(after stating the facts as above). The first point raised by appellant is that the court erred in overruling the demurrer and the objection to the introduction of any evidence under the accusation. The accusation accused the appellant and four other commissioners with charging and collecting illegal fees. Defendant and appellant contends that several separate causes of action against several commissioners were united, and that no such joinder is authorized and contemplated by § 9646, Rev. Codes 1905, under which the proceedings were brought.
The proceedings provided for in § 9646, Rev. Codes 1905, are neither civil nor criminal, but of a character peculiar to themselves. The remedy is one “in which the‘legislature has seen fit to provide a special practice which governs in such proceeding only, and is not elsewhere used, either in civil actions or in special proceedings, so called. The legislature creating this remedy has seen fit to borrow a few features only of the procedure which governs in civil actions, but the whole of such procedure has not been incorporated in this statute.” The act, indeed, establishes its own due process of law. Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143; Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111; Woods v. Varnum, 85 Cal. 639, 24 Pac. 843; Skeen v. Craig, 31 Utah, 20, 86 Pac. 487; Ponting v. Isaman, 7 Idaho, 283, 62 Pac. 680; Fuller v. Ellis, 98 Mich, 96, 57 N. W. 33. The object of the statute is to protect the public from corrupt officials, and not to punish the offenders. Ponting v. Isaman, 7 Idaho, 283, 62 Pac. 680. The right of the legislature to act in the matter arises from the exigencies of government, and is to be found in its inherent power to act upon all subjects of legislation, subject only to constitutional restrictions. There are to be found in the Constitution of North Dakota no provisions which forbid a special procedure in such matters.
In the new process of law that is prescribed, there is no insistence upon the strict rules of practice which prevail in either civil or criminal actions. The intention of the legislature seems to have been that the remedy should be summary, and that all technicalities should be waived. It seems, indeed, to have contemplated a speedy hearing, in order that the public might be protected from incompetent or dishonest officials, and that only those rights of established procedure should *538be recognized which are fundamental in their nature and essential to the administration of justice. Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143. No demurrer to the accusation seems to have been contemplated, as its interposition would necessitate delay. Ibid.
Nothing is said in the statute or in the case of Myrick v. McCabe, supra, in regard to an objection to the introduction of any evidence under the accusation. We believe, however, that the same reasoning and principles apply, and that in this matter, as in the case of the demurrer, we must bear in mind the fact that the affording of a summary and speedy relief was a controlling part of the legislative intention. For these reasons we believe and hold that an objection to the introduction of any evidence under the 'accusation should be allowed and sustained where it affects the real merits of the controversy and the real and fundamental rights of the defendants. It should not be sustained where the only defects complained of are an improper joinder of parties defendant and of issues involving different parties, and those defects have, as in the case at bar, been cured and eliminated from the proceedings by the granting of a motion for a separate trial. It is claimed, it is true, that the mere making of such a request has a tendency to prejudice the movant by arousing the hostility of the other defendants. It is difficult, however, for us to see how the separation of the issues by a motion for a separate trial would evoke the enmity of the other wrongdoers, any more than a separation of such issues by a demurrer or by an objection to the admission of ¿vidence under the complaint, based upon the ground of an improper joinder of parties. In the case at bar, also, it is by no means unworthy of consideration that the other defendants were not called as witnesses by either side.
Nor do we believe that the trial court erred in permitting the examination of the defendant as an adverse party. The examination was not held prior to the trial, but upon it. It was not a preliminary examination of the adverse party, but an examination of him as a defendant during the trial. It was a denial merely of the right to assert the old common-law privilege of refusing to testify in an action against one’s self during the pendency of that trial. Sec. 9646 of the Revised Codes of 1905 provides that the' trial shall be conducted in the same manner as a trial by jury in a civil action. There is no question that *539In a civil action the defendant can now be compelled to testify. See. 7252 provides for the examination of the adverse party upon the trial, .and is entirely separate and distinct from § 9646, which provides for an examination before trial. Whether such examination can be had under the proceedings authorized by § 9646 is not necessary for us to determine. It is sufficient to say that the examination can be had under the proceedings authorized by § 7252, as amended by chap. 4, Laws of 1907, provided that in such examination the constitutional right of the defendant to refuse to testify as to matters which may tend to render him liable to prosecution in a criminal action is recognized and preserved. This privilege, however, is a privilege which must he specifically asserted and relied upon, and we find no such assertion in the record before us.
Counsel for appellant takes exception to the court’s instruction that the defendant had no right to charge a per diem for time spent in' going to and from the meetings of the hoard of commissioners, and that the charging of such fee furnished a ground for removal from office. It is admitted that the instruction is sustained by the decision of this court in the case of State v. Richardson, 16 N. D. 1, 109 N. W. 1026, but counsel asks us to review and overrule that decision. This, however, we can hardly do. Though we may doubt the wisdom and justice of the rule therein announced, and though the opinion was signed by but two justices (the third not participating), its public policy has been affirmed by two legislatures, and it once having been the established law, we now feel that it is for the legislature, and not for us, to overturn it, if overturned it should he.
The opinion in the case of State v. Richardson, indeed, was handed down in November, 1906. In 1911 the statute as construed by that decision was reconsidered and amended by the legislature, and the per diem raised from $4 to $5. No other change, however, was made in the statute. See chap. 119, Laws 1911. It is quite reasonable to presume, and in fact we must presume, that the legislature of 1911 reconsidered the whole act as construed hy the case of State v. Richardson, supra, and that the increase of $1 per day for the per diem was made in consideration of the holding in that case. Again and in the legislative session of 1913, a bill was introduced which specifically *540provided for a per diem fee for time spent in coming from and going* to county commissioners’ meetings, provided that the commissioner lived more than 20 miles from the county seat. This bill was rejected, though it is quite clear that the whole matter was canvassed and discussed.
The question, indeed, has not only been passed upon in a prior decision of this-court, but the public policy and wisdom of that decision has been considered in two legislative sessions, in both of which it has-been approved and upheld. It is hardly within our province to now change the rule, even if we desired to do so.
Appellant also objects to the court’s instruction that the state was-required to prove by a fair preponderance of the evidence that the illegal charges were made, etc. ITis first claim is that the acts complained of, if illegal at all, were of a criminal nature, and that the proof should have been beyond a reasonable doubt. His next contention is-that even if not criminal, they were, if illegal at all, fraudulent in their nature, and, being such, the proof was required not merely to preponderate, but to be clear and convincing, and that the jury should have been so instructed.
In answering the first point, it is sufficient to say that the present proceedings are not strictly criminal in their nature, and the statute has expressly provided that the civil rules of practice shall prevail on the trial.
As far as the charge of fraud is concerned, if such a charge is involved at all, the instruction that the same must be proved by a fair preponderance of the evidence was sufficiently favorable to the defendant, and all that was required under the authorities. All that is-necessary, indeed, in civil cases, is that fraud shall be satisfactorily and clearly proved, and the language usually used by the courts is, “by a preponderance of the evidence and to the satisfaction of the jury.” This was the clear meaning of the words, “by a fair preponderance of the evidence,” which were used by the trial court. Jones, Ev. § 192.
We find no merit in the contention that the charge for the attendance at the association of county commissioners at Fargo, which is conceded was illegal, was not “a charge and collection of illegal fees for services m his office,” for which the defendant could be removed. It *541is sufficient to say that it was presented and allowed as a fee of the office. See Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 1111.
Nor did the court err in charging the jury that the defendant was not entitled to charge as a commissioner for his visit to Minot for the purpose of seeing if arrangements could not be made with the Ward county board to receive the Williams county paupers at the Ward county poor farm. While on such visit the defendant was acting as an overseer of the poor, under the provisions of article 1 of chapter 24, Nev. Codes 1905, relating to such overseers. As such he was entitled to a per diem of $2, provided for in § 1868, Nev. Codes 1905. He was caring for the poor and seeking to lodge them, the same as if he had gone to a farmer or other person in his own county for the purpose, though even then there is some question as to whether the act was legal under § 1884, Nev. Codes 1905, which prohibits the sending of paupers out of the county. He was certainly not acting as a commissioner under § 1871, Nev. Codes 1905. He was not, in short, negotiating for the purchase of a poor farm, or for the erection of a building upon such poor farm within the county.
Nor did the court err in regard to the charges for purchasing and distributing the seed grain and collecting therefor. It may be that it would have been well for the legislature to have provided for compensation in such cases, and to have made the collection of the liens a special duty of the commissioners. It does not seem, however, to have done so. The seed lien statute, indeed (chap. 210, Laws 1909), seems to limit the duties of the commissioners to. the issue and sale of bonds and warrants, the purchase and sale of seed grain and feed, and the examination and adjustment of applications for grain. It is true that § 2401, Nev. Codes 1905, as amended by chap. 118, Laws of 1911, gives to them the general superintendency of the fiscal affairs of the county. This general superintendency, however, can hardly be held to involve the right to perform, or at any rate the right to charge for, services which would more properly belong to the auditor, the treasurer, the state’s attorney, and the sheriff. Objection is also taken to the instruction that “if by a fair preponderance of the evidence the state has proved that defendant has charged and collected illegal fees for services performed in his office, then the burden of proof shifts to the de*542fendant, and is upon him to prove that in charging and collecting such fees that said defendant acted honestly and under the belief that he had the legal right to charge and collect the fees in question.”
Counsel contends that it devolved upon the state to introduce evidence to show that the charge and collection was made knowingly and intentionally or corruptly, and that even then the burden of proof did not shift to the defendant, but the burden merely of the evidence or of proceeding. Even if we concede that ignorance of the law would be an excuse, and that the instruction was technically erroneous, and by its terminology confused the burden of proof with the duty of proceeding, we can see no prejudice arising therefrom.
The judgment of the District Court is. affirmed.