimate is made in the manner and according to the plan’s and specifications mentioned in the contract with the said state and said contractor.
“W. H. Dorgan, Superintendent.
“Signed in my presence and sworn to before me this — day of--, A. D. 18 — .
- “Approved by the board of public lands and buildings.
a__ __
“Secretary. President.
*135“General Fund.
“The State op Nebraska,
“To W. H. Dorgan, Dr.
“For material used in building new cell house, per estimate No. 1 hereto attached....................$6,100
“Examined and approved June 1, 1891, by the board of public lands and buildings, and account to be charged to appropriation for penitentiary, new cell house.
“John C. Allen, A. R. Humphrey,
“Secretary. President.”
This was approved and warrant drawn for the amount. He also at the same time submitted the following account:
“Lincoln, Neb., June 1, 1891.
“Mr. W. H. Dorgan, Supt.,
“ In account with Prison Contract.
To 357 days at $1 .................................... $357 00
26 days, team at $3 .............................. 78 00
lumber for stone shed............................. 100 00
carpenter work.................................... 18 00
6 wheelbarrows at $1.50 ........................ 9 00
nails and mason line.............................. 9 95
J dozen squares.................................... 3 00
^ dozen shovels..................;................. 6 00
2 cars stone..................;...................... 50 00
excavating........................................ 350 00
switching and unloading 14 cars ............... 56 00
$1,036 95
“Received payment, Prison Contract.”
A similar estimate for June, 1891, for $8,000, was made on the 3d day of July, 1891, and similar account filed, which were approved and warrant drawn. The third estimate and account were filed October 5, 1891, for $8,000, and were approved and a warrant issued thereon. The fourth estimate and account for $5,000 were filed and approved December 7, 1891, and warrant drawn. . The fifth *136estimate and account were filed March 7, 1892, and a warrant issued. It will be seen that he had thus drawn from the treasury upon these various estimates the sum of $32,-100, without, so far as appears, a single voucher from the persons who had furnished the labor or material, or their assignees.
Section 19, article 5, of the constitution, provides: “The commissioner of public lands and buildings, the secretary of state, treasurer, and attorney general shall form a board, which shall have general supervision and control of all the buiídings, grounds, and lands of the state, the state prison, asylums, and all other institutions thereof, except those for educational purposes; and shall perform such duties and be subject to such rules and regulations as may be prescribed by law.”
Section 4, chapter 83, article 7, Compiled Statutes, provides : “ The said board shall have power, under the restrictions of this act, to direct the general management of all the said institutions and be responsible for the proper disbursement of the funds appropriated for their maintenance, and shall have reviewing power over the acts of the officers of such institutions, and shall, on the part of the state, at regular meetings as hereinafter directed, audit all accounts of such officers, including the accounts of the commissioner of public lands and buildings, except his salary.”
“Sec. 5. At the regular meeting of the board it shall be their duty to examine the accounts of the public 'officers contemplated in this act and to determine whether the same are entitled to be paid out of the moneys appropriated-for the purpose of maintaining the institutions for which they are charged, and if correct, shall approve the same, which approval shall be signed by the president and countersigned by the secretary under the date of such action; and if the accounts be incorrect, exorbitant, or not entitled to payment from such appropriations, the same shall be dis-. approved and returned to the claimant, such board keeping a record of the same.
*137“Sec. 6. When the accounts above mentioned have been filed with the.board, and shall have been audited and approved by them, the auditor of public accounts is hereby authorized and directed, upon the presentation to him of such accounts so authenticated, to issue his warrant on the treasurer against the proper fund or appropriation, for the amount therein stated, to the claimant or his assignee. And no accounts coming under the' provisions of this act shall be entitled to payment until they have been go approved by the said board.”
Section 6, chapter 83, article 3 provides: ■ “All persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the auditor, to be audited, settled, and allowed within two years after such claims shall accrue; and in all suits brought in behalf of the state, no. debt or claim shall be allowed against the state as a set-off, but such as has been exhibited to the auditor, and by him allowed or disallowed, except only in cases where it shall be proved to the satisfaction of the court that the defendant, at the time of trial, is in possession of vouchers which he could not produce to the auditor, or that he was prevented from exhibiting the claim to the auditor, by absence from the state, sickness, or unavoidable accident; Provided, The auditor shall in no case audit a claim or set-off which is not provided by law.”
Section 8 requires all warrants, vouchers, etc., to be preserved in the office of the auditor.
Section 2, article 8, of the same chapter requires the auditor to keep an account of all claims presented to him for an examination, and adjustment, and provides for appeals by any party aggrieved. All claims against the state are to be presented to him and must have his approval before a warrant can be issued. This means the primary claims — those of persons who furnish the goods, labor, etc. It is true in expenditures contracted by the board of public lands and buildings they must approve — that is, certify all *138vouchers for such expenditures before the auditor can be required, to act upon them. This is a precaution to prevent frauds by requiring the board that contracted the debt to certify that the claim is correct. It does not change the character of the voucher, however, as that is to be for the original claim. (State v. Moore, 36 Neb., 579.)
In the case at bar the respondents, on mere estimates and without vouchers, allowed Dorgan to draw money at his pleasure. The board itself could not draw money from the treasury except upon proper vouchers and it had no authority to authorize Dorgan to do so. Should the mode adopted in this case become the rule, every precaution for the protection of taxpayers would be broken down, the constitution and statutes set at naught, and money unlawfully and in defiance of law taken from the treasury.
The testimony of Hopkins shows that at the time he was appointed superintendent, on March 16,1892, Dorgan had built the south wall and one-third of the east wall, and that was substantially all that was done. Hopkins testifies on cross-examination:
. Q,. How far had the cell house progressed at the time you took charge as superintendent?
A. The north wall of the cell .house was completed and part of the east.
Q,. Do you mean the north or south wall?
A. I should say the south wall of the cell house.
Q,. And a part of the east wall?
A. And a part of the east wall; yes, sir.
Q,. The north wall had not yet been torn down?
A. No, sir; we hadn’t commenced on that. I should have said the south wall.
Q,. Was the south wall clear up?
A, Yes, sir.
Q. How far was the east wall?
A. Why it was perhaps one-third.
*139He also testifies that “the grates were put in the south wall and the door was hung also — the large door.”
This testimony does not seem to be denied. The experts called to place values upon the several walls of the building, and the whole as it now stands, differ greatly. The five called from Lincoln all place the values of the several parts, including material, very much lower than the experts called from Omaha. Thus, Mr. Bullock, a builder of Lincoln, placed the value of the south wall at $6,472, while Mr. Coots, a builder of Omaha, estimates the value complete in round numbers at $10,472.35. He also estimates the east wall complete at $2,797.95. It is difficult to reconcile the various estimates of the experts, as it would seem there should not be so much difference in estimated values. Perhaps in arriving at an approximate value it would be well to take the average of the estimates, which would be $8,437.18 for the south wall complete.' Coots estimates the value of the east wall complete at $2,797.95, one-third of which would be $910.99. Therefore, all the work performed under Dorgan’s superintendence, had it been performed by free labor, would have been worth $9,348.07, but having been almost wholly performed by convict labor the actual cost could not, even at $1 per day for convicts, have exceeded $8,000. It also appears that there were plans and details prepared for which it is claimed $350 were paid. There was some stone on hand, the amount thereof does not clearly appear. It could not have been very large, however, because Hopkins, after lie became superintendent, purchased stone of Atwood & Co., as heretofore stated, to the amount of $1,837.35. At the time Dorgan ceased to be superintendent all the stone that was supposed to be necessary was sufficient to complete the east wall and to raise the north wall to the same height as the south wall. But suppose we estimate the stone on hand at $2,000 and the value of the south wall at $10,000, and the aggregate of the work, had it been performed by citizen labor, would be *140$13,260. which would include everything, and for this Dorgan had received $32,100, and as there were no funds in-the treasury the amounts were drawing interest at seven per cent. But the work on the south and east walls was almost wholly performed by convict labor. The testimony shows that convicts would perform from one-half to two-thirds as much labor as was performed by citizens. So that the actual cost of the wall, including superintendence,1 must have been very much less than the above estimate.
In March or April, 1892, after Hopkins was appointed superintendent, he removed the cap-stones from the top of the north wall, when it was discovered that there were no binders in the wall and that the mortar possessed no adhesiveness — was worthless, and that it would be unsafe to build on it. The respondents were thereupon consulted and found it necessary to consent to the tearing down of the wall and rebuilding the same, and this was done under HopkiVs direction. Dorgan had nothing to do with this or putting on the roof, and all evidence as to the cost and value of the north wall, roof, etc., are not in issue in this' case, nor of the building as it now stands, as there is no charge against Hopkins. Dorgan returned to Hopkins the sum of $6,331.15. Dorgan has received and has retained $25,768.85. The state was charged $1 per day for the convicts, although other contractors paid but forty cents. It was alleged that the state had the choice, and that the men selected for the state were experienced stone masons, and therefore more, valuable than the average convict. This is shown to be true of eight or ten of those' employed, but not generally.
M. D. Welch, president of the Western Manufacturing Company, testified that he employed ordinarily about one-half of the convicts.
Q,. You have practically carte blanche as to selection of the men?
A. Yes, I have.
*141Q. You have your pick of the men in the penitentiary?
A. Well, that is to say, I don’t take cripples or diseased men if I can help it, nor short time men.
Q. You take long time men — good, strong, healthy fellows?
A. Yes, in my business I want to pick a man that when he gets familiar with the work he will be worth something. It takes some time to learn them.
He also testifies that he pays forty cents per day for each convict employed, and furnishes them tobacco, candles, chewing gum, etc., in addition. The wages paid by him appear to be the ordinary wages, and the proof fails to show that on any contract that continued for a considerable time were greater wages paid.
There are charges that more days’ work were charged to the state than were rendered. That some such were charged there is no doubt, but the extent of such charges cannot be determined, although the amount paid was considerable; There would seem to be no reason why the state should be charged for labor not performed or a greater rate than forty cents per day, and with a capable, intelligent, disinterested superintendent of the work and proper effort of the respondents, fictitious services would not have been charged, and no more would have been paid for the convicts who worked for the state.
The appointment of Dorgan, whose interests were altogether with Mosher, is entirely unjustifiable. If the board was busy, as it claims to have been, there was all the more necessity for the appointment of a capable, disinterested superintendent who could be relied upon to look after the business and interest of the state. No ordinarily prudent man would have appointed Dorgan to fill the position of superintendent nor placed in his hands tens of thousands of dollars; and it is not surprising that the state has suffered serious loss. It seems that Hastings was absent when Dorgan was appointed; that he had selected a disinterested *142person named Davey and had promised him the position. But after his return he visited the penitentiary and claims to have found everything satisfactory and right, and concluded to retain Dorgan. No man can serve two masters, and this case has proved no exception to the rule.
That there were frauds in the flour contract there is no doubt, but the extent of such frauds it is difficult to determine. Thus, in January and February, 1892, the flour was weighed, it is claimed, and the only record preserved was the stubs of the weigh checks, and they are lost. There is also proof that the drayman was in the habit of leaving a number of sacks of flour at a designated place on the' way to the asylum.
The charges under these heads are fully sustained.
2. It appears that while Dorgan was possessed of the money in question, he, at the request of the respondents, paid to Hopkins $200 to enable him and Elder Howe to visit the prison congress at Pittsburgh, Pennsylvania. Soon afterwards the board received from him $500 of the money belonging to the state to pay the expenses of a visit to various points to enable them to choose the best cells. This was charged to the cell house fund. These appropriations are justified upon the ground that the state would be benefited thereby, and that therefore it was a proper expenditure.
Section 22, article 3, of the constitution, provides: “No allowance shall be made for the incidental expenses of any state officer, except the same be made by general appropriation and upon an account specifying each item. No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law and on the presentation of a warrant issued by the auditor thereon, and no money shall be diverted from any appropriation made for any purpose or taken from any fund whatever, either by joint or separate resolution. The auditor shall, within sixty days after the adjournment of each session of *143the legislature, prepare and publish a full statement of all-moneys expended at such session, specifying the amount of each item, and to whom and for what paid.” This provision declares that “ No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law and on the presentation of a warrant issued by the auditor thereon.” The legislature makes appropriations. It is for it, composed as it is of the representatives of the people, to say what is for the interest of the state and requires the expenditure of money. Unless it grants the authority there is none. If an officer, or a number of them, can take $1 without an appropriation and be justified in doing so, he or they may take all that there is in the treasury if in their view the state will be benefited thereby. Money taken without an appropriation is taken not only without law but in defiance of it, and if the principle is once established, would lead to gross frauds and peculations. Suppose trustees having the care of property, and were receiving the rents and profits, should desire to visit distant points to enable them to administer the estate with wisdom and, prudence and thereby benefit it, could they charge this expense upon the owner or beneficiaries without their consent lawfully expressed? No more can they do so in this instance. The state, through its legislature, must give its assent to an expenditure, otherwise the party must pay it out of his own pocket. No voucher was filed with any officer showing the amount expended, nor any attempt to comply with the law. In addition, this cell house is not ready for the cells even now; therefore, there was no emergency. But under no view of the case can the expenditure be justified, and the fact that in one or two previous instances such expenditures were made, which do not seem to have been known, but tend to show the lax methods that seem to have prevailed with the board wherever the expenditure of money was concerned. It also appears that the legislature made an appropriation of *144$1,000 for the traveling expenses of the board. It is true Mr. Allen testifies that $500 of this sum had been expended. He also testifies that all the members had passes, so their railroad fare was nothing. So far as he stated the visits to the various institutions by the board, the expenditures should not have exceeded $100, and probably did not. If the board desired to travel on official business it would seem that this was the fund for that purpose. It appears also that Dorgan used $234 to reset the boilers in the prison, a charge which properly belonged to Mosher, and should have been paid by him.
In addition to the ordinary provisions in appropriation bills, that of 1891 contained the following:
“See. 3. Each state officer and each board entitled to draw against the appropriation provided for in this act shall keep an itemized account of all expenditures made by them and report the same with vouchers to the finance committee of the next legislature, and no officer of institutions and no state officer shall incur any indebtedness beyond the amount appropriated in this bill except to prevent disaster.”
The testimony shows that the respondents made no attempt to comply with these provisions. The charges are fully sustained.
3. The testimony tends to show that gross frauds were committed in the delivery of coal at the Lincoln insane asylum. The respondents claim to have been ignorant of these frauds until about September, 1892. It appears that from the 1st day of October, 1890, to the 26th day of March, 1891, the Whitebreast Coal & Lime Company ' furnished coal for the asylum and was allowed therefor the sum of $11,551.95. To cover this claim an appropriation of $12,000, or so much thereof as might be necessary, was made, and the claim was certified to the auditor by the respondents. The coal was alleged to have been delivered on the cars at asylum switch, but the number and initials *145of the ears on which it was alleged the coal was delivered are not given in a single instance. -
■ Dr. Knapp testifies, in effect, that he did not believe the amount of coal charged had been delivered. His^;bookkeeper testified to substantially the same facts. Neither of them, however, communicated their suspicion to the respondents. Knapp afterwards approved the'vouchers’ánd they were approved by the respondents and the warrant: issued. The fact that an appropriation had-been máde’'to pay for this coal was not aii adjudication of the claim, as the legislature cannot adjudicate claims: (State v. Babcock, 22 Neb., 38.) The very largo amount of coal charged— sufficient to have supplied all the asylums in the state for the timecharged — certainly should have put the respondents upon inquiry. The reports for coal from the other public institutions were before them, and unless fraudulent vouchers were sent in from them also, of which theréis no claim, a Comparison should have shown the fraud. ■■ No examination was made, however. A specimen is seen in a voucher for July, 1891, as’follows: . ,
“ General Fund.
“ State of Nebraska, Hospital for the Insane,
“To Whitebreast Coal & Lime Co., Dr.
July 4, 32,000 pea, at $1.72................. $27 52
6, 40,000 pea, at $1.72....................... 34 40
7, 2,050 Canon, at $6.90............... 7 07
8, 112,000 pea, at $1.72....... 96 32
10, 82,000 lump, at $2.59.................... 106 19
10, 41,000 pea, at $1.72...................... 35 26.
11,. 40,000 lump, at $2.59......;............. 5180.
14, 41,000 lump, at $2.59.................... 53 09
■14, 40,000 pea, at $1.72...................... 34 40
15, 2,720 Canon, at $6.90.................. 9 .38
16, 40,000 pea, at $1.72...... 34 40
20, 86,000 lump, at $2.59................... 111 37.
22, 2,680 Canon, at $6.90.................. 9 24
*146July 23, 42,000 lump, at $2.59.................... $54 39
24, 112,000 pea, at $1.72..................... 96 32
' 25, 70,000 pea, at $1.72.................. 60 20'
28, 104,000 pea, at $1.72...................... 89 44
$910 79
“I hereby certify that the above account is for supplies actually furnished the above named institution.
“ (Sign here.) Whitebreast Coal & Lime Co.
“ Jno. T. Dorgan.
“ Examined and adjusted.
U_
“Auditor Public Accounts.
“ Per--, Deputy.
“Approved:
u__
y
“Secretary of State.
“ Per--, Deputy.
“ Received of T. H. Benton, auditor of public accounts, warrant No.-
“(Sign here also.) Whitebreast Coal & Lime Co.
“Jno. T. Dorgan.
“ Duplicate.
“Hospital for the Insane,
“ Lincoln, 7-31, 1891.
“I certify that the within account is just and correct and that it is a proper and necessary expense and has not been * paid. W. M. Knapp, Superintendent.
“Examined and approved August 3, 1891, by the board of public lands and buildings, and account to be charged to appropriation for fuel and lights.
“J. C. Allen, --,
“Secretary. President.”
Indorsed: “ Nebraska Hospital for the Insane, Lincoln, Nebraska. Voucher No. -. $910.79. Warrant is-
sued on account of fuel and lights to Whitebreast Coal <fc
Lime Co. T. H. Benton,
“Auditor of Public Accounts.”
*147Betts, Weaver & Co. seem to have adopted the White- . breast style of vouchers in November, 1891. The voucher for December, 1891, is as follows:
“ General Fund.
“State op Nebraska, Hospital por the Insane,
“To Betts, Weaver & Co., Dr.
To 434,500 tons pea, $1.70........................... $738 22
313,120 tons lump, $2.70........................ 846 .72
14,780 tons Canon, $6............................ 86 33
$1,671 28
“Approved Jan. 4, 1892.”
Other vouchers in that form were approved.
Contracts for coal were let every three months and the Whitebreast Coal & Lime Company and Betts, Weaver & Co. seem to have monopolized the business. ' From October 1, 1890, to December 31, 1891, and the month of February, 1892, the amount of coal alleged to have been delivered to the asylum at Lincoln was 17,551,907 pounds, and the amount actually received, so far as the evidence shows, was 7,589,600 pounds, leaving a shortage of 9,962,-307 pounds, which cost $12,855.47. The proof fails to show that the respondents in any manner profited by these frauds.
The respondents introduced evidence tending to show that last October they submitted the whole matter to the grand jury of Lancaster county, and thereby sought to bring the guilty parties to justice. It is but fair, however, to state that Governor Boyd requested them to lay the matter before the grand jury, and it is evident that the matter had acquired such publicity it could not be avoided. On this trial they in effect deny the frauds, or that, if such existed, they had any notice thereof in any form and therefore are not chargeable therewith. They seem also ,to exhibit no very friendly sentiments towards the witnesses . by whom these frauds were proved, and certainly show no disposition to aid in procuring proof of the same.
*148... Some reliance is placied on the approval of the asylum officers by the governor in his message of January, 1891 ^ This, no doubt, is entitled to considerable weight, but it could, not in any manner excuse the respondents from the exercise of reasonable care in the examination of the asy-> lum vouchers. In addition to this,- the land commissioner in December, 1890,.in his report to the governor,-which' is. in' evidence, says. (p. .86): “ Under the existing system of furnishing. supplies the appropriation funds are too-, frequently used in keeping with that conception of charity which declares that it ‘ hideth a multitude of sins.’ Items for luxuries, privileges, and conveniences that‘are alone enjoyed by the officials and their friends are -too ■ Often cloaked in a claim for ‘ board and clothing, fuel and lights/ 5t súme one of the other necessary funds appropriated for maintenance of the institution.”
1 It is contended by the respondents ■ that the business in their respective offices has so increased that it is impossible to give attention to many of the details of business that come before them and therefore they are excusable. If is true there is a large amount of business in each of the offices named. This is a large and growing state and bush bless in all departments is constantly increasing. In the office of the land commissioner, however, there are ten cilerks and one deputy, which with the principal make twelve persons. In the office of the secretary of state, one deputy and two clerks, four persons in all. In the attorney general’s office, one deputy and stenographer. If these officers need additional assistance, if they will present their claim to the legislature, through the' governor, no doubt the desired increase would be granted. These facts must ' be known to the respondents, and as no such application was made it must be because it was not considered neces'sary. The business of the state, however, must be con- ' ducted in a reasonably prudent and careful manner, otherwise the result would be chaos. Suppose a merchant or *149business man should urge the want of time to look after his business and therefore neglected it, the- result would not? be uncertain. No defense of this kind can be entertained;'
4. Are these acts ground for impeachment? Section^;1 article 5, of the constitution provides: “All civil- officérs of this state shall be liable to impeachment for any misdemeanor in office.” It maybe well to in’qu ire first what' áre the duties of public officers? Each one, before enter-1 ing upon his duties, is required to take an oath that he will “-faithfully and impartially perform the duties of his officé according to law, and to' the best of his ability.” An officer is bound to exercise ordinary care; such care as an ordinarily prudént man would exercise in the management'óf his own affairs. The respondents are, to quite an extent;1 trustees. They let-' contracts and certify claims each year' to the amount of nearly $1,000,000. Now shall this work’ b¿ performed faithfully to the best of the ability of each as1 he has sworn to do, or shall it be neglected and no examination made? •’ ;,0
' There is considerable conflict in the authorities as to* what constitutes an impeachable offense.' Under the com-1 iuonTaw, the grounds of impeachment are “high crimes! ánd misdemeanors.” In a number-of cases under this la# it has been held that the cause of- accusation ■ must be A crime punishable under' the criminal law. In England; impeachment has been to some extent considered as a mode5 of trial to punish crime; although a judgment of guilty -was ho bar to an indictment and conviction for the same offense! In”this country, while some of the cases hold that to con-1 stitute an impeachable offense it must be such as cOiild bfe punished under the criminal law', yet in the majority of cases it is-held that this requirement is unnecessary, and we are constrained to adopt the latter view. Judge Lawrence, in 6 Am'.' Law Reg., 649, in discussing the meaning of the Word, says: “ The word ' misdemeanor’ hasa commdn law, a parliamentary, and a popular sensé. * In' a parlia*150mentary sense, as applied to officers, it means maladministration or misconduct, not necessarily indictable.” “ Demeanor is conduct” and misdemeanor is misconduct in the business of his office. It must be in matters of importance and be of a character to show a willful disregard of duty.
Now do the acts above recited constitute misconduct in office? We are not without authorities in this state on that point. Thus in Minkler v. State, 14 Neb., 181, a county surveyor, who acted on the honest belief that he had a right to remove section corners erected by the government to conform to the field notes, was found guilty of maladministration of his office and was removed. In State v. Oleson, 15 Neb., 247, the relator was removed from the office of sheriff for official misdemeanors and the judgment was affirmed. It is true the principal question in this court was the jurisdiction of the county commissioners to try the cause, but the character of the offense was also to some extent involved. In State v. Meeker, 19 Neb., 444, the respondent was removed from office by the county board of Saline county for certain alleged violations of the law, and while an appeal was pending this court compelled him to deliver over the books of the office to the' person appointed in his.stea.d In these cases there was no hesitancy on the part of this court to hold that these judgments of removal were valid. Among the grounds men-> tioned in the statute for removal from office are habitual or willful neglect of duty. (Comp. Stats., ch. 18, art. 2, sec.. 1.) An examination of the constitutional provisions of a number of the western states will show that misdemeanor is cause for impeachment. Thus:
Section 1, article 7, of the Wisconsin constitution provides for impeaching “all civil officers of this state for cor-, rupt conduct in office, or for crimes and misdemeanors.”
Section 7,’article 6, of the constitution of Indiana declares that “All state officers shall for crime, incapacity, or negligence be liable'to be removed from office either byim*151peáchment, * * * or by a joint resolution of the general assembly.”
Section 30 of the constitution of Illinois provides that “The general assembly may for cause entered on the journals, upon due notice and opportunity for defense, remove any judge upon concurrence of three-fourths of all the members of each house. All other officers in this article mentioned shall be removed from office on prosecution and final conviction for misdemeanor in office.”'
Section 197 of the constitution of North Dakota provides for impeachment for “misconduct, malfeasance, crime, or misdemeanor in office, or for habitual drunkenness, or gross ineompetency.” Section 4, article 16, of the constitution of South Dakota is the same.
Section 28, article 2, of the constitution of Kansas pro-. vides for impeachment for any misdemeanor in office.
Section 20, article 3, of the constitution of Iowa provides “for impeachment for any misdemeanor or malfeasance in office.”
The constitution of Colorado specifies “high crimes or misdemeanors or malfeasance in office.” (Sec. 474.)
.Other states provide for substantially the same causes.
The provision in the constitution of this state is broader than that of any of the states named except Kansas. Under our constitution any gross misconduct in office is cause for impeachment. It would be a violation of the oath of office and of the officer’s duty. In that respect our constitution is much broader than the common law term “high crimes and misdemeanors.” But even at common law the offense need not necessarily be a crime-punishable by the criminal law. Alexander Hamilton, in No. 65 of the Federalist, says: “ The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with, peculiar propriety be denominated political,.as they relate *152chiefly to injuries done immediately to the society itself.” Hamilton’s views are generally adopted in this country. .
In the early part of the present century impeachment was ,the ordinary mode of removing objectionable officers: Thus, in Massachusetts and some other states, county officers and even justices of the peace were impeached. In many, if not all, of the states at the present time the Statutes provide for a simple, direct proceeding in an action in the courts in the nature of impeachment against certain officers who are guilty of misconduct in office; and.impeachment is but one of the remedies for that purpose, and in this state, as applied to a state officer, is the sole remedy. The -.causes, however, which would cause the removal of. a county officer on the ground of misconduct in office would seem'to be sufficient against a state officer. ,
The claim that there was no. willful disregard.of law in the. penitentiary cell house- is clearly shown to be unfounded. The respondents’ duty to .the state was, in the first instance, to appoint a capable, efficient superintendent who would: protect the rights of the state; second, see that the state received as fair treatment as other eontractors. in the employment of convicts, and purchase of. materials, and to exercise a general supervision over the work; ánd third, to permit no money to be drawn.except on. original vouchers of the persons primarily entitled to the money or their assignees. In all these respects there wras a failure to discharge their duty. Their claim that they knew nothing against- Horgaii -is entitled to no weight whatever. . They did know that he represented the party who .could and probably would profit by. his being superintendent. Indeed the argument that they were able to hire him cheaper than' a disinterested party is an. admission of his unfitness, its it shows that he was drawing full pay for his services (from Mosher at the same time. In addition to these facts, each allowance of an estimate-Without-va .voucher was a violation .of! a duty by the respondents by which they; wrongs-*153fully and willfully permitted Dorgan to draw money from the treasury.
Some attempt was made to prove usage as a defense to some or all of these charges. But the authorities are uniform that usage cannot be proved to contradict the expressed terms of a contract or where it would result in violating some positive requirement of statute. (Rogers; Expert Test., 271-272, and cases cited.) It is very clear that proof of usage cannot be considered, otherwise we might be asked to sanction the practice at asylum switch.
Considerable stress is laid upon the good faith of the respondents in committing these acts.. This question was before this court iii Cobbey v. Burks, 11 Neb., 161-162, in an action for taking illegal fees. It is said: “ The penalty •imposed by this act may be incurred by exacting fees which are'supposed at the time to'be legally demandable., .By the very words of the prohibitory clahse the taking is’the gist of the-offense. Ignorance of the law will: not excuse in any case; and this principle is applicable, and with irresistir ■ble force> to the case of an officer selected for his capacity and in whom ignorance is unpardonable. The very ac-r ceptance of the office candes with it an assertion of a sufficient share of intelligence to enable the party to follow, a guide provided for him with an unusual áttention, clearness) and precision. On any other principle a conviction would seldom take place even in cases of the most .flagrant abuse; for pretexts would never be wanting.” . It may-be said that the people having elected these men, their- will should be respected and they should not be ousted for the offenses charged. In every vote I have given in this court I have favored carrying out, as far as possible, the will of the people as expressed through the ballot-box; but the.sameconstitution which provides for the election of officers and for a discharge of the duties of the officers also provides for declaring the-office'Vacant in case of serious, willful miscoriduct; in-other words, where the officer fails to faith*154fully perform the trust committed to his hands. The doctrine has been applied in equity from time immemorial. Thus, if a trustee misbehaves in any way to the detriment of the estate he may be removed. (Ex parte Reynolds, 5 Ves., 707.) So if he refuse or neglect to execute the trust it is cause for removal. (In re Mechanics Bank, 2 Barb. [N. Y.], 446; De Peyster v. Clendining, 8 Paige [N. Y.], 295; Perry, Trusts, sec. 419, and cases cited.) This rule has been applied by this court against inferior-officers in a number of instances. Thus, in Brock v. Hopkins, 5 Neb., 231, it was held that a clerk of the district court was liable for damages occasioned by his negligently and carelessly taking insufficient security. While if he exercised a reasonable degree of care in the performance of his duty he was not liable. In Fox v. Meacham, 6 Neb., 531, it was held that where a justice of the peace violates the law and abuses his authority to the injury and damage of another he and 1ns sureties are liable on his bond for such damages. I know of no reason why the same rule which would hold a county officer liable for damages, or guilty of an offense for which he might be removed should not be applied to the state officers. The charge in both cases is substantially the same, viz., misconduct in office. If a county officer is guilty no one will urge as a reason for condoning the offense that the accused was elected to the office and that the people would be deprived of his services by his removal; and I know of no good reason why the same rule should not be applied where the officer is elected by the entire state.
It is said the respondents acted judicially in approving accounts, and therefore are not liable for their acts. The able attorneys for the respondents made no claim of this kind, and, therefore, it is evident that they did not rely upon it. If in approving accounts they act judicially, in order to protect them there are three things which must concur: Eirst, the claim must be one they are authorized to audit; second, it must be presented in the form of a bill *155or voucher showing the debt and what it is for, otherwise the board would be like a judge passing upon a matter not before him — such as a matter not put in issue; and third, the statute makes it their duty to investigate every claim. The protection accorded to a judge against a private action does not apply when he is on trial under specific charges of impeachment. Even a judge of this court could not plead protection against such charges. In such case his conduct and general manner of conducting his business may be inquired into, and if he is found guilty of misconduct on any of the charges he may be declared guilty. But no judicial officer is protected when he exceeds his authority, and these respondents very clearly, in all they are charged with, acted either without authority of law or in excess of such authority. But in my view their duties are not judicial. In the proper sense they do not allow accounts. They merely investigate, or should investigate, the vouchers and the several items thereof to see that they conform to the contract. In other words, the duty of the. board is to let contracts in a specified manner, and when vouchers are presented under such contracts which, upon examination, arc found to be correct, they are to certify the same to the auditor. The certificate is not a final order from which an appeal would lie, and is not a judicial act. It will not be seriously contended that an officer who negligently .and improperly certifies a fraudulent account which it was his duty to investigate, or who unlawfully draws money from the treasury, is protected from the consequences of his acts, and, so far as I am aware, no case so holds.
The rule announced in this case, it seems to me, would have protected Tweed from prosecution. Yet we know that he was tried and convicted for obtaining money from the city of New York upon fictitious claims allowed against the city by the proper authorities, and suit was also brought in behalf of the people to recover the money so obtained. In People v. Tweed, 63 N. Y., 194, the petition alleged *156that Tweed Was pi'esiderit-of .the board of supervisors of the county of New York and * *’ * “procured various fictitious claims to be made up, purporting to be liabilities,, amounting in the aggregate to $6,198,957.85, specified in a schedule annexed, which were presented and by the procurement of said conspirators were certified to by the three auditors named,” etc., and it was held that the action cójlld.-be maintained. ■
í Proof was introduced on behalf of the respondents to show that Porgan, Knapp, and others had given bonds to the state..' It is evident' that none of these bonds will covet* the Actual loss to the state, and even if enforced’ would be an- inadequate remedy. But the giving of a bond by an officer-does -not exempt him from the performance of his duty, nor relieve- those: who superintend his acts from a faithful supervision of the same. The law imposes the duty of supervision, with “a- reasonable: degree of care.”* Rhcsduty .of an officer is stated by Judgfe ¡Lake in Brock p^BItyipkins'ySiipra, that he exercise a reasonable degree of care,!n the performance of his duty. It seénis to me the1 respondents wholly failed in the performance of their duties in!the'cases-specified in these charges, whereby the state during; the ten, months that Porgan was superintendent lost a1 -laitge. sum of -money, probably not less than $15,000; and:¡$234 for resetting the boilers which-was-not a debt of the Atate, together with , the sums drawn by Hopkins and Ho.we to:go to Pittsburgh, and the respondents-to go to St. Eo.uis, in all $934. The overpayments fot- coal, all in sixteen-.months, exceed $12,000. An ordinarily prudent manwpuld 'have-required thé vouchers to be in proper form, giving the numbers and weights of the several cars; There qrc telephones in all of the public buildings so that it would have taken but a moment to make the proper inquiries in regard to. the coal and protect the, interest of the-state, but so.far .as the-proof shows such inquiries were riot ruadeim ;a single -iristance. A public officer, like any othef *157servant, should be faithful to his employer to see that in all matters under his control the master shall noj; be dey frauded; in other words, he shall be faithful to hie trust, not as an eye servant, but in the sight of God." Ifliat is, in effect, the oath that each officer takes to faithfully perform his duty. Q.ur public institutions should be conducted on business principles and without fear, favor, or favoritism, and no money should be drawn from the treasury except irl strict pursuance of law. If the!court should approve or even condone the conduct of the respondents in these cases, the influence of the decision will be felt in every department of business in the state as tending to weaken the ¡sense of faithfulness of public officers’ and employes^ and in every way prove detrimental to the best interests of society. There are an abundance of men in the state who can, and if, the opportunity is given by their seleqtipn to the offices filled by the respondents will, faithfully!,look after the interests of the state; and as the respondents'have failed in that regard, the charges are well taken and should be sustained. I therefore vote guilty as charged. I fear the result of the! decision, if adhered to¿ will, be-to open a door to the grossest frauds in the public institutions óf the state.
A number of the wit'nessesfor the state testified as if‘under constraint, and there seemed to be ^powerful influences'affecting some of thern-aside from the immediate friends:of the respondents at work in their favor. The respondents, of course, are not .responsible for these influences, but it ia my duty to mention them. ,.