B. TRIPLETT v. AUGUST MUNTER, 50 Cal. 644

By the Court : The information does not aver that the fees received by the defendant, in excess of those he was entitled to charge, were knowingly, willfully or corruptly taken; and the court finds “that the defendant charged and collected said illegal fees under an honest conviction that he was legally entitled thereto.” The proceeding is taken under

section 772 of the Penal Code, which relates to the offense “of charging and collecting illegal fees,” and of the neglect or refusal of an officer “to perforin the official duties of his office.” The same penalty is denounced against both offenses, viz., removal from office and a fine of §500 for the use of the informer. The provision is highly penal in its nature; and though the statute does not in terms require that the wrongful act must have been knowingly and corruptly done, we are satisfied that it was not the intention of the Legislature to visit with this severo penalty

an act performed by an officer in perfect good faith, and under an honest conviction that he was acting strictly within the line of his duty. It was not intended to punish an officer by removal from office, and with a penalty of §500, for a mere error of judgment, in the honest discharge of his duties. In such cases it may be that if the wrongful act be established, the burden will be on the defendant to show affirmatively that it was done honestly and in good faith. But in this case that fact was found in favor of the defendant. Judgment and order reversed, and cause remanded.