dissenting.
In my view of this case, the majority in their opinion have departed from three fundamental principles which seem to-me to be essential to the welfare of society: (1) In a proceeding to remove a police officer for Avilful failure to enforce the law, he should not be alloAved to retain his office by shoAving that he obeyed the lawless directions of his superior officers, though in doing so he permitted open and notorious lawlessness and Adolated the solemn enactments of the legislature and the instructions of the governor whose duty it is as chief executive to s'-e that the laAvs are faithfully executed. (2) The word “wilfully,” in a statute providing for the removal of a police officer “who shall Avilfully fail, neglect or refuse to enforce any law which it is made his duty to enforce,” has a meaning different from the definition of that Avord as used in the criminal laAv to describe a felonious act, and does not mean that the conduct of the officer, to justify his removal, “must be prompted by some evil intent, or legal malice, or at least be without sufficient grounds to belitwe that he is performing his duty.” (3) A statute establishing a neAV method of removing a public-officer for Avilful failure to enforce the law is remedial legislation and should be liberally construed with a view to suppressing the mischief which made the legislation necessary* and a construction which would weaken the effect of the statute should be avoided.
1. For the purpose of enforcing obedience to law in every part of the state, of extending to the people gen*331erally the protection of the governor as chief executive and of making effective that provision of the constitution declaring that “the supreme executive power shall he vested in the governor, who shall take care that the laws be faithfully executed/7 the legislature recently passed an act containing these words: “Any county attorney or prosecuting officer, sheriff, police judge, mayor, police officer, or police commissioner or other officer who shall wilfully fail, neglect or refuse to enforce any law which it is made his duty to enforce shall thereby forfeit his office and may be removed therefrom.77 Comp. St. 1911, ch. 71, sec. la.
Other provisions of the act authorize the governor to direct the attorney general to institute proceedings to remove any police officer who wilfully fails, neglects or refuses to enforce any law which it is made his duty to enforce. Under power thus granted, the governor directed the attorney general to bring this suit against respondent as chief of police to remove him from office for neglecting to enforce the laws in the city of Omaha. A statute of this state makes it the duty of a chief of police to “arrest and detain any person found violating any law of this state, or any legal ordinance of any city or incorporated village, until a legal warrant can be obtained.77 Criminal code, sec. 283. Under the charter of the city of Omaha, additional power is conferred upou the chief of police in the following lanuage:
“He shall have, in the discharge of his proper duties, like powers, and be subject to like responsibilities, as sheriffs in similar cases.
“Each policeman shall give a bond conditioned as provided in this act, and shall have the same powers as constables in arresting all offenders against the laws of the state, and may arrest all offenders against the ordinances of the city with or -without a warrant. In discharge of their duties as policemen they shall be subject to the immediate orders of the chief of police.77 Comp. St. 1911, ch. 12a, secs. 70, 71.
*332Referring to the laws forbidding gambling, prostitution and illegal sales of intoxicating liquors, the majority find: “The evidence abundantly shows that in all these respects the law has been openly, notoriously and continuously violated in the city of Omaha. According to this evidence there is and has been for more than 30 years continuously a large district embracing several blocks upon some of the principal streets in that city notoriously known as the ‘red-light district/ in which prostitution and the illegal sale of intoxicating liquors, and in many cases gambling and other vices, have been and are so openly and brazenly practiced that all citizens of Omaha, and all citizens of the state, whose attention may have been called to the matter must be aware of existing conditions.”
The conditions thus described have not only been known to respondent, but reports showing the facts are on file in the department of which he is the chief. The machinery and power of the police department of a great city are in his hands. His official connection with the police department extends over many years. It would be an affront to his intelligence to intimate that he is ignorant of the lawlessness proved. That he intentionally refused to enforce the law, knowing the lawless conditions described, is fully established by the evidence. I do not concur in the opinion of the majority that he is not answerable in this action because, in permitting open violation of the law, he is carrying out the policy of the police commissioners and the mayor who appointed him. He is the officer of the city. In the city’s connection with the state, he is the state’s officer. His obligation, like that of other officers, is to uphold the constitution and Jaws. Orderly society is entitled to his protection within his jurisdiction. He is not the employee of his superior officers. His power comes from the state and his compem sation from the city, and not from his superiors who give protection to crime and vice. As an officer he owes a duty to the public. Only proper and lawful instructions from the mayor and police commissioners are entitled to *333liis official respect. He has no function except to enforce the law. There was no other purpose in the creation of his office. Every order from his superiors to sanction or permit outlawry is the wrong of those individual persons who for the time being hold the offices. The adoption of a policy to neglect the enforcement of the law is an offense of lawless individuals, and not the authorized act of officers. In criminal procedure it is no defense to a complaint charging a felony that accused committed the crime a.t the direction of a public officer or of an individual holding a public office. In a civil suit against an officer for dereliction of duty, why should a policy of lawlessness adopted by his superiors be a defense? Neither private citizens nor police officers should find protection in orders to disregard the law. Citizens and officers alike should disobey instructions to ignore valid statutes or ordinances. A police officer, when called to the bar of justice for failing to perform his duties, should not be permitted to make out his defense by showing that he acted under instructions from his superiors to disregard open and notorious lawlessness. The contrary doctrine sanctions a defense established by proof of wrong, neglect of official duty and violation of law. The chief of police has a higher duty than his obligation to the persons who happen to occupy the offices of mayor and police commissioners. The demands of the state and the welfare of society have stronger claims upon his loyalty. His duty to those who should direct his course aright is within the law, and he has no authority to follow them into open lawlessness, where the dividing line is not in doubt.
Like all other officers and individuals, respondent should respect the provisions of the constitution. That instrument declares that the governor of the state “shall take care that the laws be faithfully executed.” Const, art. Y, see. 6. This duty extends to every part of the state. When the governor lawfully directs respondent to enforce a particular statute, his orders should not be annulled by a lawless policy adopted by persons tempo*334rarily acting as mayor and police commissioners. The governor called to the- attention of respondent specific instances of violations of the law, with a view to the enforcement of its provisions. Respondent’s answer was that he would take the matter up with the mayor and the board and act upon their instructions. As a result the. unlawful conditions described in the opinion of the majority were allowed to continue in spite of the law, in spite of official oaths to enforce it, and in spite of the demands of the chief executive, whose duty it is “to take care that the laws be faithfully executed.” Is the law-enforcement demanded by the governor less binding on a chief of police -than the lawless acts of individuals who assume as officers to adopt a policy which sanctions lawlessness and protects lawbreakers ? A chief of pool ice may resign any time or he may be removed for any cause specified by statute. The record shows that respondent, after having been warned by the chief executive to enforce the law, wilfully and deliberately participated in carrying out the policy which resulted in the lawless conditions found by the majority to exist, and in my judgment the reasons for dismissing the action are unsound.
2. I cannot agree to the majority’s construction that “to wilfully fail, neglect or refuse to enforce a law,” as applied to the statutory duty of an officer, “involves more than oversight or carelessness or voluntary neglect,” and that “it must be prompted by some evil intent, or legal malice, or at least be without sufficient grounds to believe that he is performing his duty.”
There is a vast difference between the meaning of the words “wilful” and “wilfully,” as used in criminal statutes, and the same words, as used in statutes imposing duties on public officers and providing punishment for failure to perform those duties. The distinction has generally been made by courts and text-writers. Those words, and other familiar words used in the criminal law to describe criminal acts made punishable at common law, were intended, in some measure, to protect innocent men from the exe*335cution block of bloody rulers or to prevent the punishment of men who had committed no offense. This meaning should not be borrowed from the criminal law of the odious past and inserted by the court in a recent statute imposing upon public officers the duty to enforce legislative enactments. It should not be used to justify a guilty officer in permitting open and notorious lawlessness. The distinction mentioned led the supreme court of Michigan to observe: “The word ‘wilfully/ when used to denote the intent with which an act is done, is a word which is susceptible of different significations, depending ujxm the context in Avhich it is used.” Highway Commissioners v. Ely, 54 Mich. 173, 180.
In People v. Herlihy, 72 N. Y. Supp. 389, the captain of police in command of the Twelfth precinct of New York City was indicted for “wilfully omitting to jierform a duty enjoined upon him by law.” The conditions in his precinct resemble those in Omaha, as described in the opinion of the majority. In New York the captain was charged by law “with the duty of observing and inspecting houses of ill fame, repressing all unlawful and disorderly conduct and practices therein, enforcing the law and preventing violations thereof.” The captain demurred to these facts:- “(1) That he was captain of police; (2) that the law enjoined upon him the duty of carefully inspecting all -houses of ill fame and houses where common prostitutes resort or reside, to repress and restrain all unlawful or disorderly practices therein, and to enforce and prevent all violations of law; (3) that during a certain period of time, and while he was in command of the Twelfth precinct, there were 109 houses of ill fame therein kept and maintained openly and notoriously; and (4) that he wilfully neglected his duty by permitting such violations of law to continue, and by omitting to take proper and effective means for their repression and prevention.” In part, the court in the case last cited said: “Can it be seriously contended that a captain of police is not a public officer, or that he is not *336in duty bound to enforce the law, or that the maintenance of a house of ill fame is not a violation of law, or that if houses of ill fame are notoriously maintained in his precinct it is not his duty to suppress them, or that if he wilfully neglects to suppress them he is not guilty of a neglect of duty, or that for such neglect of duty -he is not amenable to the law? If these propositions can be successfully maintained, there is an end to the prosecution, and, indeed, there is an end to all responsibility of the policeman as a public officer. But such is not the law, for of necessity to the very existence of organized society a public officer is bound to a strict performance of and responsibility for the duties which devolve upon him. It is a rule of general application that every wilful disobedience of law enjoining the performance of official duties, and every wilful neglect of such duties, is a crime, and neither corruption nor injurious result need be proved as an essential of the crime. Both the common law and the statute declare this rule to be the law.”
A statute of Kentucky required public service corporations to report to the state auditor the information necessary for the purposes of taxation, and imposed a penalty for “wilful failure to make such report.” Referring to the sections containing those provisions, the supreme court of Kentucky decided: “The word ‘wilful,’ as used in those sections, does not mean a deliberate determination to refuse to make the report for the purpose of defrauding the state, or evading or hindering it in the collection of taxes. The term, as used in the statute, -simply means a voluntary act of the defendant as distinguished from coercion, or, in other words, that he was free to report or not to report.” Louisville & Jeffersonville Ferry Co. v. Commonwealth, 104 Ky. 726.
In People v. Brooks, 1 Denio (N. Y.) 457, 43 Am. Dec. 704, a justice of the peace was called to account for “wilful neglect of duty” in refusing to comply with a statute requiring him to take an affidavit., In defining the meaning of the statutory term, the court in that case said: *337“The language of the statute is, that the neglect-of duty must be ‘wilful,’ and this neglect was of that character. The justice knew -what was asked of him, and he knew what he refused; there was nothing like surprise, inadvertence or misapprehension on his part. He refused to administer the oath, and he intended so to refuse. This was a wilful violation of duty, for ‘every intentional act is necessarily a wilful one.’ Commonwealth v. Green, 1 Ashm. (Pa.) 289.”
A statute of Kentucky required every superintendent of schools to settle his accounts before August 1, and provided for Iris punishment for “wilful failure” to do so. In Tracy v. Commonwealth, 76 S. W. (Ky.) 184, it Avas ruled: “The failure of a superintendent to make his settlement within the time required was a ‘wilful failure,’ where it-was voluntary, notwithstanding his excuse that he failed to do so because certain receipts for moneys paid had been destroyed, and it was his purpose to make the settlement as soon as he could obtain duplicates.”
A statute of Neve York empowered the superintendent of public instruction to remove any school officer who “wilfully” disobeyed his decision. In construing that provision in People v. Draper, 63 Hun (N. Y.) 389, the supreme court held: “ ‘Wilful’ in the statute giving the superintendent power of removal was equivalent to ‘intentional.’ ”
The precedents show that the word “wilfully,” as used in a statute imposing duties on a public officer and providing penalties for the violation of those duties, does not mean, as stated in the opinion of the majority, “some evil intent, or legal malice, or at least be without sufficient grounds to believe that he is performing his duty.”
In State v. Hastings, 37 Neb. 96, cited to sustain the opinion of the majority, the court was trying an impeachment for “misdemeanor in office” — a technical term used in the constitution. Its meaning is not the same as the term construed in this case — “wilfully fail, neglect or refuse to enforce any law.” The case is not in point.
*338In the opinion of the majority it is said that “the chief of police is appointed by the board and removable at its pleasure.” Tins means that the board may remove him from office without notice or hearing, with all the attending consequences. In State v. Smith, 35 Neb. 13, this court said: “Where by law there is no fixed term of office and the incumbent holds during the pleasure of the appointing power, the power of 'removal is discretionary and may be exercised without notice or hearing.”
It is thus established that the board of fire and police commissioners, without notice or hearing, may remove respondent and deprive him of all hope of a pension, if lie refuses to follow their policy of permitting open and notorious lawlessness, and I have been unable to follow the course through which the power of removal for wilful failure to enforce the law, when extended to this court, became suddenly of so little consequence to society, and of such magnitude to the individual person who as chief of police knowingly permits open and notorious lawlessness, that it is now “highly penal,” requiring, as a condition of its exercise, evidence “clear and satisfactory,” though it is declared in a long line of earlier decisions that a mere preponderance of the evidence establishes any issue in a civil case. This court was once of a different opinion. In State v. Sheldon, 10 Neb. 452, it is shown that a county treasurer was removable for the statutory ground of “wilful neglect of duty.” In the opinion it is said: “The county treasurer, having failed to account for the moneys in his hands properly chargeable against him as treasurer, is guilty of wilful neglect of duty, and may be removed from office; and the fact that the moneys were stolen is no legal .justification for the failure to account for them.” This is in harmony with the following doctrine announced by Wharton: “A man who undertakes a public office is bound to know the law, and to possess himself diligently of all the facts necessary to enable him in a given case to act prudently and rightly. If he do not, and through mistake of law or of *339fact be guilty of negligence, be commits a penal offense. This seems bard law, but it is essential to tbe safety of tbe state.” 2 Wbarton, Criminal Law (lOtb ed.) sec. 1582.
3. Tbe statute providing for tbe removal of officers who fail to perform tbeir duty is a remedial statute. Sedgwick in bis work on Statutory Construction says: “Remedial acts are those made from time to time to supply defects in tbe existing law, whether arising from tbe inevitable imperfection of human legislation, from change of circumstances, from mistake, or any other cause.” Sedgwick, Statutory Construction (2 ed.) p. 32. Tbe same author also adopts tbe following rule of Dwarris: “Tbe words of a remedial statute are to be construed largely and beneficially, so as to suppress tbe mischief and advance tbe remedy.” Sedgwick, Statutory Construction (2d ed.) p. 309. Both of the foregoing rules were adopted by this court in its early history and were followed until tbe majority opinion in this case was written. Buckmaster v. McElroy, 20 Neb. 557. Tbe statute making additional provisions for the removal of police officers does not deal with a new subject. It was intended as an additional civil remedy. It should be construed to give effect to its provisions with a view to correcting tbe mischief at which tbe legislation is directed. Tbe construction of tbe majority has tbe opposite effect. It weakens tbe statute, and in many cases will make it inoperative. In my judgment the dismissal cannot be justified.
Letton, J., concurs in tbe dissent.