concurring. The majority opinion is somewhat apologetical as to the decision in State v. Richardson, 16 N. D. 1, 109 N. W. 1026. That holding is sound and in line with the overwhelming weight of authority. The statute, § 2613, Rev. Codes 1905, upon which the commissioners must base any per diem charge in going to and from their board meetings, is there construed, resulting in the only reasonable holding that could have been made, and heed have been given to the language of the statute, discriminating between duties in office and travel in attendance on board meetings. Sec. 2613 reads: “County commissioners shall each be allowed for the time they are necessarily employed in the duties of their office the sum of $4 per day and 5 cents per mile for the distance actually travelled in attending the meetings of the board, and when engaged in other official duties.” By chap. 119, Laws 1911, the per diem is increased to $5 the statute otherwise remaining unchanged. It is noticeable that the statute allows a per diem charge while performing duties in office, and an allowance for traveling in attending board meetings. The right of the commissioner to charge per diem while en route to attend the official meetings of the board' is dependent upon whether a commissioner, while so en route,' is performing official duties. Manifestly he is not. Ilis commissioner duties begin with the convening of the board, and continue so long as the board is in session, and no longer. Miller v. Smith, 7 Idaho, 204, 61 Pac. 824; Rankin v. Jauman, 4 *543Idaho, 394, 39 Pac. 1111, and Hays v. Simmons, 6 Idaho, 651, 59 Pac. 182. The fact that he is paid a per cliem “when engaged in other official duties” cannot authorize a charge as for the performance of official duties in merely traveling to attend an official meeting of the board, when no official duties are actually performed. Counsel contend that he was under a duty to attend, which made the time consumed en route devoted to performance of official duty, and for which he could charge a per diem. Any so-called duty to attend was a mere personal responsibility owing the general public, and not a duty of office. It is similar to the duty of a citizen to qualify after election to office. It is in no sense an official duty. While the. legislature, as stated in the majority opinion, have seen fit to increase the salary, but otherwise leave the law relative to compensation unchanged, and this, after the decision of State v. Richardson, would be a strong reason for adhering to the construction of the statute there given, it seems that the statute is plain and susceptible of only the one construction given in State v. Richardson.
That this is a civil action or proceeding is settled by decisions of this court in Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143; Wishek v. Becker, 10 N. D. 63, 84 N. W. 590; State v. Richardson, 16 N. D. 1, 109 N. W. 1026; and Territory v. Sanches, 14 N. M. 493, 94 Pac. 954, and note to same case in 20 Ann. Cas. 109, beginning on page 112, showing such to be the rule in all states except California and possibly Georgia.
The evidence discloses a charge made and fees obtained from the county for attendance by the defendant at a state meeting of county commissioners at Fargo, and there is evidence that such charges were made and fees were received on the advice of the state’s attorney that the same was a legal charge against the county. The charge was clearly illegal, and the jury was so instructed, but as the jury could have found the charge was made under the advice of the legal adviser of the board, the question of defendant’s intent was properly left to the jury by the instructions.
As to the right of the defendant to fees or for the charge made for receiving applications for seed grain, which is explained to have really been made for time spent in purchasing seed for the county and *544distributing it by orders to the needy, the better rule is against the legality of a charge therefor. If the board of county commissioners, as the fiscal, superintending, and administrative board of the county, desires such work done, it should authorize the proper officer, or engage an agent or employee, to do the same, or else, if done by one of their number, make or allow no charge for such services rendered or time spent. When a county commissioner is not acting with the board and as a member thereof he acts as an individual, or, if in behalf of the county, as an agent for the county. Public policy condemns employment by the board of their individual members as county agents, or agents of the board, as to do so is to mingle private interests of the individual commissioner with the performance of his duties in office. They may be presented an inducement to so act officially as to create or perpetuate employment for the individual commissioner, and official duties become apportioned as private jobs. When the point is reached that a member of a board has a private interest in the performance of the board’s official business, that moment that individual is disqualified to, with propriety, act officially. Miller v. Smith, 7 Idaho, 204, 61 Pac. 824. And for the same reason defendant had no right to make a charge and collect fees for his services in making collection of seed liens or pursuing the county property, as, under the statute (chap. 210, Laws 1909), the county is the owner and has title to and right of possession of the crop sown, raised, and harvested, for which the county has furnished the seed. The court properly instructed the jury on this question.
The record discloses that at the various meetings of the county board, from and including the 15th day of April, 1911, up to and including the 11th day of September, 1911, defendant charged, collected, and received per diems for one day in coming to attend the board, and one day returning from the board before and after its adjournment, — in all for eight instances, a charge of fifteen days or <$75 was illegally made, allowed, and collected. On September 25, 1911, the state’s attorney filed a written opinion with the board, calling their attention to the fact that it was against the law to make or allow these charges, and requesting that the individual members of the board make restitution to the county of such illegal fees, and the opinion in State *545v. Richardson, supra, was brought to its attention, ending further allowance of bills of this kind. But the record does not disclose that the county was reimbursed by this defendant.
The evidence also discloses a considerable amount paid for time spent on inspecting roads and highways. The evidence does not disclose whether this board acted jointly as in viewing proposed highways petitioned for, or bridges proposed to be built, or whether the defendant assumed to act as an agent of the board in the instances so charged for. Chap. 19, Political Code of 1905, enumerates the instances in which the board is required to act as a body in such matters, and when so acting they are performing duties, and may charge per diem and mileage therefor. Perhaps it has developed into a custom in this state for individual members of the board to act as agents of the board in instances such as are charged for here, but in so doing the commissioner is, instead, performing the duties of county surveyor (§§ 1375-1377), or road supervisor (§§ 1386-1404), or overseer of highways (§ 1410), and not a duty enjoined upon the commissioner.
The authorities are in accord in holding that the making of what is known to be an illegal charge against a county, and the reception of money therefor by a county official, constitute ground for his removal. There is some divergence of opinion as to whether ignorance of the law will excuse the public officer in making a charge and accepting illegal fees under a good-faith belief of right to do so. More or less difference exists in the wording of the various statutes defining grounds for removal by civil action. Where knowledge of the law is conclusively imputed, and the officer cannot be heard to plead ignorance as a justification for the collection of illegal fees, an occasional hardship may be worked, although seldom, as it is a matter of common knowledge that in practice the court or jury tempers justice with mercy in their findings, and hesitates to exact the letter of the bond in the absence of a wrongful or dishonest intent. On the other hand, if ignorance of the law be an excuse, the result is, as is aptly said in People v. O’Brien, 96 Cal. 171, 31 Pac. 45, and in State ex rel. Wynne v. Examining & Trial Board, 43 Mont. 389, 117 Pac. 77, Ann. Cas. 1912C, 143, “The denser the ignorance, the greater would be the exemption from liabilityand that the rule should be: “The receiving of the il*546legal fees is the gist of the wrong under the statute; and when such fees are deliberately accepted the law is violated.” See also note to last-mentioned case, reported in Ann. Cas. 1912C, 143-147. In the instant case the per diem charges were made after the decision of State v. Richardson, 16 N. D. 1, 109 N. W. 1026, which case came from a county adjoining Williams. The law was there construed and declared. It is hard to believe that this whole board of commissioners was ignorant of this interpretation of the statute fixing their compensation. The following from Miller v. Smith, 7 Idaho, 204, 61 Pac. 824-827, applies: “If ignorance of the law will excuse such flagrant violations of the law as are shown in this case, the people are at the mercy of ignorant and corrupt officials, and the plea of every dishonest or corrupt official would be ignorance of the law. Officers must be judged by their acts, and not by their plea of ignorance of the plain provisions of the law after its repeated violations which result in their pecuniary or other advantage. . . . The time has evidently come in this state when county commissioners must know their duties and do them.” See also annotations in 4 L.R.A. 360; State ex rel. Jackson v. Wilcox, 78 Kan. 597, 19 L.R.A.(N.S.) 224, 130 Am. St. Rep. 385, 97 Pac. 372, and State ex rel. Thompson v. Donahue, 91 Neb. 311, 135 N. W. 1030, and extended note to the same case in Ann. Cas. 1913D, 18—32.
The judgment appealed from should be affirmed.