*183Dissenting Opinion.
Watkins, J.At the request, anti upon the information of fifty citizens and taxpayers, this suit was brought against respondent, for his amotion, and removal from office, in pursuance of the provisions of Articles 196 and 200 of the Constitution, on the grounds that he “ has been guilty of nonfeasance and of malfeasance in office, favoritsin and oppression in office, and gross misconduct, and that he is incompetent for the duties of his office, and should be removed from office,” etc.
I.
The question presented at the threshold of the controversy is:
Wliat is the character of this proceeding i Is it a criminal, civil or political one ?
Sec. 4 Art. 2 of the U. S. Constitution declares : “The President, Vice President and all civil officers of the United States shall be removed from office, on impeachment, and conviction of treason, bribery or other high crimes and misdemeanors.
Article 196 of the Constitution provides: “The Governor,'Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Public Education and the judges of all the courts of record in this State shall be liable to impeachment for high crimes and misdemeanors, for nonfeasance or malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office ; or for gross misconduct or habitual drunkenness.”
Article 200 provides that “ for any of the causes specified in Article 196, judges of the Court of Appeals, of the district courts throughout the State, and of the city courts of the parish of Orleans, may be removed from office by a judgment of the Supreme Court of this State,” etc.; but such judgment shall not, as in case of impeachment, have the effect of disqualifying the respondent for office.
No prior Constitution designated the impeachable offenses eo nomine.
Bv the quoted provisions of our Constitution, this Court is given concurrent,, original jurisdiction, with the Senate, of impeachable offenses and misdemeanors committed by those officers enumerated in Article 200. Either impeachment or suit is a constitutional mode of removing constitutional officers from office.
The provisions of the State and Federal Constitutions are, essentially, the same. The former is moré specific as to what are impeachable crimes and misdemeanors. The constitutional power of this Court is exactly commensurate with that of the Senate. For whatever offenses the former may adjudge the latter may convict. The evidence *184to bo adduced before each is the same. The proceedings in each tribunal are of the same character. The suit and impeachment must be grounded upon the commission of some high crime or misdemeanor enumerated, or upon some gross misconduct oi habitual drunkenness.
In relator’s brief, p. 2, we find the following, viz: “ The question presented here is, as to the issue, whether or not your Honors have jurisdiction of acts committed by the defendant prior to his present term of office. We alluded, in the oral argument, to the principle that the courts, in such matters as the present, were bound by the precedents in impeachment trials. ;1 ■* *■ * The rules applicable to impeachable offenses are the same as those cognisable by judicial Tribunals.” The italics are ours. See also p. 7, a similar paragraph.
Mr. Evarts, for respondent, on the Johnson impeachment trial, said: “ You must have the crime definite, under the law and Constitution; and, even then, it is not impeachable, unless you affect it with some of the public, general and important qualities that are indicated in the definition of the learned managers.” P. 286, vol. 2.
Senator Johnson, in his official opinion, said: “ That the term crimes and misdemeanors, in the quoted clause, mean legal crimes and misdemeanors, is further obvious, from the provisions contained in the third section of the first article of the Constitution, that, notwithstanding the judgment in the impeachment, the party is liable to indictment, trial, judgment and punishment according to law. This proves that an officer can only be impeached for acts for which he is liable to criminal prosecution.
“ Whatever acts, therefore, could not be criminally prosecuted under the general law, cannot be ground for impeachment.”
On the impeachment trial of Lord Melville, in 1806, the opinion of the judges was required by the House of Lords, as to whether the charges against the respondent, of an improper withdrawal and use of funds entrusted to his care, as treasurer of the navy, were high crimes and misdemeanors within the law of England, and their answer was that they were not high crimes and misdemeanors.
Johnson’s trial, vol. 3, p. ol:
Mr. Nelson, for the respondent, argued that, in order to ascertain “ what are impeachable crimes and misdemeanors, it is necessary to go to the common law for the definition; and when you go to the common law for the definition, nothing is impeachable, in this country, within the meaning of the Constitution, except a crime or misdemeanor, known as such at the time the Constitution was adopted.” 2 vol., p. 143.
*185Mr. Groesbeck said: “ What is the issue before you ? Allow me to say, it is not a question whether this or that thing were done. You are not here to try a mere act. By the very terms of the Constitution, you can only try, in this tribunal, crime. Let us repeat the jurisdiction— ‘ treason, bribery or other high crimes and misdemeanors.’ The jurisdiction is shut witMn that language, and the issue that this Court can try is only an issue of crime or no crime.
“What is crime?
“ In every grade of it, senators, there must be unlawful purpose cmd intention. When these are wanting there cannot be crime. There must be behind the act the unlawful purpose prompting its commission, otherwise there can be no crime.” Vol. 2, p. 192.
Mr. Evarts concurred in the views expressed by Mr. Groesbeck, and in support of them quoted the opinion delivered by Lord Chancellor Thurlow on the trial of Warren Hastings :
“ My lords, with respect to the laws and usage of Parliament, I utterly disclaim all.knowledge of sueh laws. It has no existence.
“ True it is, in times of despotism and popular fury, when to impeach an individual was to crush him by the strong arm of power, of tumult, or of violence, the laws and usage of Parliament were quoted in order to justify the most iniquitous and atrocious acts. But in these, days of light and constitutional government, I trust that no man will be tried except by the laws of the land; a system admirably calculated to protect innocence and to punish crime. * * *
“ I trust your lordships will not depart from recognized established laws of the land.
“The Commons may impeach, but your lordships are to try the cause; and the same rules of evidence; the same legal forms which obtain in the courts below will, I am confident, be observed in this assembly.” 2 Vol., pp. 269 to 277.
Mr. Buchanan, chairman of the managers on the trial of Judge Peck, said: “ Official misbehavior, therefore, in a judge, is a forfeiture of his office; but, when we say this, we have advanced only a small distance. Another question meets us: What is a misdemeanor in office ? In answer to this question, and without pretending to furnish a definition, I freely admiit we are bound to prove that the respondent has violated the Constitution and the known law of the land.
“This, I think, was the principle fairly deduced from all the arguments on the trial of Judge Chase and from the votes of the Senate on the articles of impeachment against him.” Peck’s trial, p. 427; Johnson’s trial, Vol. 2, p. 287.
*186In liis Commentaries on the Constitution, Mr. Justice Story says:
“ The doctrine, indeed, would he truly alarming, that the common law did not regulate and control the powers and duties of the court of impeachment.
“ What would, otherwise, become of the rules of evidence, the legal notions of crimes, and the application of principles of public or municipal jurisprudence, in the charges against the accused'?
“ It would be a most extraordinary anomaly, that while everycitizen of every State, originally composing the Union, would be entitled to the common law, as his birthright, and at once his protection and his guide, as a citizen of the Union, he would be subjected to no law, to no principle, to no rules of evidence.
V It is the boast of English jurisprudence — and without it the power of impeachment would be an intolerable grievance — that, in trials by impeachment, the law differs not in essentials, for criminal prosecutions before the inferior courts.
“The same rules of evidence, the same notions of crimes and punishments, prevail.” Sec. 798.
Again: “It seems to be the settled doctrine of the high court of impeachment that, though the common law cannot be a foundation of a jurisdiction not given by the Constitution and laws, that jurisdiction attaches, and is to be exercised according to the rules of the common law; and that, what are, and.what are not, high crimes and misdemeanors, is to be ascertained by a recurrence to the great basis of American jurisprudence.” Sec. 799.
Mr. Justice Blackstone says: “A crime or misdemeanor is an act committed or omitted, in violation of a public laW, either forbidding or commandingit.” 4 Black, p. 5.
“ In the English law, misdemeanor is generally used in contradistinction to felony; and misdemeanors comprehend all indictable offenses which do not amount to felony,.as perjury, battery, libel, conspiracy,” etc. * * * * “ The word ' crime ’ has no technical meaning in the law of England. It seems, when it has reference to positive law, to comprehend those acts which subject the offender to punishment.
“When the words 'high crimes and misdemeanors’ are used in prosecution by impeachment, the words ' high crimes ’ have no definite signification, but are merely used to give greater solemnity to the charge.” 4 Black, p. 5, and note.
This concordance of authority and precedent establishes conclusively that the terms “high crimes and misdemeanors,” employed in the Federal as well as the State Constitutions, indicate legal crimes and *187misdemeanors; and that an officer can only he impeached, or suit be brought against him, for amotion, for acts for which he is liable to criminal prosecution, under the principles of the common or statute law.
It further establishes that an officer cannot be tried in an impeachment tribunal for acts, but only for crimes. That the “jurisdiction is shut within ” the language of the Constitution. That in every grade of crime there must be unlawful purpose and intention prompting its commission. When these are wanting there can be no impeachable' crime or misdemeanor.
It further establishes that in impeachment trials, the same rules of evidence, the same legal forms, prevail as in other courts of the land; and that the respondent may claim the benefit of the rule in criminal cases that he may only be convicted, when the evidence makes the case clear, beyond a reasonable doubt.
It further establishes that misdemeanoi’s in office are the violations of some known law of the land, and that in trials therefor, by impeachment, the law differs not in essentials from criminal prosecutions before the courts, and the same notions of crimes and punishments obtain therein. That the remedy and redress thereof, by impeachment, must be exclusively ascertained and exercised in conformity with these laws, which lie at the foundation of American jurisprudence.
This collation of authority and precedent was rendered imperative, by reason of there being no adjudicated case, to which we have been referred or that could, after diligent research, be found.
For the first time since the organization of the State government, this Court was given, by the Constitution of 1879, jurisdiction of such a proceeding as this; and this case is the first one that has been insti t.nted under it.
H.
The next impoi tant question to be determined is: What are nonfeasance and malfeasance in office ? What are corruption, favoritism, extortion and oppression in office?
We will treat of “ gross misconduct ” in a separate paragraph.
A statute of this State declares that “ all crimes, offenses and misdemeanors shall be taken, intended and construed, according to and in conformity with, the common law' of England.” Another statute declares that any oppression, or extortion in office, is punishable ; and that any one guilty of a misdemeanor in office, shall suffer fine or imprisonment. R. S. 976, 868, 869.
To ascertain what are the constituent elements of misdemeanor, extortion and malfeasance in office, the criminal law must be consulted. *188For the same manner and character of evidence must be adduced as before the courts of ordinary criminal jurisdiction; and that this court, sitting on the trial of a suit for the amotion of a civil officer, jurisdiction of which is given thereto, by the same constitutional provisions, which confer upon the State Senate jurisdiction of impeachment trials, against same officer, must be governed thereby also.
Dr. Wharton, in the ninth edition of his criminal law, announces the following principles:
“ It is a misdemeanor at common law for a public officer, in the exercise, or under the color of exercising, the duties of his offico, to abuse any discretionary power with which he is invested by law, from am improper motive.” Sec. 1572.
“ In an indictment against an officer of justice, for corrupt misbehavior, it is necessary that the act, imputed as misbehavior, be distinctly and substantial^ charged to have been done with /mowing Ip corrupt, partial, malicious and improper motives, though there are no technical words required, in which the charge of corruption and knowledge shall be made.” Sec. 1573.
“ Malice, corruption, or evil intent, when essential to the case, may be inferred, as presumptions of fact from the evidence.” Sec. 1590.
■ In Mr. Bishop’s recent edition of his work on Criminal Procedure, we find the following precepts laid down:
“In general, corruption, in some form of words, ought to be averred. It is believed to be always necessary in indictments at common law. ,It is commonly, if not always, so under statutes,” etc. Vol. 2, sec. 834.
“The question of malice is for the jury. A sufficient presumption of it may arise from a wrong act, intentionally done. But a mistake of law, especially in a judicial officer, is inadequate proof of corruption.” Vol. 2, sec. 836; 2 Bishop’s Crim. Law, secs. 966, 977.
“One serving in a judicial, or other capacity, in which he is required to exercise a judgment of Ms own, is not punishable for a mere error therein, or for a, mistake of the late. His act, to be cognizable criminally, or even civilly, nmsi be wilful and cormpi.” 1. Bishop’s Crim. Law, secs. 460, 299.
“Extortion, in its general sense, signifies any oppression by color of right; but technically, it may be defined to be the taking of money by am officer, by reason of his office, either when none is due, or none is yet due.” 2 Whar. Crim. Law, sec. 1574.
“ But to extortion, at common law, and under most of the statutes, corrupt motive is essential. And if there be no such motive, and the *189money be voluntarily given, for extra- work, the indictment is not sustainable at common law.” Ditto Sec. 1576.
“ A mere agreement to pay is void, and will not sustain a charge of extortion.” Ditto Sec. 1577.
The same principles are announced in Russel] on Crimes, p. 135, 142.
Applying these principles, we find that a misdemeanor in office, or under color of an office, necessarily involves an improper motive, and the act must be done with corrupt, malicious or improper intent, or be infused from a wrong act, intentionally done.
We also find that extortion or oppression in office is the taking, by a civil officer, of money when none is due, or none is yet due, with a corrupt motive; but that a mere agreement to pay ■money will not sustain such a charge.
In such case, the question is not whether the act might, be found correct upon full investigation ; but did it proceed from dishonest, oppressive or corrupt motive. ■
To make out the charge of corruption, extortion or oppression in office, the proof must show an unlawful taking, by a public officer, by color of his office, of money, or some valuable thing, that is not due him. A promise to pay money to an officer is simply void.
. TIL
The first specification in the complaint, epitomized, is that on the 3d of March, 1882, the respondent caused an order to be entered on the minutes of his court in the matter of the Succession of Nicholas Quiazzaro, directing the proceeds of property belonging thereto to be invested in bonds of the State, known as baby bonds, and thereafter procured a copy of same on same day and gave it to Charles E. Sel, and directed him to collect the balance of $291.54, to the credit of said succession in the hands of Ben Onorato, auctioneer, and offered him a reward for so doing; but on Onorato refusing a check on the presentation of said order, and same having been returned by Sel, respondent wrote on said copy at the foot thereof and before the seal of the court additional words, directing Onorato to pay said sum to bearer, to-make said investment — said alteration having been made out of the presence of counsel and when court was not in session.
The further specification is made that, by the respondent’s direction, Sel procured said balance in money and handed same to him — the respondent — and that he has never accounted therefor to the heirs, tutrix or other representative of the succession.
“And that said Lazarus thus illegally and without any color of law or right, and in violation of his duty as a judge, obtained possession of the money of said Quiazzaro-succession.”
*190This charge and specification are susceptible of division into two heads, and each head may be separately considered :
1st. A charge of embezzlement or larceny of the money by respondent.
2d., The liability of the respondent to amotion for the taking and disposing of the money, although he may have been actuated by honeRt intentions and proper motives — upon the theory that the act was not a lawful one, and respondent was guilty of “vicious intromission ” or its equivalent.
IV.
In order to eliminate all unnecessary issues, we will first dispose of the charge of “vicious intromission” and intermeddling with the succession, pretermitting discussion for the present as to whether or not there was a succession, as a matter of law.
There is a law of this State on the subject, which furnishes the only correct guide in the premises. It is found in R. S. sec. 3685, which provides that “ in case any person shall take possession of a vacant estate, or a part thereof without being duly authorized to that effect, with the intent of converting same to his own use," he shall be liable to prosetion and punishment by fine, and made liable for the debts of the estate.
But when that statute was, in its revision in 1870, incorporated into the Civil Code, as Article 1100, that clause appertaining to criminal prosecution was omitted therefrom.
The history and interpretation of those statutes will be found in 12 Ann. 245, Walworth vs. Ballard; 12 Ann. 344, Carl vs. Poleman; 30 Ann. 949, Peet, Yale & Bowling vs. Nalle & Cammack; 34 Ann. 326, Succession of Trosclair.
But civil liability cannot be enforced without proof of the intermeddler’s intent to appropriate the effects of the succession. Unless such proof is administered the accused cannot be convicted. That is the sine qua non.
Germain to this is the further contention of relator’s counsel that respondent is guilty of malfeasance in office, because he undertook the investment of the funds of the minor, without being thereto authorized by law. •
The investment was authorized by the express terms of R. C. C. 348.
Tt is as follows: “ The investment of the funds of the minor must be made by public act and secured by mortgage, unless suchinvestment bemade in bonds of the State, or in bonds for the payment of which the faith of the State of Louisiana stands pledged; and this investment shall only *191be made under decree of the court having jurisdiction of the tutorship ; nor shall such investment be changed, or the hands alienated, except by a decree of same court, etc.”
The investment in bonds cannot be made without a decree of court. This is a new article of the Code, and embraces the substance of the act of the 19th of March, 1857, but it makes an important addition thereto of the phrase, viz: “and this investment in bonds shall only be made under a decree of the court having jurisdiction of the tutorship.”
Antecedent to the revision of tlie Code in 1870, a tutor was authorized to make such an investment in bonds by that, statute; but, under the Civil Code of 1870, it was perfectly immaterial whether the tutrix was faithful or unfaithful to her trust, she was without legal authority to make, an investment in bonds of the funds of her ward without a d,ecree of court.
The funds were not, indeed, in the bauds of the tutrix of Arseue Quiazzaro. They were in the judicial depository, and had been therein deposited to await the adjustment of the taxes and costs of selling the property of 'widow Quiazzaro, the proceeds of which the funds were; and on which the minor only had a tacit mortgage, postponed in rank to the liens of the State and city, and auctioneer.
Tlie surplus of $291.54, now in controversy, was realized only by scaling the tax penalties and interest, and was quite as much under the control and destination of the respondent as that portion which had been expended on his orders previously made.
If there had been any serious doubt as to the' rightfulness Or propriety of the respondent’s orders for the investment of the funds under the circumstances related herein, they were dispelled by the evidence of a leading member of the New Orleans bar, who testified on behalf of the relator. He said:
“ In my answer to the question of the grand jury, in reference to the-power of probate judges, I stated that, as a general rule, the tutor made the investment of minor’s funds; that I considered there were cases when the minor’s funds were in danger; when there was no tutor appointed to take charge of them; or when there were other circumstances which endangered the funds, I considered that the probate judge might with propriety, as a conservative measure, direct the investment of the funds.
“ I.stated in that conversation (with the respondent), that 1 recalled a case of my own, Judge Lea being on the bench, * * * and I stated that this ease was one which occurred under Judge Lea’s ad*192ministration, in which T had been directed myself to matte the investment,” etc.
Judge Lea became a member of this court in 1852, hence that occurrence happened prior to the enactment of the statute of March 19th, 1857.
If it was excusable in Judge Lea to authorize the attorney for the tutor to make the investment, why mightnotthe respondent authorize the minute clerk of his court? The only difference consists in the choice of agents to effect the investment.
No importance should be attached to respondent’s selection of one of several persons for the performance of the duty.
So far as the principle involved is concerned, it was quite immaterial whether respondent had selected the bank, the broker, or the attorney of the tutrix in lieu of his clerk.
V.
But the point is made that the bonds in which the investment was made never reached their destination, and respondentis responsible on that account.
His counsel insist that the burden of proof was. on relator to clearly establish that fact; and not having done so, a presumption is raised in favor of their safe delivery. That it was the duty of the relator to have introduced the tutrix, and to have shown by their testimony, their «oa-delivery to them.
The decisions are to that effect. “ One who charges another with a culpable omission or breach of duty must prove the fact, although it involves a negative.’’ 90 S.48; 3 N.S. 576; 2 Ann. 503; 6 Ann. 175; 13 Ann. 215.
“The burden of proof is on him who has to support his case by a fact, of which he is supposed to be most cognizant, and the evidence, of which is more within his power than of his opponent.” 11 O.S. 4, 194; 13 La. 534; 10 Ann. 639; 13 Ann. 379; 15 Ann. 509; C. C. 3.
“ A fact material to the plaintiff’s case, and susceptible of proof by him, he must prove, though negative in character.” 14 Ann. 207, Bonus vs. Robichaux.
“ The best evidence which, from the nature of the case, must be supposed to exist, and be within a party's control, must be produced.” 8 N. S. 289; 5 R. 330; 9 R. 381; 2 Ann. 387.
The burden of proof was on the relator to establish the non deli very of the baby bonds to the tutrix or her attorney of record.
The further argument was made by relator’s counsel to the effect *193that there was no occasion for the respondent making the investment in $5 baby bonds, as he might have selected those of a greater denomination.
That is error. The debt ordinance authorized but one denomination of baby bonds, and that is $5. The ordinance relative to the State debt does'authorize several denominations. But the baby bonds are. the better security, because they bear a better rate of interest, mature at an earlier date, and enjoy a preference for other payment in taxes.
Further complaint is made of the respondent’s failure to have the bonds registered by the State Auditor.
R. C. 384 only makes it the duty of the judge to make the necessary decree, and to restrict the negotiablity of the bonds.
But it makes it the d/wtnj of the tutor to furnish the Auditor * * * with a copy of the decree of court authorizing such investment, and to rouse the bonds to be registered in the office of the Auditor.
Jt is provided by R. S. sec. 203 “ that any tutor * * who shall fail to have the bonds, so purchased, registered and countersigned, * * shall be deemed guilty of a misdemeanor, and shall suffer fine and imprisonment.”
As we have already held that, presumably, the bonds had reached the hands of the tutrix, that duty devolved upon her to have them registered.
VI.
This brings us to the discussion of the charge brought against the respondent of having stolen, or embezzled, the balance of $291 54, as the property of the succession of Nicholas Quiazzaro.
rt is necessary to a clear understanding of the question that a brief statement of facts be made. Nicholas Quiazzaro died in 1868, and one Pioggio administered his succession, which was appraised at $29,752 97. His widow, Elizabeth Quiazzaro, qualified as natural tutrix for the three children, Ernestine, Gilbert and Arsene Adelaide.
In June, 1870, the administration was completed, final account filed, the administrator discharged, and the residue of $23,642 97 turned over to the tutrix.
In 1869 Widow Quiazzaro purchased, in her own right, the two improved lots, the balance of the proceeds of the sale of which is the subject of this controversy.
In 1870 the widow married a second husband, and thereby lost her usufruct of the children’s share of the estate, and — notwithstanding she had been retained in the tutorship — she owed interest on same, $11,821 48, to them.
*194In February, 1881, the tutrix presented to respondent a petition in which she stated her indebtedness to her children and her desire to settle with them, and that she was utterly destitute of means outside of said property, and that same was about to be sacrificed for taxes, but that she could not effect a sale thereof without the minor's tacit mortgage was raised, and she desired the authority of a family meeting to that effect, which, on proper proceedings, was granted,.
Respondent declined to homologate the deliberations thereof until a trusted expert had examined and reported the amount of taxes and costs of sale, which were found to be in excess of the probable sale value of the property. The taxes were adjusted and reduced, and sale was ordered on the terms proposed. The proceeds were deposited in the. Branch Depository and disbursed on orders of court in payment of taxes and cost of sale, and the resulting balance is the $291.5-1 in controversy’'.
On the 3d of March, 1882, the following order was entered on the minutes of. respondent’s court, viz :
“More than six months having elapsed since the sale, of the property in the above succession, and uo opposition to the distribution of same having been made, and no one claiming any’ interest in the proceeds of said property other than the minor Quiazzaro,
“ It is ordered that the proceeds of said property belonging to said Succession of Quiazzaro, be invested in bonds of the State known as baby bonds, and that said bonds be registered by the Auditor of the State, under R. C. C. 318.”
It was in pursuance, of this decree, that the investment of the $291.51 was to bo made.
Respondent, as witness in his own behalf, makes substantially the. following statement of the transaction :
He says that he had forgotten about the Quiazzaro matter until F. A. Luminais, his minute clerk, invited his attention to it on the 2d of March, 1882, and suggested that the balance of about $200 should be invested under a previous order of court; and that on account of his suggestion he made'the preceding order of the 3d of March, 1882. He states that on the same date, on his way to court, he called on Mr. Henry Bier, a bond broker, and induced him to make the investment without any commissions being charged therefor.
On that day he directed Mr. F. A. Luminais to make a copy of his decree and take it to Mr. Onorato, and get a check and go to Mr. Bier’s and invest the amount of it in bonds, mentioning the. arrangement he had made with him. lie pleaded business, and suggested that *195Charles E. Sel be sent in his place. He was given the copy of the order and sent to Onorato, who declined to give a check tmlil ihc order was made more specific, as it 'was. Soon after, Mr. Sel returned with a roll of bills, which he handed to respondent, and which he immediately and without counting handed to Luminais, and requested him to go to Bier’s and purchase the bonds.
Ho states that on the Monday morning following, the 6th of March, J 882, he inquired of Mr. Luminais if he had purchased the bonds, and he told him that he had, but had left them with Mr. Bier. On Tuesday morning, the 7th of March, 1882, he again made inquiry of Luminais for the bonds, and he again pleaded business, and suggested that Sel be sent; and he was dispatched for them, and procured them and brought them to court, and delivered them to Mm (respondent); and that he immediately handed them to Luminais, with instructions to verify or paraph them,, and hand them to counsel for tutrix. Luminais requested some additional instructions in paraphing them, and that he withdrew one from the package and wrote an indorsement thereon as a guide, and Mr. Luminais took the package of bonds and walked out.
He states that he never examined or counted the bonds. That Mr. Sel said they were correct. He said he met Mr. John Lemonnier, counsel for the tutrix, a few days afterward, and notified him of Mr. Luminais being in possession of the bonds.
The books of Mr. Bier show that the amount actually invested was only $199 63, in lieu of $291 54. There was a deficit of $91 91 iniacaeeounicd, for by any one.
The essential variations between the testimony of the respondent and that of Charles E. Sel are, viz :
1st. Sel swears that the respondent appointed him a custodian in that matter, and promised him a fee of $5.
2d. That when he collected Onorato’s check, he counted the, money paid him by the paying-teller; that he returned with the money to court and handed it to respondent, and that he put it in his pocket, bo thinks.
3. That on the morning he was sent by respondent to Bier’s for the bonds, he procured them and returned to court with them, and delivered them to the respondent; aud that he handed than bach to him with the request that he should keep them for the present, saying: “ You are custodian.” That he took them and kept them several days, until the respondent called for them.
The testimony of Theodore Marks corroborates respondent’s statements on the last two points, and contradicts that of Sel. The testi*196mony of Doran substantiates that of the respondent in regard to the surrender of the bonds to Luminais to paraph, and Marks, also.
Marks does not fix the precise date on -which Sel brought the bonds to the respondent; but he details the circumstances of Sol being-sent for the bonds, and of his return within three-quarters of an hour with them and at once delivering them to the respondent, and immediately going away — all on the same day, and about the same hour of the day.
Relator’s counsel place strong reliance on the evidence of Sel. They state in argument that “the man who got the mopey used the $91; that the man who bought the bond used the $91. The turning point in the ease is, who purchased the bonds? Whoever purchased tne bonds did not invest the full amount of $291 54. If Luminais purchased the bonds lie, retained the money.
“ If Judge Lazarus purchased the bonds then he retained the money. There is no escape.”
It will be necessary to make an examination of the testimony, and the collateral facts, and transactions, in order to determine which witness has the stronger support— Sel or Marks.
Their testimony cannot be reconciled one with the other.
Tn speaking of his custody of the bonds he said, Miss Annie 11. Fisher knew of his having them in possession. On interrogation, she said Mr. Sel called her attention to a roll he had in his pocket, one evening about 7 o’clock. “ It was in March. I think about the 6tb— first part of March. * * * lie just lifted his coat to one side, and showed me the bonds; it was in the side pocket. * * * He simply said they were baby bonds.' * * *
“ He said that he had them for Judge Lazarus; that he had been sent to bug them, for Judge i/osarm."
This evidence was offered for the purpose of supporting Mr. Sel’s custody of the bonds; but it supports respondent’s theory, instead. It is in keeping with Mr. Bier’s books, as to the date of purchase. It accounts for Luminais’ reluctance to go, on Monday, the 6th, of March, for the bonds; and corroborates respondent’s statement to the effect that Luminais stated to him, on that occasion, that the bonds had been purchased of Bier, but that he had left them.
If Luminais had received the money of respondent, as stated by him and Marks, on the 3d of March, and Sel had been sent to purchase the bonds for respondent, and had been by him purchased on the. 6th of March and same were in his possession on that day, from what person could he have received the money other than Luminais ?
*197If the money had not been delivered to Luminais, as related by respondent and Marks, but had, on the contrary, been retained by the respondent, as stated by Sel, at what time and place did Sel obtain it from respondent?
If, in point of fact, Sel had purchased, at Luminais’ request, the bonds of Mr. Bier on the 6th of March, and had them in his possession on the evening of that day, was that not a good reason why Luminais should, on the morning of the 7th of March, have excused himself to respondent and requested that Sel be sent? Does not that condition of things harmonize with Mr. Upton’s and Miss Fisher’s statement; and yet be reconcilable with the, statement of respondent and Marks? I think it does.
If Sel was the guilty party, the reason is- apparent why he so frequently consulted his friend, Mr. TTpton, and appeared to have so much dread of the grand jury.
The same reason might be assigned why Sel so quickly understood the purport of an interview between Mr. Hart and Mr. Onorato, and influenced him to intervene therein so promptly.
On the contrary, relator’s counsel argue that, on the 10th of February, 1882, respondent granted an order on Onorato, administrator, for the payment of $147 26 taxes, when none were due, and therefrom argue his guilt. Respondent disavows all knowledge' of, or responsibility for this entry on the minutes. The books of the bank show the payment of that sum on February 11, 1882; but it is in possession of no voucher therefor, and why ’! Because the bank account with Onorato shows that the books of the hank were balanced on that date, and the vouchers for all payments made since last previous settlement— the 16th of September, .1881 — had been withdrawn, including the one for $147 26 paid that day. The books were balanced on the 16th of September, 1881, and all previous orders withdrawn, including the one for $396 85, that represents the payment of the State taxes, with which Luminais had been specially entrusted by the respondent.
During this period of time Mr. Luminais was evidently in possession of the pass-book, or bank-book, in which the Quiazzaro account was kept. This is evidenced in a variety of ways:
1st. By the report of Garidel.
2d. By the negative testimony of Ben Onorato to the effect that he did not 7ceej? one, and had not been furnished with one.
3d. By the testimony of Doran, Cazelar and Johnson, who saw Luminais with it.
4th. By the report of Luminais himself, entered upon the minutes *198in November, 1881, in which he carefully detailed the status of the account with the bank; and which he could not have known otherwise.
The Quiazzaro record appears to have been lost since December, 1881, when Mr. Sabóurin took a ‘nmvute inventory of its contents.
Upon an examination of it, when produced and offered in evidence, there were found the various reports made by Mr. G arid el, for the payment of taxes and costs and the attorney’s fees of Mr. Lemonnier; but there was no trace of the order for the payment of the $147 26. It had clisappecvred.
An examination of the entries on respondent’s court docket of February 10, 1882, show no entry of any proceedings talcen or order made in, the matter of the Qwaagcvro succession on that date.
An examination of that particular entry on the minutes, as of the 10th of February, 1882, discloses an Ul-disgtvised alteration, evidently made since the original execution, and the addition of the words, “ and still unpaid."
The fact was certainly well-known to Luminais, of all other persons, that all taxes had been paid, as his own report, entered on the minutes, will show. Is it not more likely that this fraud was perpetrated by him, and that those words were employed as a means of concealment, than that the respondent would have displayed such an order in the minutes, as a means of accomplishing a theft, when the minute clerk had himself paid those very taxes, and to the respondent's Imowledge.
In connection with this state of circumstances may be considered the statement made by Doran, Cazelar and Johnson, to the effect that Luminais on another occasion spent the money of this succession he had withdrawn from the bank, to pay taxes, and had to borrow money of Johnson to supply the deficit, a month or two previous.
While these circumstances do not demonstrate that Mr. Luminais was .guilty of the asportation of the $147 26, it creates a much stronger presumption against him than against respondent.
It certainly does not show that the respondent either received or converted same to his own use.
Luminais was discharged on the 17th of March, 1882, and subsequently died; and Mr. John LeMonier died of apoplexy on the--day of August, 1884.
There are some serious discrepancies in the testimony of Mr. Bel, which we will now review.
On cross-examination he was asked :
“ Q. Were you not sworn before the grand jury ?
‘•'A. Yes. sir.
*199“Q. Two grand juries'?
“A. Yes, sir.
“ Q. Did you state before either or both of those grand juries that you had those bonds in your possession 9 - “A. Yes.'
“ Q. From four to eight days 9
“A. Yes.
“ Q. Both of them 9
“A. To both of them.”
Mr. W.W. Summer, who was foreman of the grand j ury that assembled in the fall of 1886, states that when Mr. Sel came before the grand jury, he was apparently ill. “ He made his statement to me and I repeated .it word for ivord after him. His statement was: That on the 6th of March, he was again called by Judge Lazarus and told to go up to Mr. Bier’s and get some bonds, for the purchase of which Judge Lazarus had arranged. That he went up to Mr. Bier’s; was handed a package which, from its nature, he presumed contained bonds--in fact, he was certain of it; brought them back and handed them to Judge Lazarus, who was at the time in his . private office, and he went off about his business.”
He says that he is positive the question was asked Mr. Sel as to the day he delivered the bonds to Judge Lazarus. Mr. Sumner says, on cross-examination: “I recollect that in repeating the dates after him, fparticularly called Ms attention to the dates, and the fact of three days intervening between his being sent for the money and his being sent for the bonds, and, he loas ashed about those dates, and he was positive in regard to them.
“It was on the 6th of March that he delivered the bonds,
“ Q. It was on the 6th of March 9
“A. On the 6th of March that he delivered those bonds.
“ Q. That he delivered the bonds 9
“A. Yes, sir.
“Q. Are you swre of that fact; or was it not an inference9
“A. No, sir.
“ Q. From the fact that he said he had delivered the bonds, and you thought it was on the same■ day 9
“A. No, sir.
“ Q. You are sure of that0?
“A. Yes, sir; 1 am positive abo'ut that.
* * * * v * * * * -t
“ Q. Did he make the statement that Mr. Stern testified to that that was the last he had seen of the bonds9
*200“A. Yes, sir.”
Mr. Stern, the clerk of the grand jury and who heard Mr. Sel’s evidence, said :
“ Mr. Sel stated that he went to Mr. Henry Bier’s office; he got the bonds, and he showed us how they were wrapped up; in what shape they were, and stated that he handed them to Judge Lazarus in his office, and and that was the last he had seen of the bonds.,}
On cross-examination Mr. Sel was asked :
“ Q. Were you not called upon last summer before myself (E. II. Parrar), and Mr. Parker, of the Picayune, and four or five newspaper reporters, and asked to give a statement of your connection with this matter ?
ilA. Yes, sir.
“ Q. Did you, on that occasion, make any statement about the length . of time you had those bonds in your possession ?
‘‘ A. No, sir.
“ Q. Why did you conceal it on that occasion ’1
‘ ‘ A. Well, I didn’t think it was necessary.
“ Q. Were you not asked on that occasion to make a full aud complete statement of your connection with the Quiazzarro matter, from beginning to end 9
“ A. Yes, sir.
•i * t- * * ? * *- -t *
Q. Mr. Sel, did you not, on that occasion, specifically state, in the presence of all those gentlemen, that you brought those bonds down to court and delivered them to Judge Lazarus on the same day that the order was gimen you- to get them ?
“A. Yes; that is my impression.
“ Q. And that you did make that statement on that day '? ”
“ A. Yes; I made that statement.”
lie made like admissions in regard to similar statements he had made to Mr. Denegre, Mr. Miller and Mr. Dinkelspiel.
There can be no doubt of the fact that Marks’ evidence has been supported, and that of Sel seriously impaired by the evidence quoted.
The charge against the respondent of having embezzled these funds is not made out.
YII.
Having disposed of all the charges which, in our opinion, involved either crime or misdemeanor, we will now discuss the remaining charges which may be considered as following under the denomination *201of “ gross misconduct,” that is, culpable, offensive misconduct — equivalent to a quasi criminal act.
R. C. C. 8556, No. 13 — Fault: “ There are three degrees of faults : the gross, the slight, and the very slight fault.
The gross fault is that which proceeds from inexcusable negligence; il ■is considered as nearly equal to fraud, etc.
Beach on Contributory Negligence says :
“What is termed gross negligence the better authorities now call wilful negligence or wilful wrong-doing.” P. 102.
The same author says: “ By negligence is meant ordinary negligence, the significance of which is reasonably well fixed. By gross negligence is meant extraordinary negligence — that-which is mere ordinary negligence in tho superlative degree.”
Unlike negligence, “misconduct” implies an act of the will, in the performance of an unlawful or wrongful act; and “gross misconduct” is a culpable, wilful, oppressive act, possessing a quasi criminal character.
The difference between “ gross negligence ” and “gross misconduct,” is distinctly drawn in Milwaukee R. R. Co. vs. Ames, 91 N. S., 495.
“But the want of observance of the care, whether called gross or ordinary negligence, did not authorize the jury to visit the company with' damages beyond the limit of compensation for the injury -actually inflicted.
“To do this there must have been some wilful misconduct, or the entire want of care, which would raise the presumption of a conscious indifference to consequences.”
Judge Pickering was convicted on impeachment for drunkenness and profanity while on the bench of Ms court.
On the trial of Mr. Justice Chase, Manager Buchanan said: “ I admit that if the charge against a judge be merely an illegal decision, or a question of propriety in a civil cause, his error ought to be gross cmd palpable, indeed, to justify the inference of a criminal intention, and to convict upon an impeachment,” citing the case of Judge Pickering.
Mr. Blake, in discussing Judge Prescott’s case defines misconduct th us :
“ To misconduct is to misbehave ; to misbehave is to misdemean ; to misdeinean is to be guilty of a misdemeanor — nothing more, nothing-less. The term is technical, signifying a crime; hence, it follows, as a conclusion from these premises that misconduct and misbehavior, in the legal interpretation, cannot be anything else.” Johnson’s Trial, Vol. 2, p 24.
*202All of tlie various other charges ■ against the respondent fall under this resumé of authority and precedent.
The statement of them is quite sufficient, under the authorities cited, to defeat them, except, possibly, the cases of Martin vs. Aldige, and Hill vs. Chicago R. R. Co., which cannot be maintained under the evidence in the record; and relator admitted in argument that “the charges in reference to the Hill, Walshe & Woods cases would not have been sufficient to remove the respondent.”
The charges have not been made out, and the demands of the relator, in my opinion, should be rejected.
I therefore dissent from the opinion of the majority of the court.