dissenting.
I cannot agree to the opinion of the majority in this case. I do not think the mere fact that defendant entered *27the illegal, fees upon his docket is of itself a violation of the statute or creates a cause of action. He may have thought he was entitled to them and so entered them upon his docket, yet that fact alone does not render him liable. His ignorance is no excuse, but it does not of itself create a liability. In order to create a liability for the penalty, or liquidated damages, the officer must take the excessive fees. Defendant did not do this. It is not enough that he “demand” the fee, although defendant did not do even that. It was discovered that a number of men had violated the law. A multitude of arrests followed. For reasons which were deemed proper and right, it was agreed that pleas of guilty should be entered and a light fine imposed, together with taxation of costs in each case. The amount of costs- could not be then ascertained and taxed. It was agreed that a certain amount of money should be left with the defendant, and, if it should be found not to be sufficient, the deficiency should be made up by the arrested parties. Should the amount be found to be too much, the excess or overpayment should be- refunded to them. This was a lawful agreement. It was simply a case of mutual trust and confidence. The amount agreed to be left with defendant was $175. By all rules of law, justice or common understanding it was simply a deposit with him to secure or make certain their payment, and subject to future computation or investigation. He held the deposit, and a short time later requested the attorney who appeared for defendants in the criminal prosecutions to assist in the investigation of the question of the fees in order that the correct amount might be ascertained, but the attorney declined to do so. He then called upon some of the parties themselves to join in the inquiry, but they refused. Nothing was left for him to do but to await their will and pleasure, holding the deposit subject to what might be found to be due. It may be said that there was no agreement that they should assist in the investigation and computation; but the very fact that the agreement was made that the matter should be held open im*28plied their friendly assistance. The case strikes me as one of exceedingly bad faith on the part of the members of the so-called “Commercial Club,” and, as expressed by one of them, an effort to “cinch” defendant by reason of-his reliance upon their personal honor and integrity, which, as it turned out, proved to be absent. I cannot but look upon the action of the parties and this suit as an unfair, unjust and dishonest proceeding in order to •obtain revenge against an officer who, so far as this record shows, sought to discharge his duty and at the same time accommodate the arrested parties so far as he might by a reliance upon their personal honor.
I agree that the fee statutes should be strictly construed as against the officers of the law, and that it is right to enforce its penalties when deserved, but I am far from believing that the law is a trap into which officers may be thus inveigled simply because they rely upon the word of those with whom they are called to deal.
I believe the judgment of the district court should be reversed.