(dissenting) : I dissent from the judgment of the majority of the court. I dissent for two reasons: (1) Because it does not appear from the report of the legislative committee to the governor that the contract taken by Regent Limbocker to superintend the college dining-hall and the work performed by him under such contract was for a “profit” over and above the amount to which he was entitled as compensation for his services as a regent; (2) because the committee did not state in their report, or find any facts equivalent to a statement, that the taking of the contract, the doing of the work or the acceptance of the compensation for it, even if in the form of a profit beyond the compensation allowed by law, were done with a wrongful intent; and, likewise, because the committee did not state or report any facts equivalent to a statement that the records of the. meetings of the board of regents were incorrectly kept with any wrong intent. The statute for the violation of which Limbocker was removed from office is quoted in the opinion of my associates. It is an act of 1867 (ch. 132), and is entitled “An act to restrain state and county officers from speculating in their offices.” It *280will be observed that the act is directed against the speculation by officers in their offices, and it prohibits officers from talcing contracts or doing work in or about their offices for profit, or from having such work performed for them for their profit by others. Of course, all officers are allowed profits from the work of the offices filled by them. These profits, however, are in the form of fees or salaries, ordinarily, fixed and defined in amount. The statute does not mean to prohibit the taking of contracts or the doing of work by officers in and about their offices by which their legal compensation may be earned, but it means to prohibit the taking of contracts or the doing of work by them over and beyond the required duties of their offices, and for a compensation which the law does not allow to them because the work performed does not pertain legitimately to the duties of their offices.
The compensation of the board of regents of the state agricultural college is not fixed in the form of fees and salaries, as in the case of most of the public officers of the state. It is provided for by annual appropriations, which are made to cover “salary, per diem, mileage and expenses,” and for the two fiscal years beginning July 1, 1897, and ending June 30, 1899, was fixed at fourteen hundred dollars per annum. (Laws 1897, ch. 133.) This appropriation act uses the words “salary and per diem,” but neither it nor any other act declares what such salary or such per diem shall be. The words are therefore used merely in the sense of “compensation.” The members of the board of regents are not continually engaged in the performance of the duties of their positions, but they perform them as the exigencies of the institution require, and at such times, covering such periods of days, as they may judge necesspn-y. They *281reside at the site of the institution or at distances more or less remote from it. Consequently, in attending the sessions, the different members spend varying periods of time and incur varying amounts of expense. The fund annually appropriated is therefore equitably distributed by them among themselves to cover the differing periods of time employed and' varying amounts of expense incurred by them. This distribution of the fund is made by themselves, and what particular portion of the fund each particular member may receive is a matter of concern to no one but themselves and is unknown to anyone but themselves. So long as they keep within the limits of the appropriation, and so long as they do not devote any portion of it to a purpose forbidden by law, their distribution of it among themselves is a matter of absolute indifference to others.
Furthermore, it should be stated that the amount to which each member becomes entitled is not drawn directly by him from the state treasury, but the aggregate amount due all the members is drawn for them by the treasurer of the college upon his own voucher and is distributed by him to his fellow members. Such being the case, it is absolutely impossible to tell from the report of the legislative committee to the governor whether the sum of fifteen dollars per month, for which Regent Limbocker contracted to serve as purchasing agent of the college dining-hall, and which the treasurer of the college paid him, was paid as “salary” or “per diem” to which as regent he was entitled, or whether it was paid him as a monthly compensation over and above his usual salary or per diem. In either of these cases it would be a legitimate payment, provided it and all other payments to all the regents on account of salary, per diem, *282mileage and expenses did not exceed the annual appropriation of |1400. It is not found by the committee that such appropriation was in excess of the anno 1 appropriation for “salary, per diem, mileage and expenses.” It is not found by the committee that it was paid out of another fund than the fund appropriated for such purposes. It is simply found that a payment oí¡ fifteen dollars per month was made for the services stated. It cannot be that a mere finding that an official drew money from the public treasury is a finding that he drew it illegally, when there are two or more funds out of which it may have been drawn and from one of which it was legal to draw it. The report of the committee amounts to nothing more than a finding that the money was drawn, but, for aught the report or findings show, it may have been rightfully drawn out of the annual appropriation for the regents’ compensation. ' The charge .was that the service performed by Limbocker “was not within the act making provision for the payment of the regents,” and that the sum paid therefor “had been drawn unlawfully and wrongfully,” but there is not a word in the findings, or the report of the committee, which, in that respect, is responsive to the allegations of the complaint.
But irrespective af the total failure of the report to convict Limbocker of having performed work pertaining to the duties of his office “for profit,” over and beyond that to which he was entitled out of the annual appropriation of $1400, but assuming, as a concession for argument’s sake, that it does show a performance of work for such profit, it is so lacking in another respect that no order of removal can be rightfully predicated upon it. It totally fails to state that any of the acts charged against either Limbocker *283or Hoffman were performed with a wrongful intent. The statute upon which the proceedings for removal are based is chapter 239, Laws of 1889 (Gen, Stat. 1897, ch. 6, §33; Gen. Stat. 1899, §6362) :
“Whenever charges shall be made by any person or 'persons, and circulated within the state or presented by such person or persons in writing to the governor, at any time when the legislature is not in session, and said charges shall be deemed worthy of credit or emanating from a reliable and trustworthy source, whereby the management or administration of the affairs of any charitable, educational or penal institution, or the official conduct of any officer in charge of or otherwise connected with any of said institutions, shall1 be called into question upon the grounds of corruption, venality, inefficiency, misconduct, immorality, or inattention to duties, an investigation shall be had as provided for in the second section of this act. Notice shall be given in writing to the official in charge of the institution, and also to the officer or each of the officers against whom complaint or charges have been made or preferred; which said notice shall contain the substance of the matter charged, and may be served upon the parties by any person selected by the governor for that purpose. Immediately following the service of such notice the governor shall relieve from duty the official against whom the charges are pending, which suspension shall continue during the period covered by the investigation.5 5
By this statute the essential elements of the charge, and consequently of the proof to sustain it, are “ corruption, venality, inefficiency, misconduct, immorality, or inattention to duties.5 5 The general rule applicable to all criminal prosecutions, both as to allegation and proof, is that a wrongful intent must be charged. (The State v. Eastman, 60 Kan. 557, 57 Pac. 109.) As to acts mala prohibita, that is, not bad in themselves btit only bad because forbidden, it is not necessary to
*284% allege or prove a wrongful intent, and as to such class of cases The State v. Bush, 45 Kan. 188, 25 Pac. 114, is applicable, and as to such cases the intent to commit the interdicted acts, irrespective of any wanton purpose to do wrong, is the criminal inte,nt. However, we do not have to do in this case with a statute providing for the punishment of an offense malum prohibitum. The statute above quoted, so far as concerns the charges made against fyimbocker and Hoffman and said to have been proved against them, makes a wrongful intent an essential ingredient of the acts charged. Those acts are, in one particular, the taking of a contract and the drawing of money for a profit aside from that allowed by law as compensation for the performance of the duties of an office, and, in another particular, the falsification of official records. Within which one of the several specified general reasons for the removal of these officers did these acts of these accused persons fall? If under the head of “corruption,” then certainly a corrupt intent must have existed, because corruption is the perversion or deterioration of moral principles. It is depravity, the loss of purity or integrity. If the acts charged constitute “venality,” then also a wrong intent must have existed, because venality is the state or character of being basely or improperly influenced by sordid money considerations. The acts charged did not constitute “immorality,” because immorality is vice, wickedness, lack of purity of personal character or conduct. As generally used, and probably as used in the statute quoted, it means licentiousness of sexual conduct. The acts charged did not constitute “inefficiency,” because inefficiency in a public officer is the lack of power or capacity properly to discharge the duties of his position. Nor can the acts charged *285be brought under the head of “inattention to duty.” Inattention does not mean lack of capacity to perform a thing ; it means neglect of it — lack of effort to do it.
The only remaining ground covering the charges against the accused is misconduct. No reasonable person will contend that any of these charges can be included under the head of- “ corruption, venality, immorality, inefficiency, or inattention to duties.” If included at all within the statute, it is within the term “misconduct.” Misconduct is bad conduct. That is the shortest and best definition that can be given to the word either in its legal or its popular sense. It implies culpability — turpitude in a minor degree, at least. It'is a term applied to actions knowingly performed and wrongful in their nature but not necessarily of serious consequence. It, however, imports knowledge and wrongful intent. It is not a word descriptive of a character of act performed, but of a quality of mind possessed. No act, however harmful in its consequences, can be said to be misconduct unless it be performed with a motive more or less bad. The term is not a fit one to describe an act malum prohibitum, the wrong intent in which is presumed from the mere doing of the act. An act malum prohibitum is not inherently bad or vicious, but only bad or vicious by fiction of law. In the light of this universally accepted and obviQus meaning, of the word “misconduct,” the acts charged against Limbocker and Hoffman were innocent unless performed by them with a wrongful intent. All the authorities bearing on the subject support the view here taken.
Reference is made in the majority opinion to State v. Hastings, 37 Neb. 96, 55 N. W. 774, and it is said not to be applicable to this case because the proceeding there involved was an impeachment author*286ized by the constitution to be tried before the supreme court. The only adverse judgment that could have been pronounced in that case was a judgment of removal from office; so likewise the only adverse judgment that could be pronounced in this case was removal from office. The only reason for removal given in that case was the commission of a “ misdemeanor in office" ; so likewise the only reason that could be given, or has been given, in this case was “ misconduct " in office. I fail to see any substantial difference between “misdemeanor in office" and “misconduct" in office, and I fail to see any difference affecting the moral quality of the acts charged in the fact that the removal in one case was by formal proceedings in what is called “impeachment," before a court already constituted generally for the trial of such cases, and a removal in the other by a judicial tribunal specially organized for the trial of that particular case. The legislative committee in this case was a judicial tribunal. It entertained a complaint, it heard and considered evidence, it found and reported facts. In every essential particular it was a judicial tribunal, and in every essential particular its judgment was one in impeachment of a public officer. The mere fact that in one case the lofty, high-sounding term “impeachment" was used, and in the other it is not, nowise affects the essential» character of the proceedings or the judgment pronounced. The Nebraska case is not thought applicable to the one under consideration because, as said in that case, the prosecution was criminal in its nature. So it was in that case and so it is in this one. It is criminal in the sense that the acts charged and to be proved were criminal offenses. Neither case was criminal in the sense that the ordinary judgment of conviction and *287punishment could be pronounced. The Nebraska court, however, held it to be criminal only in the sense that the quantum of proof necessary to conviction should be produced by the state.
It may be admitted that under the previous decisions of this court, cited by the majority in their opinion, the prosecution before a legislative committee of a case for the removal of a public officer is not a criminal prosecution in the sense that guilt must be shown beyond a reasonable doubt, or in the sense of a compliance with the strict rules of criminal procedure upon the trial; but that is not to say, by any means, that the elements of the offense charged need not be proved by some degree of evidence. It may be that the element of wrongful intent need only be established by the greater weight of evidence, not to the exclusion of all reasonable doubt; but to say that such element of wrongful intent need not be proved at all is to fly in the face of all fair-mindedness and common sense. The case of State v. Hastings, supra, is directly in point in its application to this one. It was there ruled:
“But where such act (the misdemeanor charged) results from a mere error of judgment or omission of duty without the element of fraud, or where the alleged negligence is attributable to a misconception of duty rather than a wilful disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the state.”
That, in my judgment, is the correct Tule of law, and it should have been accepted as such by the legislative committee and by the governor. In the case of Triplett v. Munter, 50 Cal. 644, a justice of the peace was charged with the statutory offense of “ charging and collecting illegal fees” and with the neglect or refusal “ to perform the official duties of his office.” *288The penalty consequent upon conviction was removal and the payment of a fine. The statute did not make a wrongful intent an ingredient of the offense. The court, however, held that such intent should have been proved, and it declared that in order to a judgment of conviction “ the court must find that such fees were knowingly, wilfully, or corruptly taken.”
Returning to the subject of the definition of the word “ misconduct,” the case of Turnbull agt. Martin, 37 How. Pr. 20, is instructive. A statute of New York provided that the report of arbitrators should be set aside if “ the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in ■ refusing to hear any evidence, pertinent and material to the controversy, or any other misbehavior, by which the rights of any party shall have been prejudiced.” (3 Rev. Stats. N. Y., 1875, 844.) The arbitrators in a certain case violated several of the above provisions, but the court ruled that ‘ ‘ the statute by the terms ‘ misconduct ’ and ‘ misbehavior ’ contemplates acts evincing unfairness or contrary to all the principles of a just proceeding,” and that their award would not be disturbed, “without some evidence of fraud, corruption, partiality, or unfairness.”
The principle of non-liability of public officers to removal for illegal acts honestly performed was decided by this court in The State, ex rel., v. Scates, 43 Kan. 330, 23 Pac. 479. In that case a county commissioner was charged with various official acts illegally and corruptly performed, and quo warranto was instituted to remove him from office because thereof. Among the facts charged was the allowance of illegal claims against the county. The court ruled :
“ Where a board of county commissioners, upon the *289advice of able and competent attorneys at law, allows certain claims which, are not strictly legal charges against the county, its official action in so doing will not render the commissioners liable to the charge of corruption, or forfeiture of office, if the allowances were honestly made and the board acted merely upon a mistake or error of law as to the liability of the county.”
This case is precisely in point. The fact that the action of the board of commissioners was upon the advice of attorneys gives no countenance to the idea that if they had not received it the law would have been ruled differently. The advice of attorneys is no shield against the consequences of a corrupt act. The bona fide taking of it, however, is evidence of lack of corruption. If evidence showing lack of bad motive in a public official charged with an illegal act may be shown by him in defense, it implies, of course, that the illegal act plus the bad motive must exist to justify his condemnation.
So far as the case against Limbocker under the first charge is concerned, the statute is difficult to understand and construe. Analyzing it as well as can be done, it seems to prohibit officers from taking contracts for their own profit for the doing of work in and about the offices holden by them, or performing or having performed for their own profit any work in and about such offices, or in or about any work over which they have in whole or in part the supervision, direction, or control. The interdicted acts, therefore, are the doing of work for profit and the taking of contracts for profit in and about public offices. Work and contracting to work are one element of the offense and profit is another. What is meant by “ work ” ? The statute thus far examined seems to give to -that word a broad and general meaning, comprehending probably any and all kinds of labor, manual, mental, or *290clerical, but the succeeding clause seems to give it a more limited signification. After prohibiting the doing of work and contracting for work, it further reads, “ and from furnishing any material used in any such work,” implying, therefore, that the work prohibited, or prohibited to be contracted for, is that which requires materials of some kind for its prosecution, such as buildings and the like. I do not say that the statute bears this interpretation. I only say that its meaning is obscure and difficult to determine, and a layman might very innocently violate it when tested by the rules of statutory construction.
The other finding, to wit, that Limbock'er and Hoffman falsified the records of the sessions of the board by reciting that on July 2 “ the board met,” when in fact a quorum was not present, is of a piece with the other one. It appears that at a subsequent meeting the action of those who were present on July 2 was ratified by a legal quorum of the board, evidencing thereby that what had been done on the day mentioned had in it no element of wrong or unfairness. Admit that no quorum was present on July 2, but that business of importance was transacted by less than a quorum in the name of the board as an entirety. It may have been so done with a previous understanding with absent members that it should be done and would be thereafter ratified, as actually was the case. There is no statute prohibiting an action by a minority of a board of regents in the name of the whole board if with the understanding by the majority that it may be so done. The exigencies of the college may have compelled the doing of the work on July 2, and it may have been impossible for a quorum of the regents to attend on that day. That the action of July 2 was taken without any wrongful intent is manifest from the fact that while the same number of regents *291attended on the succeeding 3d, 5th and 6th days of July they did not assume to transact any business. This they might have done as well as on the 2d and made their records show the presence of a quorum, if they had designed to do anything wrong. There is not a board of regents in this state, or any other state— there is not a body corporate in the land — that does not transact much of its important business through subcommittees and minorities of its membership, and does not likewise do it in the name of the majority, through previous express agreement or an understanding growing out of constant and oftentimes necessary practice. I insist that, in addition to the fact that a minority of the regents assumed to make their records speak as the action of the majority, it should have been found that the erroneous recital was made with the wrongful intent to defraud the absent majority. This was not found.
These charges are trivial. They were made and prosecuted, as everybody knows, for the purpose of ousting the officers named and thereby gaining political control of one of the educational institutions of the state. They were not made and prosecuted for the purpose of advancing the interests of the institution, but were conceived and prosecuted in that spirit of malignant partizanship which is the curse of American politics, and they do but provoke a retaliatory assault when the trembling balance of political majorities in this state shall go the other way. They were made and prosecuted to subserve the ends of office for politicians and not of education for the youth. Similar charges and proceedings by the office-seekers of my party shall never have countenance by me, nor will I be deterred from denouncing those made and conducted by political opponents as causeless, wicked, and despicable.