I concur in the views expressed by Judge Norval in the opinion of the court and which are stated by Commissioner Ragan relative to certain of the questions presented for discussion and decision' in this action. The conclusions to which I agree are stated by Judge Norval:
“The office of mayor of a city of the metropolitan class is an office of profit and trust under the laws of this state.
“Unclaimed witness fees and costs remaining in the hands of the clerk of the district court are not public moneys; and the legislation of this state, in so far as it attempts to divest the persons for whose benefit such fees and costs are paid of title thereto, is unconstitutional and void.”
*793A proper interpretation of the terms of the section of the constitution invoked herein by the relator in connection with the law which prescribes the duties of a clerk of the district court in regard to fines and penalties leads me to conclude that while it may be possible that he has been made a collector, he is not a custodian. He cannot be charged as the latter under a fair reading and rendering of the law. The language of the section of the constitution is “collector and custodian.” (Constitution, art. 14, sec. 2.) Of this every word must remain as written by the constitution makers and adopted by the people and be allowed its ordinary accepted signification. To drop from the phrase the word “and” and insert in its place “or,” as has been suggested in argument should be done, would be to change and do violence to both the letter and the spirit or intent. If the respondent, as clerk, was not a custodian of the fines and penalties, it follows from the effect of this and the other conclusions to which I agree that the relation or information herein did not state a cause of action. The demurrer to the answer searches the record, and is fatal to the first defective pleading in order of filing, — the relation, — and the judgment must be against the relator. A dismissal of the action should be entered. This would dispose of the cause and rend er unnecessary a discussion of some other questions which were argued, and I prefer to express no opinion on such further questions.
Ragan, C., dissenting from the order of the court.The questions presented by this record must be answered by construction of section 2, article 14, of the constitution, which is as follows: “Any person who is in default as collector and custodian of public money or property shall not be eligible to any office of trust or profit under the constitution or laws of this state.” The questions involved are: (1) Is the office of mayor of the city of Omaha an “office of trust or profit,” within the meaning of this section of the constitution? (2) What *794is the meaning of the word “eligible,” found in said section? (3) Do witness fees remaining in the hands of a clerk of a district court unclaimed and uncalled for, for more than one year, become public funds? (4) What is the meaning of the term “in default” in said section of the constitution? (5) Is a clerk of a district court a “collector and custodian” of public funds within the meaning of said section of the constitution?
Is the office of mayor of the city of Omaha an office of trust or profit under the constitution or laws of the state of Nebraska within the meaning of said section? By the law under which the city of Omaha is created its mayor is made its chief executive officer. He is conservator of the peace, and invested with power to appoint and dismiss policemen, with the consent of the board of fire and police commission. He is invested with authority, and it is made his duty, to enforce the quarantine and health regulations of the city. By virtue of his office he is chairman and a member, of the board of fire and police commission. He is invested with the power to suppress riots and disturbances of the peace. He is invested with the executive power to remit fines and penalties imposed by the police judge for offenses against the ordinances of the city and the laws of the state. By the statute he is also invested with certain of the judicial powers of a justice of the peace; and generally it is made his duty to see to it that the laws of the state as well as the ordinances of the city of Omaha are obeyed and enforced within the limits of said city. The city of which he is mayor is one of the agencies of the state created for the purpose of carrying’ on and maintaining the state government; and while it is true that the city of which he is the chief officer is a municipal corporation, it is in no sense a private corporation. The word “office,” as used in this constitution, means a public political office, and the office of mayor of Omaha is such an office. It is a public office. It is of a political nature, and the purpose for which it exists is a public purpose,— *795a purpose in connection with the operation and administration of the state government. That it is an office of. dignity and trust and great responsibility is readily apparent from the nature of its functions; and if such an office must yield a pecuniary compensation to its occupant in order to make it an office of profit, then it is such an office, as the salary or compensation paid its occupant is $3,300 per year. We have no doubt but that the office of mayor of the city of Omaha is an office of trust or profit within the meaning of said section 2, article 14, of the constitution.
2. What is the meaning of the word “eligible” found in said section of the constitution? The rule is that in the construction of a statute or constitution the cardinal object is to ascertain and give effect to the intention of its framers; and, to enable the courts to ascertain the intention of the law makers, the words should be given their ordinary signification. Webster defines the word “eligible” as follows: “Proper to be chosen; qualified to be elected; legally qualified; as eligible to office.” The Standard Dictionary’s definition of the word is: “1. Capable of being chosen; qualified for selection or election. 2. Fit or worthy of choice or adoption; suitable.” The definition given of the word in Anderson’s Law Dictionary is: “Relates to capability of holding as well as of being elected to an office.”
The constitution of the state of California provided (art. 4, sec. 20): “No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this state.” One Grow was a postmaster in California, and while holding that office was elected sheriff of his county. After his election, and before his induction into the office of sheriff, he resigned as postmaster. His right to the office was contested on the ground that at the time he was elected he was ineligible under the provision of the statute just quoted. Baldwin, J., in Searcy v. Grow, 15 Cal., 118, speaking for the supreme court of California, *796said: “Counsel for the appellant contends that the true meaning of the constitution is that the person holding the federal office * * * is forbidden to take a civil state office while so holding the other; but that he is capable of receiving votes cast for him, so as to give him a right to take the state office upon or after resigning the federal office. But we think the plain meaning of the words quoted is the opposite of this construction. The language is not that the federal officer shall not hold a state office while he is such federal officer, but that he shall not, while in such federal office, be eligible to the state office. We understand the word “eligible” to mean capable of being chosen, — the subject of selection or choice. The people in this case were clothed with this power of choice. Their selection of the candidate gave him all the claim to the office which he has. His title to the office comes from their designation of him as sheriff. But they could not designate or choose a man not eligible, — i. e. not capable of being selected. They might select any man they choose, subject only to this exception: that the man they selected was capable of taking what they had the power to give. We do not see how the fact that he became capable of taking the office, after they had exhausted their power, can avail the appellant. If he was not eligible at the time the votes were cast for him, the election failed. We do not see how it can be argued that, by the act of the candidate, the votes which, when cast, were ineffectual because not given for a qualified candidate, became effectual to elect him to office.” This section of the California constitution was construed by the supreme court of that state as late as 1887 in People v. Leonard, 14 Pac. Rep., 853; and it was held that the constitutional provision should be construed to mean eligible to hold office as well as to be elected to office; and hence, where one was elected a state supervisor, and was eligible at the time, but after his election accepted and entered upon the office and duties of a federal appointment, that his *797acceptance of the latter office disqualified him from holding the state office.
The constitution of Indiana provided (section 176): “No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the state, other than a judicial office.” Wallace was mayor of the city of Indianapolis and some of the duties devolving upon him as such mayor were judicial in their nature. He was elected mayor for two years and within the two years resigned his office of mayor, was a candidate for and elected sheriff of his county, and the court held that under the constitution of the state of Indiana he was not eligible for election as sheriff. (See Waldo v. Wallace, 12 Ind., 569. To the same effect see Gulick v. New, 14 Ind., 93; Howard v. Shoemaker, 35 Ind., 111.) The constitution of 1851 of the state of Indiana provided (art. 6, sec. 2.): “No person shall be eligible to the office of clerk, recorder, or auditor more than eight years, in any period of twelve years.” One McPhetridge was elected circuit clerk in 1845 for a term of seven years. In October, 1852, he was re-elected for four years. At the October election in 1856 he was again elected for four years. His last term would expire in 1860. At the October election in 1859 Carson was voted for, for clerk, and claimed to be entitled to the office as the successor of McPhetridge. Carson’s contention was that under the constitution of 1851 McPhetridge could not hold the office of clerk longer than eight years from November 1, 1851, and that by reason of said constitution, became disqualified to hold the office of clerk after November, 1859. This contention the supreme court in a quo warranto proceeding sustained. In the opinion the court said: “The term ‘eligible,’ as used in our constitution, relates to capacity of holding, as well as capacity of being elected to, an office.” (See Carson v. McPhetridge, 15 Ind., 327. To the same effect see also Jeffries v. Rowe, 63 Ind., 592.) In Smith v. Moore, 90 Ind., 294, the consti*798tutional provision of that state that “No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the state, other than a judicial office,” was again construed; and the conclusion was reached by the majority of the court that the term “eligible” in the constitution meant legally qualified and that one holding a judicial office was eligible for election to an office nonjudicial, the term of which would begin after his judicial term expired. The force of this opinion, however, is entirely destroyed by the able and exhaustive dissenting opinion of Elliott, J. In State v. Bemenderfer, 96 Ind., 374, Smith v. Moore, supra, is virtually overruled. The cases cited'above from the 15th and 63d Indiana Reports are cited with approval and the court by unanimous opinion holds that the meaning of the word “eligible” in the constitution of Indiana means capable of being chosen.
The constitution of Nevada provides (art. 4, sec. 9): “No person holding any lucrative office under the government of the United States, or any other power, shall be eligible to any civil .office of profit under this state.” In November, 1866, one Clarke was elected attorney general of the state of Nevada and on January 7, 1867, entered upon the duties of that office. At the time of his election in 1866, he was United States district attorney for the state of Nevada. On October 25,1866, Clarke conditionally resigned the office of United States district attorney, the resignation to take effect on January 1, 1867. In a quo warranto proceeding to test the title of Clarke to the office of attorney general the supreme court of Nevada, in State v. Clarke, 3 Nev., 566, discussing the meaning of the word “eligible” in the Nevada constitution, said: “The relator contends that the plain and unmistakable meaning of the word is ‘capable of being elected or chosen.’ The defendant, on the other hand, contends that, as used in this section, it means not ‘capable of being chosen,’ but ‘capable of holding.’ * * * We *799agree with the defendant that the framers of the constitution intended to prohibit one who was holding a lucrative federal office from holding a state office at the same time. But instead of restricting the meaning of the word ‘eligible’ * * * we think, to carry out the intention of the constitutional convention, we ought rather to give it a more extended signification than is generally given, and hold that it means both ‘incapable of being legally chosen,’ and Incapable of legally holding’.” And the court held that Clarke was ineligible to election as attorney general.
A statute of Minnesota prescribed six months’ residence in the territory as a qualification for election to office; and in Territory v. Smith, 3 Minn., 164, the court held that a party to be eligible to election to office in the territory must have resided therein for six months prior to the date of the election; that it was not sufficient that he resided in the state six months prior to the time he took office. (To the same effect see State v. Williams, 99 Mo., 291.)
In State v. Murray, 28 Wis., 96, it was held that an alien who had not declared his intention to become a citizen of the United States might be elected to the office of clerk of the county board of supervisors in the state of Wisconsin; and in case he had declared his intention to become a citizen of the United States before the commencement of his term of office he was entitled to enter upon and to hold the office; but in this case the court said that the term “ineligible” meant disqualification to hold an - office as well as disqualification to be elected to an office. The opinion in the case, however, did not turn upon any constitutional or statutory provision of the state. In State v. Trumpf, 50 Wis., 103, the rule announced in State v. Murray, supra, was adhered to; but it was conceded that the rule was wrong.
A statute of Illinois provided (1 Starr & Curtis Ann. Stats., ch. 24, art. 3, par. 34): “No person shall be eligible to the office of alderman * * if he is in arrears in *800the payment of any tax or liability due the city.” Another statute relating to villages, and providing for the election of trustees therefor, provided that “Wherever the words ‘city council’ or ‘mayor’ occur in this act the same shall be held to apply to the trustees and president of such village, so far as the same may be applicable.” (Starr & Curtis Ann. Stats., ch. 24, art. 11, par. 192.) Hamilton and Grogan were elected trustees of the village of Ashland in the state of Illinois. Each one of them was in ai’rears at the time of his election in a small sum for taxes. In a quo warranto proceeding to test their right to the office as trustees the appellate court of Illinois in People v. Hamilton, 24 Ill. App., 609, held that they were not ineligible to the office of trustees of the village because their taxes were in arrears at the time they were elected; but the decision is not predicated npon the court’s definition of the word “eligible” in the Illinois statute, but its decision rested on the point that the statute which rendered one in arrears for taxes ineligible to the office of alderman had no reference to village trustees.
The constitution of Kansas provided (art. 5, sec. 2): “No person who has ever voluntarily borne arms against the government of the United. States * * * shall be qualified to hold office in this state, until such disability shall be removed by law.” One Privett had voluntarily borne arms against the government of the United States during the late Rebellion. At the general election held in Kansas in November, 1880, he was elected sheriff. After his election and before taking possession of the office his disability to hold office was removed. In a quo warranto proceeding to test his title to the office the court held that under the constitution of Kansas just quoted, though he was ineligible to the office at the time he was elected, he was qualified to hold the office when his term began, because at that time his disability had been removed, (gee Privett v. Bickford, 26 Kan., 52.)
These are not all the cases, by any means, in which the *801meaning of the words “eligible” and “ineligibility,” found in statutes and constitutions, have been considered. But we think the greater number of the adjudicated cases, as well as the decided weight of authority, sustain the proposition that the word “eligible” means both competent or capable of being elected to office, and competent or capable of holding office. And we are of opinion, that the word “eligible” found in section 2, article 14, of our constitution means that any person who is “in default” as a collector and custodian of public money or property is not during the existence of such default competent or capable either of being elected to or holding an office of trust or profit under the constitution or laws of this state. If any person is in default as a collector and custodian of public money or property, he is ineligible to election to any office of trust'or profit under the constitution or laws of this state. If any person is not in default as a collector and custodian of public money or property, at the time he is elected to an office of trust or profit under the constitution or laws of this state, but at the time of assuming the duties of such office becomes in default as a collector and custodian of public money or property, such default renders him incompetent to take the office to which he is elected; and if after he has assumed the duties of the office to which he is elected he becomes in default as a collector and custodian of public money or property such default renders him incapable, and disqualifies him from continuing, to hold such an office. Not one of the cases reviewed above is authority for the contention made here that the word “eligible” found in our constitution refers solely to legal qualification to hold office. Nor, after a somewhat protracted examination, have I been able to find any case where the word “eligible” was given such a construction when used in a law or constitution like ours. The framers of our constitution, bearing in mind the importance of the prompt and faithful collection and accounting for of the revenue of the state, designed by *802this provision of the constitution to encourage and stimulate collectors and custodians of public funds to perform their duties. It was never the intention of the framers of the constitution that a collector and custodian of the públic revenue of the state might negligently, carelessly, or criminally fail to account for the public revenue or property in his hands, take the chances of election to an office of trust or profit, and, if elected, then qualify himself to hold the office by complying with the law. To give the constitution this construction, I submit, is to refuse to follow the great weight of authority upon the subject and in effect to repeal the constitution itself. Section 7, article 6, of the constitution provides: “No person shall be eligible to the office of judge of the supreme court unless he shall be at least thirty years of age, and a citizen of the United States; nor unless he shall have resided in this state at least three years next preceding his election.” To construe the word “eligible” found in section 2, article 14, of the constitution as meaning legally qualified to hold an office, then it would necessarily follow that a man would be eligible to be elected judge of this court if twenty-nine years of age, provided at the time he was inducted into the office he had attained the age of thirty years. It would follow that if one had declared his intention to become a citizen of the United States he would be eligible to be elected judge of this court and qualified to hold that office if at the time of his induction into the same he had become a citizen of the United States. It would follow that one would be eligible to election as a judge of this court though he had not resided three years in this state at the time of his election, but it would be sufficient if at the time he was inducted into office that he had been a resident of the state for three years. And yet I think the obvious, plain, and ordinary meaning of said section 7, article 6, of the constitution is that no one is eligible to election of judge of this court unless at that time he be thirty years of age and a citizen of the United *803States and unless he shall have resided in this state at least three years next preceding the date of his election. (State v. Boyd, 31 Neb., 682.)
This constitution is not framed in technical or abstruse language. It speaks- the ordinary, every-day language of the people. It expresses the supreme will of the people, and, in construing it, that will should be ascertained and determined from giving to the words of the instrument their ordinary and usual meaning; and when this is done there is no room for the contention that the framers of section 2, article 14, of the constitution did not mean exactly what they said when they declared that no person who is in default as collector and custodian of public money or property shall be eligible, — that is, capable of being chosen, — to any office of trust or profit under the constitution or laws of this state.
3. Are witness fees in the hands of a clerk of a district court, which have been unclaimed and uncalled for by the owner thereof for more than one year from the time they were paid, to such clerk, public funds, within the meaning of said section of the constitution? Section 39, chapter 28, Compiled Statutes, provides that where witness fees shall be paid to a clerk of a district court, and shall not be called for by the parties entitled thereto for a period of six months after their payment to the clerk, he shall make a list under oath of the causes in which said fees have been paid and remain uncalled for, with the amount of such witness fees, and file the same with the board of county commissioners of his county; and that, within twenty days after the report is filed with them, the commissioners shall cause a notice to be published'directed “to whom it may concern,” reciting the fact of the presence of such witness fees in the hands of the clerk of the district court, and if they shall not be called for by the parties entitled to them within six months from the date the clerk reported them to the commissioners, such fees shall be forfeited and *804paid to the common school fund of the county. Section 40 of said chapter provides that all witness fees remaining in the hands of a clerk of the district court for six months after the date of his making his report thereof to the board of county commissioners shall be by said clerk paid over to the county treasurer. I think these sections, 39 and 40, are unconstitutional and void. By this legislative act, the property of the citizen is attempted to be taken for public use for no crime or debt of the citizen, and not as a punishment for any crime; and it is taken without any compensation being rendered the citizen therefor, and in this respect it violates section 21, article 1, of the bill of rights. By this act the legislature has also attempted to deprive the citizen of his property without due process of law and in this respect it violates section 3, article 1, of the bill of rights. Unclaimed witness fees in the hands of a clerk of a distinct court are property which belongs to the witnesses or to some litigant who has advanced the fees and recovered a judgment for them as costs against some other litigant; and the legislature is not depriving the citizen of his property by due process of law by simply providing that such citizen shall forfeit his property lawfully in the hands of a public official unless it be called for by a certain date. The legislation under consideration does not even provide that the owner of property shall have personal notice of the intention of the state to deprive him of his property. A clerk of a district court holds such witness fees in trust for the owners thereof, and, at the expiration of his term of office, he should pay such fees over to his successor in office. But such fees are not public funds, within the meaning of section 2, article 14, of the constitution.' They are in ail respects private property, and, while the clerk of a district court or his successor in office is the legal custodian of such fees until called for, he holds them in trust for the owners. On this branch of the case I reach the conclusion that a clerk of a district court who has neglected *805and failed to pay to the county treasurer witness fees in his hands which have been there unclaimed for a year or more is not by reason of such neglect in default as a collector and custodian of public funds.
4. What is the meaning of “in default” in said section 2, article 14, of the constitution? Section 5, article 8, of the constitution provides: “All fines, penalties, and license moneys arising under the general laws of the state, shall belong and be paid over to the counties, respectively, where the same may be levied or imposed, and all fines, penalties, and license moneys arising under the rules, by-laws, or ordinance of cities, villages, towns, precincts, • or other municipal subdivision less than a county, shall belong and be paid over to the same respectively. All such fines, penalties, and license moneys shall be appropriated exclusively to the use and support of common schools in the respective subdivisions where the same may accrue.” Section 534 of the Criminal Code of the state provides: “Every magistrate or clerk of court upon receiving any money on account of forfeited recognizances, fines, or costs, accruing or due to the county or state, shall pay the same to the treasurer of the proper county, except as may be otherwise expressly provided, within ten days from the time of receiving the same.” In the case at bar, while the respondent was clerk of the district court of Douglas county, there were paid to him certain fines and penalties which by the provision of the statute just quoted became and were public funds and belonged to the common school fund of the state. These public funds the statute just mentioned required the respondent to pay to the county treasurer of Douglas county within ten days after their receipt. It stands admitted in the record that the respondent did not pay certain of these fines and penalties to the county treasurer of Douglas county within ten days after their receipt, nor during his term of office as clerk; that he had not paid the same to the said county treasurer at the time he was elected mayor *806of the city of Omaha, but that he had paid to said treasurer said fines and penalties at the time he was inducted into the office of mayor. Was the respondent, at the time he was elected mayor of the city of Omaha, in default within the meaning of said section 2, article 14, of the constitution, if within the meaning of said constitution he was, while clerk of the district court, a collector and custodian of public funds?
To make default is to fail to keep a promise or perform an obligation at the time it is due. Such a failure may result from inability to perform the duty or to keep the promise made, or it may result from negligence or carelessness, or it may be the result of a criminal intent. But, if the failure to perform the duty or to keep the promise made is the result of either of these reasons, the party is still in default; and a collector and custodian of public money or property is “in default” within the meaning of this section of the constitution if he collects such money or property and retains it or fails to pay it over or deliver it to the party to whom the law declares it shall be paid or delivered and within the time fixed by statute for its payment or delivery.
In this connection I shall notice the excuses interposed by the respondent in his answer for his neglect or failure to pay over the fines and penalties in his hands to the county treasurer of Douglas county within ten days after their receipt. The respondent says that it was his purpose and dona fide intention at all times during his term to pay all the fines by him collected over to the proper officer within a reasonable time after the same were collected. This excuse is not good. It was not for the respondent, while clerk of the district court, to determine for himself what was a reasonable time in which to pay over to the county treasurer the fines and penalties collected. The statute does not prescribe that a clerk of a district court, to whom are paid fines and penalties, may pay them to the county treasurer of his county within a reasonable time, but within ten days after their receipt.
*807Another excuse of the respondent is that $364 of the fines and penalties which came into his hands were collected, if at ail, by deputy of the respondent; that respondent did not know that the same had been received by the deputy until long after it was received, and after the deputy had left respondent’s employment. This is not an allegation that the $364 never came into respondent’s hands. It is not an allegation that he did not know that his deputy had received this $364 prior to the time respondent was a candidate for mayor. It is not an allegation which alleges that respondent did not know before his term of office expired that his deputy had received for him $364.
Another excuse is that $200 of the fines and penalties retained by the respondent were paid to his deputy during the time respondent was ill, — in the month of April, 1895, — and that respondent’s attention was not called to the fact that said sum of money had been paid into his office during the remainder of his term of office. This excuse is likewise invalid. It was the duty of the respondent while clerk of the district court to keep a book or books in which all fines and penalties paid into his office should be entered, the time of their receipt by him, and the day of their payment to the county treasurer. But in this last excuse offered by the respondent he admits that the payment of the $200 to his deputy during respondent’s illness was shown on page 226 in one of the dockets kept in his office. It was the duty of the respondent to see this docket.
A final excuse offered by the respondent for retaining the fines and penalties in his hands Is that he held them in his hands in pursuance of a stipulation to that effect entered into between the attorney for Douglas county, attorney for the school board of the city of Omaha, and the attorney for the city treasurer of Omaha, as some dispute had arisen as to what particular board or tribunal or school district or municipality was entitled to these fines and penalties. This excuse will not do. The *808statute was the finger-board which pointed to the county treasurer’s office and in mandatory terms commanded the clerk of the district court to pay the fines and penalties in his hands to the county treasurer of Douglas county; and if any person or corporation claimed the right to those funds, that claim should be made to the county treasurer. The force and effect of a mandatory statute cannot be suspended by stipulation of parties.
I must not be understood from anything said here as imputing to the respondent any criminal intent. Indeed I think it is apparent from respondent’s answer that he has at all times acted in good faith; that he has been guilty of no moral delinquency,- — no evil intention; that he has at all times been able and ready and willing to account for and pay over the public funds in his hands. On the other hand duty compels me to say that I think this respondent has been guilty of negligence. Like all other men in all vocations of life, he has been careless. But the constitution does not, nor does it attempt to, make any distinction as to one’s ineligibility to an office whether it arises from neglect, carelessness, or criminal intent. What the constitution says and what it means is that one who is in default as a collector and custodian of public money or property shall not be eligible to any office of trust or profit under the constitution or laws of this state; and, while I think the respondent was not guilty of any intentional wrong or fraud or crime, I have not the slightest doubt but that by reason of his carelessness and negligence he was at the time he was a candidate for the office of mayor “in default” within the meaning of section 2, article 14, of the constitution, if he was at that time a collector and custodian of public money or property.
The constitutional convention left it to the legislative department of the government to prescribe such civil or criminal penalties as it might see fit against one in default as a collector and custodian of public funds, but itself made the being in default by such a collector and *809custodian as to sucli fund a political offense, and affixed as a penalty for the same ineligibility to election and disqualification for holding an office of trust or profit while such default existed; and the cause or the intention which gave rise to such political offense is in such an inquiry as this wholly immaterial. If the party is in default as a collector and custodian of public funds then by the constitution he is guilty neither of any criminal nor civil offense, but is guilty of the political offense described in the constitution; and no excuse whatever can be heard in extenuation of that offense. If the public funds or property in such collector and custodian’s possession had been stolen from him, or if it had been lost as the result of some circumstance wholly beyond his control, then, to prevent his being in default, he must make it good to the public treasury. This provision of the constitution under consideration is analogous to the statute which prescribes a penalty of $50 against any officer for taking fees in excess of those prescribed by statute for performing a duty of his office. And in Cobbey v. Burks, 11 Neb., 157, the court held that the mistake or ignorance of such an officer, where he had not been guilty of any evil intent, afforded him no defense to the action to recover such a penalty. This is doubtless the correct construction of the act. I have not been able to find any case where such an act was differently construed. A different construction of such a law as this would effectually destroy it, and it is upon the grounds of public policy that such acts are construed by the courts as in Cobbey v. Burks, supra.
I am aware that in People v. Hamilton, 24 Ill. App., 609, already referred to, it was said in effect that one was not in default because of his failure to make a payment required by law when there had been an honest intent on his part to pay, but this language of the court was obiter. It had nothing whatever to do with the point on which the decision in that case turned. We are also aware that the supreme court of Louisiana in State v. *810Reid, 12 So. Rep. [La.], 189, said that “default,” when used in connection with “disqualification for office,” meant default with dishonor. I concede that this expression is good poetry everywhere, and good law when applied to the facts of the case in which it was used, but it has no applicability whatever to this case. The Louisiana court was not defining, nor attempting to define, the meaning of the term “in default,” or any kindred term. In that case the constitution of Louisiana made one who had been a collector of taxes ineligible to office until he had obtained a discharge for the amount of collections made by him. Such a collector having been elected to an office, and quo warranto proceeding brought to test his title to the office, it was contended by the relator that the respondent had not collected the tax lists placed in his hands, and for that reason he was indebted to the state, and it was in this connection that the court said, in the constitutional disqualification to hold office is the idea not only of debt but of default with dishonor; not only that the collector owes but that he owes money collected and in his hands; not only that he is a debtor but a defaulter.
5. A final inquiry is, is a clerk of a district court a collector and custodian of public funds or property within the meaning of said section 2, article 14, of the constitution? I do not think he is. It is true that the respondent, while clerk of the district court, was a custodian of the fines and penalties received by him from the time he received them. For their loss he doubtless would have been liable upon his official bond. Had he embezzled them or converted them to his own use perhaps he would have been criminally liable. But the language of the constitution is not a “collector or custodian,” but “collector and custodian.” Unfortunately, we have not access to the debates of the constitutional convention and I do not know for what particular reason the framers of the constitution made the clause read “collector and custodian.” It was said by counsel for the relator in his *811oral argument in this case in this court that the constitution should be read as though it was written “collector or custodian.” The courts are not at liberty to thus change the context and make the disqualification of eligibility to office apply to any other person than the one the framers of the constitution made it apply. A collector, within the meaning of this constitution, is a public officer charged by law with the duty of exacting and receiving payments of money or property due the state or public. To make one a collector within the meaning of this constitution it must not only be his duty to collect or receive money or property due the state or public, but it must be his legal duty. He must be armed by law with authority to demand and enforce payment. Now, while the respondent was clerk of the district court, was by virtue of his office authorized to receive fines and penalties which might be paid to him as clerk, yet no statute of this state made it his duty to demand such fines and penalties from the party owing them, or to enforce, by any process whatever, the payment of such fines or penalties. He was not invested with authority to seize the property of the citizen who owed a fine or a penalty and sell it for the purpose of realizing such fine or penalty.
The demurrer should be carried back to the relation, sustained, and the proceeding dismissed. -
Irvine, C.In the interpretation of the written law the meaning and intent of the lawgiver must be gathered from the language used. It must be presumed that the framers of the constitution were fairly familiar with the mother tongue, and that in an instrument of that solemnity they selected their words and forms of expression with some care for the purpose of expressing their intent. We are not at liberty to 'substitute for the meaning of the language so by them deliberately chosen the meaning which in our minds should have been expressed in order to *812carry out the policy we attribute to them. Such liberality of construction in effect substitutes for what has been declared the law that which the courts think should have been so declared. We must therefore weigh the language used, imputing to the framers of the constitution deliberation and intelligence of diction, and give to each word some force if practicable. These remarks are expressive of axiomatic rules of construction, which, however, are apt to be overlooked in the attempt to carry out what is loosely styled the spirit of the written lav/,— an operation frequently accompanied by such a disregard of the English language that laymen, comparing tbe statute with its exposition, come to regard the process of construction as equivalent to destruction. If we are to pay any attention to the letter of the law we must conclude that a clerk of the district court is not a “collector and custodian” of public money as to fines and penalties received by him. We have no more right to read the word “and” as if it were “or” than we have to reverse the process and in the following phrase substitute the conjunctive for the disjunctive between “money” and “property,” or to read the word “public” as if it were written “private,” or to interpolate a negative, or in any other manner do violence to the constitution and effect a judicial amendment. It is the duty of the clerk to receive fines and penalties and within ten days pay them over to the treasurer. I am not prepared to say that because he is not charged with the duty and power of exacting and enforcing payment he may not properly be styled a “collector,” but if the meaning of that word be so extensive as to include an officer merely empowered to receive and pay pver, then to give any effect to the word “custodian” we must hold that it signifies ode who is charged with a more permanent and responsible keeping and care of money than devolves on 'any agent for collection. And yet the latter is plainly the measure of the clerk’s power and responsibility. The fact that ten days is allowed the clerk to pay the money to its *813custodian, the treasurer, is of no significance. This is only a period fixed by law arbitrarily, for tbe sake of certainty, as one reasonably to be allowed for making tbe transfer, and it does not change tbe character of his possession. Tbe statute attempting to transfer to tbe public tbe right of tbe owners of tbe other funds which tbe respondent is charged with retaining is very plainly violative of tbe constitution, for tbe reasons given by Judge Norval and Commissioner Ragan. It follows that, in my opinion, tbe demurrer should be overruled, because tbe relation states no cause of action; and, as it is not in tbe nature of the case amendable, tbe cause should be dismissed. Entertaining tbis opinion, I feel that some of tbe other questions discussed are not necessarily involved in tbe decision, and prefer to express no opinion thereon.