
    The State of Ohio v. Bair et al.
    
      County commissioner — Without wilfulness or corrupt motive— But through ignorance — Disregards provisions of statute— Regulating his duties — Not guilty of misconduct — Duties of public officials — Section 6915, Revised Statutes.
    
    A county commissioner who, without wilfulness or a corrupt motive, hut through ignorance, disregards the provisions of a statute regulating the exercise of his official duties, is not thereby guilty of misconduct in office within the meaning of section 6915 of the Revised Statutes which prescribes a fine and the forfeiture of office for such misconduct.
    (No. 9263
    Decided January 31, 1905.)
    Exceptions to rulings of the Court of Common Pleas of Sandusky county.
    Numerous questions raised in the record and in the brief presented on behalf of the state have been considered, but the only question upon which it is thought a report would be of value is presented by the following statement:
    Bair and Overmyer were commissioners of San-dusky county. They were indicted under section 6915 of the Bevised Statutes for misconduct in office. The question arises on the first count of the indictment whose substance is:
    
      ‘1 That said Winfield S. Bair and B. B. Overmyer, as such county commissioners of said Sandusky county, aforesaid, acting in their said official capacity, did on said eighteenth day of July, 1903, aforesaid, in Sandusky county and state of Ohio, then and there unlawfully, wilfully, knowingly, and corruptly enter into, make and sign a certain false, fraudulent, unlawful and illegal contract by and between the Bellefontaine Bridge & Iron Company and the county commissioners of Sandusky county* Ohio, they, the said Winfield S. Bair and B. B. Overmyer, then and there well knowing the same to he false, fraudulent, unlawful and illegal, at the time they so as aforesaid made, entered into and signed the same, which said contract aforesaid, was and is in the words and figures following, to-wit:
    (Here follows contract for a bridge over Muscalonge creek in said county.)
    “'’They, the aforesaid Winfield S. Bair and B. B. Overmyer, then and there well knowing said contract was fraudulent, unlawful and illegal in this, to-wit, that there was then and there no certificate of the auditor of the aforesaid county then and there on file, or issued from the' said auditor of the aforesaid county, certifying that the money required for the payment of such obligation so as aforesaid contracted was then and there in the treasury of said Sandusky county to' the credit of the fund from which it was to be drawn, in payment of the aforesaid contracted obligation, or had been levied and placed on the duplicate of Sandusky county, Ohio, or was in process of collection, and was not then and there appropriated to any other purpose and they the said Winfield S. Bair and B. B. Overmyer, then and there well knowing said contract to be false, fraudulent, unlawful and illegal, made and signed the same as aforesaid, on the aforesaid eighteenth day of July, 1903, in the aforesaid county and state, in the manner and form aforesaid, and then and there the said Winfield S. Bair and B. B. Overmyer knowingly, wilfully and corruptly and with intent to defraud said Sandusky county, Ohio, then and thereby violated the statutes of the state of Ohio, and then and thereby were guilty of misconduct in office as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio. ’ ’
    The defendants entered a plea of not guilty. Evidence having been offered by the state in support of the allegations of the indictment and by the defendants to show their good faith and their want of knowledge of any statute requiring such certificate of the auditor to be on file before the making of such contract, the court instructed the jury that “to constitute any acts or omissions of the defendants or either of them ‘misconduct in office’ within the meaning of this statute, such acts or omissions must have been wilful or corrupt.” To this instruction and to others of like import counsel for the state excepted. They also requested a number of instructions to the contrary which were refused and they excepted to the refusal. The following instruction so requested and refused is pertinent to the question so considered.
    “I charge you that ignorance of the law is no defense, if you find that the defendants were guilty of wilful or gross neglect in failing to familiarize themselves with the laws pertaining to their duties as such commissioners.”
    The jury returned a verdict of not guilty and the. case is brought here on a bill of exceptions with a view to determine the law for the government of future cases.
    
      Mr. H. C. DeRan, special counsel for the State.
    The main question in this case and the issue paramount in the trial was the proper construction of the intent and meaning of section 6915, Revised Statutes.
    
      The correct interpretation of the scope, meaning and intent of this law involves,—
    First: A correct definition and understanding of the phrase “any misconduct in office,” and, ■
    Second: What is a defense and what is an excuse for a failure to perform official duty according to law?
    Misconduct in office has been defined as “any unlawful behavior in relation to the duties of an office, wilful in its character.” 20 Am. & Eng. Ency. Law, ••801.
    The phrase misconduct in office is broad' enough to embrace any wilful malfeasance, misfeasance or nonfeasance in office. State v. Slover, 113 Mo., 208.
    As a general rule a public officer is liable criminally for malfeasance, misfeasance, or nonfeasance in his •office. /
    Every culpable neglect of. duty enjoined on such •officer, either by common law or by statute, is an indictable offense. 23 Am. & Eng. Ency. Law (2 ed.), • 382, and cases there cited.
    It is clear that when the law imposes on an individual a ministerial office, then not only is disobedience to the requirements of the law in respect to such office indictable, but an indictment lies for such wilful or negligent misconduct in such office as works injury to the public, or to an individual. Wharton’s Criminal Law (10 ed.), sec. 1568, and cases cited.
    It is perfectly well settled that the neglect, failure, ■or omission of a public officer to perform any duty while in office which by law he is required to perform, is a crime for which he may be indicted, convicted and punished. Every culpable neglect of duty enjoined on such officer, either by common law or by statute, is an indictable offense. Commonwealth v. Coyle, 40 Am. St. Rep., 708; State v. Buxton, Swan, 57; Robinson v. State, 2 Cold., 181; State v. Williams, 12 Ired., 172; State v. Startup, 39 N. J. Law, 423; State v. Kern, 51 N. J. Law, 259; Palmer v. St. Albans (Vil.), 6 Am. St. Rep., 130; Citizens' Ins. Co. v. Marsh, 41 Pa. St., 394.
    Misconduct is a violation of definite law, carelessness an abuse of discretion under an indefinite law. Misconduct is a forbidden act, carelessness a forbidden quality of an act and is necessarily indefinite. 20 Am. & Eng. Ency. Law, 20. Gross negligence in the discharge of a fiduciary duty is evidence of fraud which itself amounts to misbehavior. Commonwealth v. Rodes, 45 Ky. (6 B. Mon.), 171.
    An omission on the part of a public officer to comply with the provisions of the statute regulating' the discharge of the duties of his office may amount to-a misdemeanor for which he is liable to punishment, notwithstanding such provisions are, as respects the public, merely directory. Case v. Dean, 16 Mich., 12.
    Where a public officer entrusted with definite-powers to be exercised for the benefit of the community, abuses or fraudulently exceeds them, he is. punishable by indictment, though no injurious effects to any individual from his misconduct. State v. Glasgow, 1 Conf. Rep., 38; 2 Am. Dec., 629.
    Where a public law imposes a public duty, the omission to perform the duty is indictable. State v. Williams, 12 Ired., 172.
    A statute making the wilful omission, neglect, or refusal of an officer to discharge his duty a misdemeanor corrupt intent need not be shown. State v. Hatch, 116 N. C., 1003; 21 S. E. Rep., 430.
    
      Any failure or neglect of an officer to discharge a duty imposed by law upon him renders him guilty of a misdemeanor. State v. Baldwin, 39 Tex., 155.
    As to misconduct in office and what constitutes the offense. State v. Leach, 11 Am. Rep., 172; Colburn (v. Neufurth, 9 Dec. Re., 638; 16 W. L. B., 54.
    As to the interpretation of this statute in Ohio. Hatch v. Sheriff, 1 Circ. Dec., 421; 2 C. C. R., 163; Stahl v. State, 5 Circ. Dec., 29; 11 C. C. R., 23; Knight v. State, 54 Ohio St., 365; Patton v. State, 6 Ohio St., 468.
    None of these cases discuss or consider the meaning or scope of our present statute, section 6915, Revised Statutes. While the statute is an old one it has not been judicially considered. The definitions cited and authorities quoted are from states having statutes similar to our own and therefore are in a sense determinations of the precise questions involved in this action.
    It was over the question what constitutes a defense to the charge of misconduct in the violation of the law that the chief contention was waged in the trial of this case. Nearly all the requests for charge on both sides were directed to the issue “is ignorance of the law a defense?” Wharton’s Criminal Law,, sec. 84, and cases there cited; Wharton’s Criminal Law, sec. 1582, and cases there cited.
    Under particular statutes which are found in many of the states, it has been held criminal to let a contract on disadvantageous terms, without advertising for bids. 2 McClain’s Criminal Law, see. 905; State v. Kern, 51 N. J. Law, 259; Duty v. State, 9 Ind. App., 595.
    Habitual neglect to comply with the law by a public official is misconduct and a gross and persistent negligence in his official conduct instead of rebutting such presumption strengthens and supports it. Commonwealth v. Rodes, 45 Ky., 171; s. c. digested, 37 Am. Dig. (Cent. ed.), 2003.
    This is plainly -the rule in Ohio' also (Doll v. State, 45 Ohio St., 445), where it is held that the fact that the contract by reason of failure to comply with' the law, was void, does not excuse a recreant official.
    It has been held that to issue a warrant on a claim for an amount more than was due, or to vote to allow such a claim was misconduct. State v. Corning, 44 Kan., 442; State v. Spidle, 44 Kan., 439. Or to allow a. claim not due. State v. Crowley, 39 N. J. Law, 264. Again, “A public officer may not neglect a duty imposed by law.” 2 McClain’s Criminal Law, sec. 909, and cases cited.
    A clerk who failed to publish a report as required by law, has been held indictable for “misconduct.” Moose v. State, 49 Ark., 499.
    To constitute criminal misconduct on the part of an officer, there must be an intentional act, unless the. penalty be removal from office. In that case as the object is to rid the public of an incompetent officer intent may be immaterial. McClain’s Criminal Law, sec. 913, and numerous cases cited there; State v. Leach, 60 Me., 58.
    A ministerial officer is presumed to know the law. People v. Burns, 75 Cal., 627; People v. Brooks, 1 Denio, 457. He will not be protected against mistake of law, even by reliance on the opinion of the attorney general. Dodd v. State, 18 Ind., 56.
    Ignorance of the law is no defense. Therefore one who does a criminal act will not be excused by the fact that he had legal advice that the act would not. be criminal., 1 McClain’s Criminal Law, secs. 114 and 115.
    The general proposition that every one is presumed conclusively to know the law, and that ignorance or mistake of law, will not constitute a defense or excuse for an unlawful act, is recognized in civil as well as criminal jurisprudence. 1 McClain’s Criminal Law, sec. 132, and cases cited.
    Tbe justice knew wbat was asked of him and he knew what he refused. There was nothing like surprise, inadvertence or misapprehension on his part. He refused to administer the oath and he intended so to refuse. This was a wilful violation of duty for “every intentional act is necessarily a wilful one.” People v. Brooks, 1 Denio, 457; s. c. 43 Am. Dec., 705; 4 Blackstone’s Commentaries, 227.
    Good faith of officer charged with misconduct, is no defense. Clark v. Miller, 47 Barb., 41; s. c. 54 N. Y., 534; Gardner v. People, 3 Hun, 222; s. c. 62 N. Y., 299; Cowley v. People, 8 Abb. N. C., 37; s. c. 21 Hun, 429; Morris v. People, 3 Denio, 402.
    In the light of these authorities and under our statute, section 6915, Revised Statutes, can it be said that the trial court charged the jury the law in this case? Every proposition requested by the state to be charged to the jury in advance of the argument is the language of the law as expressed by the text writers on the subject and as declared by the highest courts in the various states. They were all refused by the court and the refusal, was error prejudicial to the state.
    The defendants requested and the court gave nine charges to the jury in advance of the arguments,, every one of which hammered home the erroneous and iniquitous doctrine that ignorance of the law and mistake of the facts are a defense.
    Then in the general charge of the court appears the following as the most glaring examples of the erroneous and prejudicial character of the court’s instructions to the jury.
    
      Ordinarily ignorance of the law will not excuse a violation of its requirements. Every man is presumed to know the law. A construction has however been given by the courts to the penal statute involved in this action, which somewhat qualifies the general rule to which I have referred. That statute provides a punishment for what it broadly terms “misconduct in office,” but offers no definition of this phrase.
    The act is so broad in its scope, if literally construed, as to require some construction to determine its real intent, and the penalties imposed are of such character that the section can hardly be understood as applicable to every trivial inattention to or carelessness concerning legal requirements, where there is no wrongful intent.
    This fact has led to the only judicial constructions of the statute in this state which have been brought to my attention. In the light of these interpretations, I therefore instruct you that to constitute any acts or omissions of the defendants or either of them “misconduct in office” within the meaning of this statute, such acts or omissions must have been wilful and corrupt.
    From the authorities cited the fixed policy as well as the settled body of the law is clear. In an age when commercialism and official corruption are twin vultures preying upon the body politic, courts cannot temporize with' crime. The appalling and brazen assumption with which public officials betray their trusts is a reproach upon human nature and integrity and a menace to civil liberty. The disastrous and far reaching effect of official misconduct and corruption in its immediate destruction of respect for government and institutions and remotely by the example which successful crime ever is to the young and ambitious cannot be calculated. Courts and officers of the law cannot be too zealous in the discharge of their official duties to the public and to the state in matters of enforcing punishment against offenders for official misconduct.
    Fortunately our own court of highest jurisdiction has already indicated in a civil case, the position of this tribunal upon this question. The Buchanan Bridge Co. v. Campbell, 60 Ohio St., 406; State v. Commissioners, 10 Circ. Dec., 532; 19 C. C. R., 627.
    
      Mr. J. D. Finch, attorney for defendants in error.
    This proceeding is under section 7306, Revised Statutes. Its object is defined in section 7308, and being not to reverse the decision of the common pleas, but only to determine the law applicable to other cases yet to come, it is of less consequence to the defendants, Bair and Overmyer, what the decision of this court may be than it is to the general public. To the public it of special importance as to the main questions raised, viz;: whether an evil and corrupt motive must be shown by the state on the part of the county commissioners in the doing of an act not malum in se, to constitute that act criminal misconduct. Or whether they may be punished as criminals for a mere inadvertence, stupidity, carelessness, bad judgment, want of knowledge, or for Want of a correct understanding of statutory rules governing the making of contracts.
    If they are to be treated as criminals when acting with pure motives for such shortcomings as above mentioned then none but men reckless of consequences to themselves will dare to accept the office of county commissioner. The careful and conservative man will be too careful and conservative to take such chances'; and this effect will be felt throughout the state in every county.
    Section 6915, Revised Statutes, does not merely provide that some specified act shall be ground for removal.
    If it did, there might be grounds for claiming that the motive for the act was not material. McClain’s Criminal Law, section 913, and cases cited.
    This section 6915 is penal, in addition to working a forfeiture. ■ It is crime to violate it.
    One might be rightfully removed from office under a proper, statute for mere carelessness in conducting it, or for such ignorance as would disqualify, but the legislature, having in addition, provided a' punishment as for crime, it cannot be that it was the intent to make mere ignorance of duty, mere misguided judgment, mere mistake in construction of the law, or inadvertence, or mere ignorance of the existence of section 2834b, a crime.
    We do not contend that one may defend against a charge of stealing, by being ignorant of the law which punishes larceny, but we think he could by showing a real mistake as to the meaning of another law, by reason of which he believed the property to be his own. This would relieve the act of its felonious character and make it mere trespass.
    
      And in this case, we do not contend that these defendants conld defend by showing ignorance of this criminal statute, section 6915, which punishes for misconduct in office.
    But section 2834b is in no way a penal statute. It points out what is necessary to hind the county in a contract involving the expenditure of money.
    It seems clear that the propriety of treating ignorance of legal duty as an excuse for a nonperformance rests solely upon a proper construction of section 6915, Revised Statutes.
    Ignorance of a rule of duty whether statutory or not, negatives the idea of 'wilfullness or corruption in its breach.
    One may illegally violate a rule of which he is ignorant, hut he cannot wilfully or wickedly violate a rule without knowledge of the rule.
    Hence if wilfullness and corruption of motive are of the essence of criminal misconduct, they must he alleged in the indictment and proved on the trial. •
    And ignorance of the rule violated repels the very idea of even intentional violation, and without such intent there can he no wilful, defiant, or corrupt motive in violating it.
    The indictment in this case avers that the act of contracting without the certificate was with knowledge of the requirements of the law, and was wilfully and corruptly done.
    Where the motive with which an act is done is material in determining its criminality, then ignorance of the rule of duty should excuse the act, and in such cases the act being not criminal, without the evil intent, the state must prove the intent as well as the act. The motive was material in this case, the act charged being not malum in se. People v. Stevens, 109 N. Y., 163.
    It is, of course, not contended by defendants ’ counsel, that ignorance on the part of the commissioners as to legal rules of contracting would make valid a contract made in violation of them, but such ignorance is not criminal in character, not bad in itself.
    ■ The state’s attorney cites many authorities which we think sustain the circuit and the trial court. The following are some of them.
    First: The definition of misconduct in office, “Any unlawful behavior in relation to the duties of an office, wilful in its character. ’ ’ 20 Am. & Eng. Ency. Law, 801.
    Second: The phrase “Misconduct in office” is broad enough to embrace any wilful malfeasance, misfeasance or nonfeasance in office. State v. Slover, 113 Mo., 208.
    Third: Where a public officer entrusted with definite powers to be exercised for the benefit of the community abuses or fraudulently exceeds them he is punishable by an indictment, though no injurious effect to any individual result from his misconduct. State v. Glasgow, Conf. Rep., 38; 2 Am. Dec., 629.
    Each of the foregoing citations by the state implies knowledge of the rule, which was violated, by' the officer, and in each case the act was either wilful or bad in itself.
    No act of a public officer can be called official misbehavior unless wilfully and corruptly done.
    This has been the law, even in civil eases, since time out of mind. Drew v. Coulton, 1 East, 563; Buller’s N. P., 63; Stewart v. Southard, 17 Ohio, 402; Gregory v. Small, 39 Ohio St., 348.
    
      Section 6915 punishes official misconduct without defining it. We must therefore presume that the legislature meant to punish that which had theretofore been recognized as official misconduct.
    The intent was to make such misconduct as involved moral turpitude, wickedness, evil and corruption of motive a crime. A legal phrase, not mere misconduct, but “Misconduct in office” is used.
    And here we have an unbroken line of decisions in Ohio, defining what is culpable misconduct in office. The circuit court of Hamilton county followed this idea in the case of Hatch v. St. Clair, 1 Circ. Dec., 421 (2 C. C. R., 163). The circuit court for Wood county followed it again in the case of Knight v. State, 5 Circ. Dec., 29 (11 C. C. R., 23). The trial court could do no less in this ease.
    No case in Ohio is' cited contradicting this idea, and many authorities cited by the state outside of Ohio, support it, and many stronger ones can be cited.
    If wilfullness and corruption of motive must be averred and proved then it follows that knowledge of duty must also be shown. This knowledge may, of course, be shown by circumstances and is a legitimate question for a jury.
    The kind of ignorance we contend for is after all but ignorance of a fact. Ignorance of. the fact that there was a statutory rule as to contracts such as is contained in section 2834b. Wharton’s Criminal Evidence (8 ed.)', secs. 85 and 724; R. v. Reed, C. & M., 306; State v. Scates, 43 Kan., 330; s. c. 23 Pac. Rep., 479.
    To depart from this doctrine and adopt the one advocated by the state in the case at bar would be to punish as a criminal any county commissioner who misinterprets a section of the statutes.
    This would he a harsh ‘rule if applied to. attorneys in the case at har. Four attorneys combated before the trial court five weeks, and two of them are now here claiming the attention of this court, all for the purpose of determining the intent and meaning of section 6915, and yet it is claimed that these two farmers should be punished for not knowing the meaning of section 2834b when they did not even know of its existence.
    Suppose that section 6915 had mentioned judge instead of county commissioner, what would become of some of our very honest judges who misinterpret the law or fail to keep pace with the legislature as to new laws, under such a construction as is contended for by the state ?
    To he criminal misconduct the act must he corrupt. Com. v. Shed, 1 Mass., 228; State v. Gardner, 2 Mo., 22; People v. Coon, 15 Wend., 277.
    Evidence that others in the same office have never followed section 2834b was admitted, not to justify its omission by defendants hut as throwing light on their motives as to whether their acts were corrupt and wilful or the result of ignorance, inadvertence or negligence.
   Shauck, J.

The indictment was found under section 6915, Revised Statutes: “Whoever, being a county commissioner, is guilty of any misconduct in office, shall he fined not more than $400.00, and shall forfeit his office.”

The alleged misconduct of the defendants consisted of the violation of section 2834b, which, omitting irrelevant portions thereof, is as follows:

“The commissioners of any county * * * shall enter into no contract, agreement or obligation involving the expenditure of money * * * unless the auditor * * * shall first certify that the money required for the payment of such obligation or appropriation is in the treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate, and in process of collection and not appropriated for any other purpose; which certificate shall be filed and immediately recorded, and the 'sums so certified shall not thereafter be considered unappropriated until the county * * * is fully discharged from the contract, agreement or obligation * * * and all contracts, agreements or. obligations * * * en_ tered into * * * contrary to the provisions of this section shall be void.”

Much of the argument advanced in support of the exceptions is answered by the familiar proposition that in this state there are no crimes except those which are created by statute; and much that is urged as authority must, for that reason, be regarded as inapplicable here.

There is also a vigorous insistence that the rulings below involve a denial of the maxim, ignorance of the law excuses no one. This is so peculiarly a maxim of the criminal law that its application to other departments of the law has been sometimes denied. • In all criminal cases to which it properly applies it has the conclusive effect which counsel claims for it. It would be entitled to that effect in the present case if the defendants were seeking-immunity from punishment because of their ignorance of the provisions of the section under which the indictment was found; They do not, however, claim that they were ignorant of the statute providing that they should pay a fine and forfeit their offices if they should be guilty of misconduct in office. The view urged in their behalf is that being ignorant of the provisions of the section of. the statute regulating the performance of their duties in the making of contracts which involved the expenditure of money, they could not have disregarded its provisions wilfully, and as they received no benefit from their act, they did not disregard the statute corruptly; and, therefore, that they were not guilty of “misconduct in office” within the meaning of that phrase as it is used in the section of the statute under which the indictment was found.

Whether the judge of the court of common pleas in the instructions given and in refusing instructions requested by counsel for the state erred to the prejudice of the state in defining that phrase is the only question for determination. Since the disregard of the requirements of section 28346 is urged as misconduct in office, whether the disregard was wilful and corrupt or not, it will be helpful to observe that the section itself defines the consequence of its violation to be that the contract so made shall be void. Certainly it will not exceed the legitimate force of this provision to say that the violation of this section cannot be regarded as within the contemplation of section 6915 in any view which would not include all of the numerous statutory provisions relating to the duties of these officers, whatever may be their relative importance. Nor does it seem that any discrimination is practicable whereby, if knowledge of the existence of these numerous provisions is required, their correct-interpretation could be excused, however obscure they may be. These suggestions make apparent the magnitude of the undertaking to maintain the proposition that conduct which is neither wilful nor corrupt may he misconduct in office within the contemplation of a criminal statute. Even in civil actions the contrary rule has been held by this court. In Stewart v. Southard, 17 Ohio, 402, it was said:

‘ ‘ This is in the nature of an action for misbehavior by a public officer in the discharge of his duty. The acts complained of are not charged to have been done wilfully or maliciously. The most that can be made of the averments of the declaration when tried upon a demurrer is, that the plaintiffs in error, while acting in their corporate capacities as directors of a school district, misjudged the law and acted erroneously. ‘There is no instance of an action of this sort maintained, for an act arising merely from an error of judgment.’ Harman v. Tappenden, 1 East, 555. In Ramsey v. Riley, 13 Ohio, 157, this court held that an officer acting within the scope of his duty is only responsible for an injury resulting from a corrupt motive. These principles are clearly applicable, and must be conclusive of the merits of this declaration, unless we should depart from them. "We are not inclined to do so unless required by the authority of our own decisions.”

Our attention has not been called to a better definition of the phrase in question than the following: “Any unlawful misbehavior in relation to the duties of an office, wilful in its character.” To the suggestion that the view taken by the judge of the court of common pleas offers these officers an easy and safe mode of evading their statutory duties, little attention need be given. It is answered in nearly every case in which a court declines to exercise legislative power by arbitrarily enlarging tbe definitions of terms wbicb tbe legislature bas employed.

Exceptions overruled.

Spear, C. . J., Davis, Crew and Summers, JJ., concur.  