Minkler v. State ex rel. Smithers

• Citation: 15 N.W. 330,14 Neb. 181
• Parties: GEORGE W. MINKLER, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, EX REL. PERCY SMITHERS, DEFENDANT IN ERROR
• Decision Date: 20 March 1883
• Court: Nebraska Supreme Court

15 N.W. 330

14 Neb. 181

GEORGE W. MINKLER, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, EX REL. PERCY SMITHERS, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 20, 1883

ERROR to the district court for Gage county. Tried below before WEAVER, J.

AFFIRMED.

Brown & Ryan Brothers and Bush & Rickards, for plaintiff in error cited: State v. Preston, 34 Wis. 675. United States v. Railroad Cars, 1 Abb., 196. Kendall v Stokes, 3 Howard (U.S.), 87. Ramsey v. Riley, 13 Ohio 157. Stewart v. Southard, 17 Ohio 402.

Pemberton & Forbes and A. H. Babcock, for defendant in error, cited Heaton v. Hodges, 30 Am. Dec., 737. Diehl v. Zanger, 39 Mich. 604. 2 Whart. Crim. Law, sec. 1245. Wallace v. New York, 18 How. Pr. 169.

OPINION

COBB, J.

A complaint was made to the board of county commissioners against the plaintiff in error for willful mal-administration in his office of county surveyor. He was tried and found guilty of this charge, and removed from office. The cause was removed to the district court on error, when the finding and judgment of the board of county commissioners were affirmed, and is now before this court on error to the district court. The only substantial error assigned is, that the action of the board of county commissioners is not sustained by the evidence in the case.

Section 1 of article 2 of chapter 18, Compiled Statutes, provides that: "All county officers, including justices of the peace, may be charged, tried, and removed from office for official misdemeanors, in the manner and for the causes following: First. For habitual or willful neglect of duty. Second. For gross partiality. Third. For oppression. Fourth. For extortion. Fifth. For corruption. Sixth. For willful mal-administration in office. Seventh. For conviction of a felony. Eighth. For habitual drunkenness."

The charge in this case was made under the sixth clause of the above section, and the mal-administration in office charged was that of having, "in his capacity of county surveyor, and while acting as such," taken up, "removed, and carried away all the government land marks and the stones set up to mark the section, half-section, and quarter-section corners," of certain sections of land therein described, in his county.

There is no material conflict in the testimony. Nearly or quite all of the witnesses, including the plaintiff in error himself, who was sworn as a witness on his own behalf, testified in substance that he had removed the government section and quarter-section corner-stones, knowing them to be such, of the sections described in the complaint; and that he did it under pretense of rectifying the government survey. It is admitted by counsel that this was done without authority, but they contend that as it was done "under claim of power to do so," that it was not willful mal-administration in office. Counsel also claim that the power on the part of the county surveyor to remove the government corner-stones was fortified by the written opinion of respectable attorneys, and that "on each occasion the change was made to place the corners where such corners should be under the plat and field notes." But neither such written opinion of attorneys, nor the plat or field notes of the government survey, were offered in evidence, according to the bill of exceptions. Counsel draw a distinction between the legal meaning of the prefixes mal and mis, and in effect claims, that while the county surveyor was guilty of mis-administration, he was not guilty of mal-administration. But whatever there may be in the original meaning of the two words, we find them used in the law books almost or quite interchangeably, indicating a regard for euphony of sound rather than a distinction in meaning.

Thus, in Bouvier's Law Dictionary, under the word mal-practice, in Latin mala-praxis, we find the several definitions of willful mal-practice, negligent mal-practice, and ignorant mal-practice. Certainly, the prefix mal is not used in the two last cases to signify intentional wrong.

In the case of Coite v. Lynes, 33 Conn. 109, the court use the following language: "For a misfeasance strictly is a default in not doing a lawful act, in a proper manner, omitting to do it as it should be done--while a malfeasance is the doing of an act wholly wrongful and unlawful, and non-feasance is an omission to perform a required duty at all, or total neglect of duty."

The phrase mal-administration is not found in any of the law dictionaries, but we cannot be far wrong in giving it the signification of wrong administration, and we believe that to be the sense in which the legislature used it in framing the section under consideration. Certainly, the prefix mal could not have been therein used in the sense of corruption or oppression, as these are both expressly provided for by other clauses of the same section.

The word willful or willfully is variously construed. Abbott, in his law dictionary, says that it is a term used in averring or describing a act, particularly one charged as a crime, to show that it was done with free activity of the perpetrator's will. The author also quotes from the opinion in the case of United States v Three Railroad Cars, 1 Abb. 196, 28 F. Cas. 144, a case cited by plaintiff in error, as...