The opinion
McNEILL, J.
(dissenting). I dissent from the views expressed in the majority opinion in reference to the charges of nepotism. The defendant, J. H. Baedeker, a member of the board of county commissioners of Payne county, Okla., was tried for removal from office under an accusation presented by a grand jury of said county, the specific cause for removal being willful maladministration. The accusation specifically charges in its separate counts that the defendants, Ed. T. Thatcher, A. O. Holbrook and J. H. Baedeker, while acting as county commissioners
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of Payne county, Okla., in regular session, did tiren and there willfully, knowingly, and wrongfully authorize and vote to authorize the drawing of certain warrants of Payne county for the payment out of the county highway fund of said county for road work done by Roy Clark; that Roy Clark had theretofore been appointed and employed by the board of county commissioners of Payne county, the same being then and there composed of the above defendants, to work regularly and continuously upon the public roads of Payne county, for sa'id county, which fact was then and there well known to said commissioners and each of them, and which warrants said commissioners authorized and voted to authorize to be drawn and issued to said Roy Clark as payee for the purpose of paying the salary and wages of the said Roy Clark; that the said Roy Clark was then and there, and at all times mentioned in this accusation, related to the said A. O. Holbrook within the 3rd degree of affinity, to wit, he being a brother-in-law of the said A. C. Holbrook, and J. H. Raed-eker then and there, and at all times mentioned in this accusation, well knew, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.
Section 5826, C. O. S. 1921, provides that claims filed against the county shall be filed with the county clerk five days before the first day of meeting of the county commissioners, which accounts shall be regularly numbered in the order of filing and placed on the calendar by the county clerk for public inspection and convenience. The same shall thereafter, under the provisions of section 6827, O. O. S. 1921, be recorded on the county clerk’s calendar of claims. Under section 5829, G. O. S. 1921, the county commissioners shall take- up said calendar’ of claims and pass upon each of said claims and the clerk shall note their action on said calendar and also indorse the same on the claim so filed, giving the date when the same was acted upon and if allowed, on what fund the same was allowed. Under section 5880, O. O. S-. 1921, it is the duty of the county clerk to transcribe said calendar showing the action of said commissioners on the various claims so filed and acted upon into a book to be known as the “Record of Claims Allowed Against -County.”
There is no evidence showing that said defendant ever voted for the passage and allowance of any claim growing out of the charges of nepotism filed against him. The majority opinion infers that there is a presumption against the official acts- of said defendant in that the claims mentioned in the accusation were allowed by the board of county commissioners of sa'id county, and that the record does not show a negative vote on the part of the defendant, Raedeker. The statute does not require the recording of a negative vote on the part of any member in the allowance or rejection of any claim. This record is to be kept by the county clerk, and not by a commissioner. It is settled law that an officer is presumed to perform his duty in a lawful manner, and that as such officer he will do h'is duty. In the absence of clear proof to the contrary, this court has refused to hold that an officer did not do his official duty imposed upon him by law. See City of Sulphur v. State ex rel. Lankford, 62 Okla. 312 , 162 P. 744 ; Board of Com’rs, Garfield County, v. Field, 63 Okla. 80 , 162 P. 733 ; Bonaparte v. Nelson, 142 Okla. 54 , 285 P. 100 .
There is no evidence that the defendant ever authorized or voted to authorize the payment of a single claim on which the charge of nepotism is based. The specific statutory cause, for removal under section 2394, C. O. S. 1921, is willful maladministration and not maladministration. It was an essential element of the offense charged against said defendant that said defendant vote for the allowance of the claims in question. The absence of .such proof is fatal as against a motion for a directed verdict. In the total absence of such proof, it is my opinion that the defendant was entitled to the real presumption properly to be indulged in, to wit, that the state had no competent evidence to show that the defendant voted for or authorized the allowance of any of said claims.
In Moore v. Adams, 26 Okla. 48 , 108 P. 392 , this court has said;
“When it lies within the power of a party to an action to produce evidence upon an issue, and he fails, the presumption follows that the evidence, if produced, would be unfavorable to the cause of such party.”
So far as presumptions are concerned, the law imposes upon the defendant the faithful performance of his official duties. It can be presumed that he protested against the allowance of these claims, which he should have done, in the exercise of his duty, if the facts were shown to have existed as charged in the accusation. But the state was called upon to prove facts and not rest upon presumption. Where there are conflicting presumptions, the presumption which favors the innocence of the accused prevails. 16 C. J. 542.
It is my opinion that it was incumbent upon the state to prove the essential facts and circumstances necessary to constitute the
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charges of nepotism against the defendant before it could establish willful maladministration. This it has failed to do. The defendant is presumed to be innocent of the crime charged against him, and this presumption abides with the defendant throughout the trial until it is established beyond a reasonable doubt by competent evidence that the defendant is guilty of the offense charged. The state did not meet this burden. .The presumption that defendant did not do his official duty in. voting against the allowance of the claims in question cannot be used as a substitute for proof. Maney v. Boise Title & Trust Co., 116 Okla. 202 , 244 P. 170 .
A presumption of a definite and material fact cannot furnish an inference of fact. Chainberlayne, The Modern Law of Evidence, section 1203.
The presumption indulged in by the majority opinion, in my opinion, is not sufficient to submit to a jury to prove willful maladministration as a ground for removal from office. Such a presumption cannot be extended so as to cover independent facts essential to establish the issue of defendant’s removal from office. Appling v. State (Ark.) 128 S. W. 866 , 28 L. R. A. (N. S.) 648.
In the instant case it was essential to prove the offense of nepotism charged against said defendant by competent evidence by showing that the defendant did vote for the allowance and payment of the claims out of which the aforesaid offense is based. The mere fact that the defendant was present at the time the commissioners authorized said payments is not sufficient. The official acts of the majority could not incriminate said defendant provided he did ■not vote for or authorize the payment of the claims in question. The removal of an officer from a public office is a solemn, and serious matter and the offense charged should be proved by positive, material, and independent facts, and not upon a mere presumption. This would lead to untold confusion. In effect, this opinion places the burden of proof upon, the defendant to prove that he is innocent of the offense with which he is charged. This is not consonant with established rules in the furtherance of justice. If said defendant did vote for the allowance of the questioned claims, the state should have introduced proof of such facts. If those positive facts did exist, the state should have offered such evidence to the court and jury. On so serious a charge the state must prove willful maladministration beyond a reasonable doubt. It is difficult to conceive how proof of such a charge upon mere presumption can be held to be sufficient, when the law enjoins upon the state to prove the essential elements of its accusation beyond a reasonable doubt. It conflicts with presumptions of equal plausibility in. the face of the presumption of innocence.
I think this principle is well illustrated in the case of U. S. v. Carr, 132 U. S. page 644, in which Mr. Chief Justice Fuller qubtes w'ith approval from Mr. Justice Strong, speaking for the court in the case of U. S. v. Ross, 92 U. S. 281 -284:
“The presumption that public officers have done their duty, like the presumption of innocence, is undoubtedly a legal presumption ; but it does not supply proof of a substantive fact. Best, in his Treatise on Evidence, sec. 300, says: ‘The true principle intended to be asserted by the rule seems to be, that there is a general disposition in courts of justice to uphold judicial and other acts rather than to render them inoperative r and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speajking, essential to the validity of those acts, and, by which they were probably accompanied in most instances. although in others the assumption may rest on grounds of public policy.’ Nowhere is the presumption held to be a substitute for proof of an independent and material fact.”
The court, in my opinion, has applied an incorrect principle of law to the facts in this case. It was incumbent upon the state to prove the essential, independent material facts that said defendant voted for or authorized the payment of the claims in question. Presumption is not sufficient. From this record there is no presumption of fact or law that said defendant voted for or authorized the payment of said claims, because the record and the evidence does not show a negative vote. The judgment of the trial court in reference to directing a verdict on the counts involving charges of nepotism should be sustained.