Appeal from the District Court of the ¡Nineteenth Judicial District, City and County of San Francisco.

The complaint averred that the complainant was a citizen and taxpayer of the State of California. The complaint was filed January 20th, 1873, and it alleged that Marks’ term of office as Harbor Commissioner was four years from the 6th day of December, 1869; and that the office of State Harbor Commissioner was an office provided for and created by the terms of an Act of the Legislature entitled “ an Act to provide for the improvement and protection of the wharves, docks, and water front of the City and County of San Francisco,” approved March 14th, 1863; and that the duties of said Board, among other things, were to collect such rents, tolls, wharfage, eraneage, and dockage as should be fixed under said Act, and to disburse and dispose of the revenue arising therefrom as in said Act provided; and that the said John J. Marks knowingly, willfully, and corruptly refused and neglected to discharge his said duty as a member of said Board of State Harbor Commissioners; and that he willfully and corruptly conspired and colluded with Jasper O’Farrell, likewise a State Harbor Commissioner and member of said Board, the two constituting a majority thereof; and did control, influence, and direct its action so as to cause said Board to so manage the affairs of said Commission that the said revenue arising from said rents, tolls, wharfage, eraneage, and dockage should not be disbursed and disposed of according to law and said Act of the Legislature, but should be fraudulently appropriated to their own proper use and benefit, and especially to the use and benefit of said John J. Marks. That heretofore, to wit: on the 1st day of June, 1872, at said city and county, the said Board of Harbor Commissioners resumed possession of Broadway wharf, a wharf of the property of the State, and under the control of said Board, and before that time under lease to the Central Pacific Railroad Company, for the purpose of ascertaining its actual value, with the view of reletting it to said railroad company; that said Marks was, at the time above named, Harbor Commissioner as aforesaid, and acted officially in said Board in favor of said proceeding, causing and'influencing the same by his official vote and action to be done; that upon the said order being passed the Board, the said Marks undertook, in his. official capacity as State Harbor Commissioner, to cause the same to be carried out; and that, in that behalf, he ordered the acting collector of said wharf, John Buchanan, to collect the tolls of said wharf during said month of June, 1872, and to pay the tolls so collected, day by day as fast as collected, to Charles Callaghan, then an employé of said Board. And further, that the said Marks then and there, acting in his official capacity as State Harbor Commissioner, directed the said Charles Callaghan to receive said tolls from said Buchanan, and to cause false and fraudulent reports and returns to be made to the office of the State Harbor Commissioners concerning the same, concealing the real amount of tolls so collected; and the said Marks then and there directed the said John Buchanan and the said Callaghan so to make such false and fraudulent reports and returns.

And the complaint further charged that the said John Buchanan, acting under the orders of said John J. Marks, collected the tolls at said wharf for said month, and that the same "amounted to the sum of nine hundred and seventy-eight dollars, which sum was of the moneys of the State, and that, acting under said Marks’ orders, only five hundred and twenty-six dollars and seventy-five' cents of said sum was paid over to the State by said Buchanan, or by any one whomsoever, but that the balance, to wit: the sum of four hundred and fifty-one dollars and twenty-five cents, was received and taken from the said John Buchanan by the said Charles Callaghan, acting under said Marks’ orders, and was afterwards, to wit: on the day last given aforesaid, by the said Charles Callaghan, paid over to Thomas Marks, the son and duly authorized agent of the said John J. Marks, for the use of the said John J. Marks, and that the same was afterwards, to wit: on the day and year aforesaid, by said Thomas Marks, duly delivered to his said father, John J. Marks, and by him converted to his own use. That no part of said last named sum of four hundred and fifty-one dollars and twenty-five cents has ever been accounted for or paid to the State Treasury, as required by law.

And the complaint further charged that the hereinabove recited transaction at and relating to the said Broadway wharf was done the better to enable said Marks to influence and cause said Board to make a corrupt contract of lease of said wharf to said Central Pacific Railroad Company, and that the same was afterwards, to wit: on the 1st day of July, 1872, by said Board, under and by the official influence and action of said Marks, made and entered into with said railroad company.

That at the city and county aforesaid, to wit: on or about the 1st day of July, 1872, Broadway wharf, of the property of the State under control of said' Board, was let by said Board to the Central Pacific Railroad Company, as tenants, from month to month, at the monthly rent of five hundred dollars per month, a sum which was then, and ever since hath been, greatly less than the true monthly value of said wharf. That said wharf was then and there, and hath ever since been and now is, worth the just and full sum of two thousand dollars per month, which fact the said John J. Marks well knew. But that in refusal and neglect of his duty he voted and officially acted in said Board in favor of making said lease, thereby causing the same to be made at said inadequate sum of five hundred dollars per month. That he was moved to his said action by a corrupt and secret understanding with said railroad company; that he, the said John J. Marks, was to be paid for his said action the sum of two thousand five hundred dollars cash in hand.

And the complaint further alleged that the said John J. Marks was afterwards, to wit: on the day and year aforesaid, paid by said company, in pursuance of said before mentioned secret agreement, the said sum of two thousand five hundred dollars, which he appropriated to his own use, in violation of his duty and against the law.

There were other charges of a similar nature with regard to leasing Washington street wharf to Goodall & Helson, and the bulkhead on East street to Turner & Harvey, the Greenwich dock to Green & Searles, and Cowell’s wharf to Edwards & Sage, and the wharf on East street to Thomas & Drake.

The complaint also averred that it was the duty of said Board to employ suitable wharfingers and collectors, and to require of them to keep a correct account of moneys collected, and to pay over such moneys once a week, and that Marks, in collusion with O’Earrell, caused the Board to neglect and refuse to do so, and caused the Board to appoint improper persons, and caused the Board to refuse and neglect to require said appointees to keep any account, or to pay over the money by them collected once a week, or at any time; and that Marks caused the employes to expend the moneys by them collected without vouchers or check, in making repairs on wharves, etc.

That said Marks caused an assessment to be levied on all the wharfingers and collectors, to make up a fund of ten thousand dollars to be paid to him; and that said wharfingers and collectors, by direction of Marks, paid said assessments to Marks out of money collected by them of the revenues of the wharves of which they were collectors.

That said Marks also caused said wharfingers and collectors, out of the money collected by them, to buy him a set of silver plate, at a cost of nine hundred dollars.

That it was the duty of said Board to cause the docks and slips to be dredged, and to award a contract therefor to the lowest bidder, after advertising the same, and that Marks made an agreement with one Black to do said dredging at thirty-four cents per cubic yard, when it was worth only twenty-five cents per yard, and the contract was let to Black without any advertisement, and Marks received from Black ten ¡3er cent of the gross proceeds of the dredging.

There was a similar charge with regard to a contract with Boobar and Richardson about driving piles.

That Marks influenced the Board to require the wharfingers and collectors to charge full sums to vessels for wharfage and dockage, but to retain one third of the amount to pay assessments laid by Marks, and to return to the Board a sum less than that collected.

The plaintiff appealed.

The other facts are stated in the opinion.