The opinion of the court was delivered by
Horton, C. J.:Seward county was organized in 1886. In the fall of 1886 T. A. Scates, W. W. Kimball and E. A. Watson were elected county commissioners, and Oliver Leisure county clerk. The term of each began in January, 1887, and it was during the spring and summer of 1887 that the matters complained of in these proceedings occurred. The object of the action is to remove Scates from office, for alleged misconduct under § 180 of chapter 25, Comp. Laws of 1885, p. 300, which reads:
“If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.”
*334The petition alleges that the acts complained of were done “corruptly, and with the intent' to defraud the tax-payers of Seward county,” This case has been under advisement for several months. All the members of the court have carefully examined and fully considered the testimony. The differences among the members of the court as to the judgment which should be rendered, have been the cause of the delay in filing this opinion.
In regard to the claim presented against Seward county in the name of T. N. Sedgwick, for $1,500 as attorney-fees and $488 for traveling expenses, the majority of the court think that the testimony does not show that the charge is illegal.
The alleged retention or conversion of $1,513 of the claim or county warrants issued to pay the’ same by Scates, rests almost wholly upon the testimony of A. B. Carr. The majority of the court do not believe him worthy of credit, and therefore are unwilling to accept his testimony as truthful. If his evidence is rejected, or if it is held that it is sufficiently denied by the evidence of the other witnesses, there is not any testimony showing or tending to show that Scates acted dishonestly or corruptly in allowing the Sedgwick claim, or that he in any way realized any personal benefit or advantage therefrom. The writer of this thinks from the testimony that there was a corrupt agreement between Carr, Scates and G. S. Stein which resulted in the presentation of the Sedgwick claim for $1,988, and that only $475 of this went to Sedgwick, the balance being for the benefit of Scates, Carr, and Stein.
county commisliable to, charge of corruptton. Concerning the other charges alleged in the petition, the majority of the court are of the opinion that while many of the allowances made by Scates as a member of the board of county commissioners of Seward .. 1 n . county were extravagant, and several of them not strictly legal, yet that the testimony does not disclose any corrupt or intentional wrong upon his part in voting to allow these claims, or in issuing county warrants therefor. The majority of the court do not think that the testimony shows or tends to show that Scates obtained any personal ad*335vantage or benefit from the allowance of any of these claims. In support of the good faith of Scates, it is also urged by the majority of the court, that all of these claims were allowed upon the advice of able and competent attorneys. With these conclusions, however, I do not concur. As the majority of the court do not find that any of the acts complained of were done by Scates corruptly, or with the intent to defraud the tax-payers of Seward county, judgment will be rendered in his favor and against the plaintiff.
It seems unnecessary to recite or comment upon the testimony presented upon the hearing. It is very voluminous and contradictory. If the important parts were incorporated in the opinion it would cover many pages.
The defendant will recover his costs.