(dissenting). Upon two grounds, both of which are sufficiently developed in the majority opinion, I rest my dissent.
The case of State v. Zeller, 54 Vroom 666, does not bring the case at bar within the doctrine of stare decisis, so as to *233command my assent, as I understand the application of the principle.
In that case the sheriff was accorded a trial and was found to be incapacitated. In this case he was not tried and incapacitated by a judgment, and the elisors were appointed without recourse to the coroners, or after any judgment disqualifying the coroners. This differentiating fact suggests the inquiry whether such a judicial prerogative is circumscribed by any limitations. Whether the inalienable guarantees which were supposed to be fundamental in English law, and which were presumed to hedge about the liberty of the citizen with what magna charta and the bill of rights denominated “the law of the land” lose their effectiveness in the presence of arguments ab inconvenimii addressed to the court in behalf of ihe state.
The argument of “the law of the land,” says an eminent authority, “was intended as a guaranty against arbitrary proceedings on the part of the king; the enforcement of execution without any judgment, or after a mere pretext of judgment.” Big. Hist. Prac. 155; 2 Hale P. C. 155.
All that we have here is the suggestion of the prosecuting officer, an ex parle affidavit, and a judgment thereon that incapacitated the sheriff, discarded the coroners, and brought forth a grand and petit jury, at the hands of a commission in nowise responsible to the people, as were the sheriff and coroners who were thus superseded.
In the light of historical facts the transition of this royal prerogative to the Supreme Bench can be justified only upon the theory that the fundamental maxim upon which it rested has also been transposed to judex non potest peccare. I am not prepared to concede the correctness or even the expediency of a doctrine fraught with such dangerous tendencies in an age when the very pillars of the constitution are not immune to unreasoning attack.
The following eases throw light upon the nature of the right of which defendant was deprived and make it manifest that what he was entitled to receive was a trial according to the law of the land, and that a hearing accorded to him upon *234any other theory or basis is not a trial recognized by the law. In Shepherd v. State, 89 Miss. 147, the Supreme Court says: “The action of the judge was a manifest violation of the statute in regard to the manner of drawing the grand jury, and if his action can be justified a grand jury may be selected in any manner that a judge may chose, and all the law upon the subject of juries be swept aside. There is no law authorizing the judge to select the grand jury in the manner that he did, but there is a law directing the selection of the grand jury in a different way. If he can change the method in one way he can change it for all and the effect would be to break down all the law on the subject,” citing Stokes v. State, 24 Id. 624.
In Finley v. State, 61 Ala. 207, the Supreme Court of Alabama declares that “the exercise of such a power by the court would be in violation of the spirit of all our legislation and would convert the grand jury from a distinct independent body drawn and summoned by officers specially charged with that duty into a mere dependency of the 'court chosen by its absolute will.” In both of these cases the judgments of conviction obtained under such circumstances were reversed and the ratio decidendi was that the defendant had not been afforded a trial according to law, which in legal effect was that he received no trial at all, which question was not involved in State v. Zeller as I understand the issue determined in that case.
The defendant was convicted under a statute (Comp. Stat., p. 1755) which was intended to prevent a public official, charged with the execution of a public trust, from using the power committed to him for his personal purposes. The language of the act is that if he be “unlawfully interested” .or “directly concerned” in any contract or agreement, he becomes guilty upon conviction of a misdemeanor.
To show that the defendant was “unlawfully interested” and “directly concerned” in a contract which as president of a public .board he did not vote for, and which was awarded to one Lockwood, and subsequently assigned to the firm of Lockwood & Cherry, the state proved that the defendant was *235a stockholder and officer in the United Paving Company, of which Lockwood was superintendent and Cherry was president; that Cherry used the credit and stock in trade of the paving company to further the interests and perform the contract of Lockwood & Cherry. There was no substantive proof that the defendant was a party to or in any way concerned or interested in the work of Lockwood & Cherry.
The inference was permissible, although not necessary, that the paving company was interested and concerned in the firm’s contract; but excepting upon the theory that the defendant was the alter ago of the paving company, no inference could be reasonably drawn that he was interested or concerned in the firm’s contract with the board. One of the most convincing facts in the case that he was not interested and not concerned in the. contract, was that he did not vote for it, but refused to vote.
The practical danger inherent in an indictment of that nature, is that the experienced, successful and capable man of affairs, whose service should be sought by the public as a guarantee of intelligent and honest public service, is liable to be estranged from contact with public life by the construction of a statute,, which if he be a freeholder in the city, or a stockholder in a bank, endangers his liberty, and casts a stigma upon his rectitude.
USTothing short of active participation at least, with a corrupt motive which must be inferred from proved facts, should warrant the condemnation of a public official under such circumstances as are presented here.
There are cases like Stroud v. Consumers Water Co., 27 Vroom 423, and Taylor v. Jersey City, 5 Id. 390, where contracts have been invalidated by our courts upon certiorari because the evidence showed a personal interest or concern upon the part of the same member of the municipal body, voting for them. These cases are useful as indicating not only a common law, but a legislative policy in dealing with public questions of this nature; but we are not referred to any authority which contains the record of a criminal prosecution of the officials upon whose action those cases were determined. *236In that respect this case stands alone as the only specific construction from the standpoint of criminal jurisprudence, put upon a statute which for nearly forty years has maintained its place in substantially its present form upon the books, unenforced as a criminal prohibition.
If defendant’s motive was profit to be inferred from circumstances, the proof shows that the firm was a large loser by the contract. If his intent be worth considering it is proved that he failed to vote. Only upon the inference that the firm of Lockwood & Cherry was acting for the paving company, and that the latter company was -represented in some manner by the defendant, by reason of his stockholdings, can the verdict be logically supported, under the provisions of this statute; for in no manner was it established that the paving company eo nomine, by corporate action or otherwise, was committed to the project .s.o that it might be said that it was “unlawfully interested” or “directly concerned” in the contract.
It becomes manifest, therefore, that to attempt to support the verdict upon inferences that comport to say the least as logically with innocence as they do with guilt, is in essence tantamount to depriving the defendant of the benefit of a reasonable doubt, for to doubt his guilt under such circumstances is in legal effect to declare his innocence. Dunbar v. United States, 150 U. S. 185.
The statute being penal should be strictly construed; and its application to men holding public office should be reasonable in character, otherwise its very -existence upon the books, under the construction we now give to it, instead of serving to invite desirable men of affairs into the arena of public life, will serve only to repel them. This practical consideration is important only upon the question of the reasonable construction of the statute, and to my mind, it evinces beyond peradventure, that an interpretation involving such inimical consequences to the welfare of the body politic must have been beyond legislative contemplation. For these reasons the judgment should be reversed and a venire de novo awarded.
*237For affirmance — The Chancellor, Swayze, Trenchard, Parker, Yredenburgh, Congdon, Terhune, Heppbn-HEI3IER, JJ. 8.
For reversal — Minttjrn, J. 1.