¶1CONCURRING OPINION
¶2In considering the Impeachment Act of 1897 (hereafter referred to as the Act), §49-836, Burns’ 1951 Replacement, Ch. 182, Acts 1897, it should be first observed that it is anything but perfect legislation, and was apparently adopted from some other jurisdiction without any consideration being given the constitutional limitations contained in our 1851 Con*15stitution. The provisions for removal by grand jury accusation, contained in §§21 to 88, inclusive, of the Act, §§48-821 to 48-833, Burns’ 1951 Replacement, provide no statutory causes for removal, although in State v. Sutherlin (1950), 228 Ind. 587, 92 N. E. 2d 923, this court unanimously held that, under §§7 and 8 of Article 6 of the Constitution, a county officer could be removed for the constitutional causes stated in §7 of the Article. In State v. Dearth (1929), 201 Ind. 1, 164 N. E. 489, in a unanimous opinion by this court, it was held that the first section of the Act could not apply to judges and prosecuting attorneys, although it stated so, and that the provisions of §19 of the Act, §49-819, Burns’ 1951 Replacement, requiring disfranchisement and ineligibility for public office, were unconstitutional. In State v. Patterson (1914), 181 Ind. 660, 105 N. E. 228, in a unanimous opinion by Chief Justice Douglas Morris, it was held that §35 of the Act does not apply to prosecuting attorneys, and it would be unconstitutional to hold that a prosecuting attorney could be removed for “neglect in the performance of official duties,” since to so hold would contravene §12 of Article 7 of the Constitution.
¶3Respondents assume the acts charged would constitute a criminal offense. It is not necessary to determine whether his acts made him subject to criminal prosecution, for there was no attempt made by the state to charge crime as the cause for removal. If the *16accusation had so stated, under the clear provisions of the Act and §§7 and 8 of Article 6 of the Constitution, the accusation could only be presented by the grand jury, which would have entitled the relator to a trial by jury under §80, §49-830, Burns’ 1951 Replacement, instead of the summary removal without benefit of trial by jury provided by §35 of the Act, §49-836, Burns’ 1951 Replacement.
¶4Section 35 of the Act is almost identical with the summary removal provisions of the removal act of Nevada, concerning which Chief Justice McCarran, now Senator McCarran, in Ex Parte Jones and Gregory (1918), 41 Nev. 523, 532, 533, 173 Pac. 885, 888, wrote:
“The statute which gives rise to this proceeding is one for the removal of certain officers. It is part of our law, made so by legislative will. The whole procedure is denominated as being summary; hence it precludes the right to jury trial. Into the hands of the district judge this statute lays one of the most sacred duties, that of removing an individual from the enjoyment of public position of trust and - honor. The law, in my judgment, contains nothing which recommends itself to the spirit of democracy. It partakes of none of the progressive inspiration which gave rise to the historic scene at Runnymede. It is an extreme and extraordinary mea-,, sure, intended only for extreme and extraordinary occasions. It is fraught with seriousness and a demand for extreme caution both from the standpoint of him who prefers the charge and him who. listens and pronounces judgment.”
¶5This statement was subsequently approved by that court in a unanimous opinion by Justice Badt in Jones v. Eighth Judicial District Court (1950), 67 Nev. 404, 219 P. 2d 1055, 1062.
¶6Sections 7 and 8 of Article 6 of our Constitution provide as follows:
*17Sec. 7. “All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office, either by impeachment by the House of Representatives, to be tried by the Senate, or by a joint resolution of the General Assembly; two-thirds of the members elected to each branch voting, in either case, therefor.” (Italics added.)
Sec. 8. “All State, county, township and town officers, may be impeached, or removed from office, in such manner as may be prescribed by law.”
¶7In McComas v. Krug (1882), 81 Ind. 327, 333, 42 Am. Rep. 135, this court, in an opinion by Howk, J., reasoned that these two sections should be construed in pari materia, and said:
“It would seem that these two sections of the constitution were intended, and ought, to be construed together. They both treat of the same general subject, namely, impeachment or removal from office. Construed together, sections 7 and 8 would provide, as to State officers, that for crime, incapacity, or negligence, they should be removed from office, either by impeachment by the house and trial by the senate, or by a joint resolution of the General Assembly, or in such manner as might be prescribed by law; and, as to county, township and town officers, the same sections of the constitution, construed together, would provide that for crime, incapacity, or negligence, they should be impeached, or removed from office in such manner as might be prescribed by law.”
¶8In State v. Patterson (1914), 181 Ind. 660, 663, 105 N. E. 228, supra, this court again unanimously approved this reasoning. In State v. Sutherlin (1950), 228 Ind. 587, 92 N. E. 2d 923, supra, this court again unanimously approved this construction of §§7 and 8.
¶9In conformity with these decisions it must be held that the only causes for removal of a township trustee are the constitutional causes of “crime, incapacity, or *18negligence.” The uniform rule of construction for such constitutional provisions has been the named causes exclude other causes not named. “That which is expressed makes that which is silent to cease.”
¶10“The constitution of the state has designated the causes for which sheriffs may be removed from office, and the mode in which it is to be done; consequently the legislature had no power to add other causes of removal, and prescribe other or different modes.” Brown v. Grover, Administrator, etc. (1869), 69 Ky. 1, 3.
¶11The relator does not assert that §35, §49-836, Burns’ 1951 Replacement, is unconstitutional in the second cause stated for removal, but he urges a construction which is clearly in conformity with the constitution. Properly construed, the refusal or neglect to perform official duties pertaining to the office is not unconstitutional. It is our mandatory duty to be bound by the Constitution in the construction of any statute. This is a rule of statutory construction which we should notice the same as any other rule of statutory construc*19tion. It is our duty to construe the statute in conformity with the Constitution as has been recognized many times by the authorities, as well as precedents of this court.
¶12The relator has no vested interest in his office, and his rights therein must yield to the constitutional regulations of the state in the exercise of its police power, but the state is also bound by our constitution as it is plainly written. I know of no rule which requires us to draw down an iron curtain over the constitution which would prevent us seeing what we know to be the supreme law of this jurisdiction. Section 1-101, Burns’ 1946 Replacement. If we take judicial notice of statutes, a fortiori we should take judicial notice of the constitution. 9
¶13Section 35 of the Impeachment Act is limited to the charging or collecting of illegal fees, or refusing or neglecting to perform official duties. It states:
*20“When an accusation in writing, verified by the oath of any person, is presented to a circuit court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered, in his office, or has refused or neglected to perform the official duties pertaining to his office, •the court must cite the party charged to appear before the court . . . and if, on such hearing, it. appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars ($500) in favor of the prosecuting officer, and such costs as are allowed in civil cases.” Section 49-836, Burns’ 1951 Replacement. (Italics added.)
¶14“The penalty is forfeiture of his office, and statutes providing for penalties and forfeitures must be strictly construed.” Beesley v. State (1941), 219 Ind. 239, 244, 37 N. E. 2d 540.
¶15If there is to be any consistency in the cases deciding what are causes for removal of officials for acts or omissions, it is necessary to keep clear the well recognized definitions of malfeasance, misfeasance and nonfeasance. “ ‘Nonfeasance’ means the omission of an act which a person ought to do; ‘misfeasance’ is the improper doing of an act which a person might lawfully do; and ‘malfeasance’ is the doing of an act which a person ought not to do at all.” Black’s Law Dictionary (4th Ed.), p. 1151. Malfeasance implies that the act was ultra vires the official powers or authorities of the officer, “while nonfeasance is an omission to perform a required duty at all or total neglect.” State v. McRoberts (1934), 207 Ind. 293, 298, 192 N. E. 428. The cause for removal that the officer “has refused or neglected to perform the official duties pertaining to his office,” must be construed under the constitutional limitations of §87 and 8 of Article 6 of the Constitution, for* *21under the authorities already considered, the legislature is without power to add to the causes for removal. The only cause for removal by neglect to perform official duties under §35 of the Act must be a “negligent” neglect. It is negligent nonaction. State v. Beazley (1926), 77 Mont. 430, 250 Pac. 1114. See also State v. McRoberts (1934), 207 Ind. 293, 192 N. E. 428, supra. Under no, possible construction is the relator here as trustee charged with a negligent act. He is charged with an act of malfeasance and that alone.
¶16The constitutional limitations on causes for removal were wholly unnoticed in Weatherholt v. State (1936), 209 Ind. 525, 199 N. E. 713; State ex rel. Weatherholt v. Perry Circuit Court (1933), 204 Ind. 673, 675, 185 N. E. 510, as well as in State v. McRoberts (1934), 207 Ind. 293, 192 N. E. 428, supra, and Beesley v. State (1941), 219 Ind. 239, 37 N. E. 2d 540. Even aside from the constitutional requirement, it is impossible to see how the reasoning of the Weatherholt case, supra, can be squared with the reasoning of the Beesley case, supra. As was' so aptly stated by. my Brother Chief Justice Gilkison when he was the Special Judge in the Beesley case, supra, “ ‘Applying the same kind of reasoning [found in the Weatherholt case], it would be difficult to imagine any sort of malfeasance or misfeasance that would not be actionable under the statute quoted, for neglect to perform an official duty. . . ” P. 246. Clearly the reasoning of the Beesley case, supra, which cited with approval the McRoberts case, supra, overruled the second Weatherholt case, supra, and the many subsequent cases on special statutory causes of .action overruled the reasoning of the first Weatherholt case, supra. Reluctantly I am driven to the.conclusion that the net effect of this confusion was *22to make fish out of one trustee, and fowl out of the other. Both Weatherholt cases, supra, have been overruled.
¶17“The proceeding is a special statutory one, summary in character, unknown to the common law, and not a civil action.” State v. Perry Circuit Court (1933), 204 Ind. 673, 675, 185 N. E. 510. When a party seeks to invoke the jurisdiction of a- court to act in a special statutory proceeding, which is unknown to the common law, he must, “without the aid of any intendment, bring himself strictly within its spirit as well as its letter. Martin v. Schulte (1933), 204 Ind. 431, 182 N. E. 703.” Gossard v. Vawter (1939), 215 Ind. 581, 583, 21 N. E. 2d 416. See also State ex rel. Robertson v. Circuit Court of Lake Co. (1938), 215 Ind. 18, 17 N. E. 2d 805; State v. Reeves (1951), 229 Ind. 164, 96 N. E. 2d 268; and State ex rel. Gary Taxpayers’ Assn., Inc. v. Lake Superior Court (1947), 225 Ind. 478, 76 N. E. 2d 254. 1 Watson’s Work’s Practice & Forms p. 294, §414; 1 Lowe’s Work’s Indiana Practice §13.13, p. 449; 2 Gavit, Indiana Pleading and Practice p. 1714, §236; Peoples v. Valparaiso (1912), 178 Ind. 673, 100 N. E. 70; Sherfey v. Brazil (1938), 213 Ind. 493, 504, 13 N. E. 2d 568; Thornburg v. American Strawboard Co. (1895), 141 Ind. 443, 445, 40 N. E. 1062, 50 Am. St. Rep. 334; Brown, Jurisdiction (2d Ed.) p. 15, §2b.
¶18The act itself clearly indicates jurisdiction is dependent upon compliance with its provisions, for it provides, “When an accusation in writing, verified by the oath of any person, is presented to a circuit court, alleging, etc. . . .” (Italics added.) Not until a proper charge is filed may the court cite the party charged and obtain jurisdiction over his person.
¶19Courts do not assume jurisdiction sua sponte to settle controversies between parties. Brown, Jurisdiction *23(2d Ed.) p. 8, §2a. Under §35 of the Act the jurisdiction of the court must be invoked by the verified accusation.
“If the jurisdiction of the court is derived from statutory authority, in a proceeding not in accordance with the ordinary proceedings of the common law or the established usages of equity, then, in such cases the rule is the more strict, and the facts conferring jurisdiction must appear of record. And where the statute prescribes the grounds for the exercise of jurisdiction in the particular action, such grounds must be set forth in the petition, warranting such exercise, and the necessary jurisdictional facts must appear, or the judgment will be void, even in a collateral attack.”
¶20Many times this court has held in proceedings to contest elections, which were purely statutory and unknown at the common law, that if the proponent fails to allege himself within the statute by stating some statutory ground, the trial court is without jurisdiction. Stinkard v. Hunter (1936), 209 Ind. 475, 199 N. E. 560; Gossard v. Vawter (1939), 215 Ind. 581, 21 N. E. 2d 416, supra; State ex rel. Wever v. Reeves (1950), 229 Ind. 164, 170, 96 N. E. 2d 268, supra.
¶21A failure to state a cause of action under certain circumstances may fail to confer jurisdiction. Within the past seven months this court unanimously held such to be the case in State ex rel. Busick v. Ewing (1951), 230 Ind. 188, 102 N. E. 2d 370, 372, supra. Here we held the trial court without jurisdiction to *25appoint a receiver for the property of an individual where plaintiff did not allege any lien or special interest in the property, and said, “The trial court did not have jurisdiction in the case at bar to appoint a receiver for the property of an individual.”
¶22Nor are we wanting for authority from other jurisdictions in impeachment cases where the proponent has failed to state a cause of action under the statute. When no cause of action is stated, the trial court has no jurisdiction. Siebe v. Superior Court (1895), 114 Cal. 551, 46 Pac. 456; State v. Beazley (1926), 77 Mont. 430, 250 Pac. 1114, supra; Jones v. Eighth Judicial District Court (1950), 67 Nev. 404, 219 P. 2d 1055, supra.
¶23Even assuming the reasoning in State v. Perry Circuit Court (1933), 204 Ind. 673, 185 N. E. 510, that the trial court had jurisdiction to first determine its own jurisdiction, is correct, in this original action the trial court did overrule the relator’s challenge to the jurisdiction of the court. Here the trial court has already decided it had jurisdiction when it had none. Nor has this court in recent years adhered to any rule that the question of jurisdiction should first be presented to the trial court before a writ of prohibition may issue. State ex rel. Busick v. Ewing (1951), 230 Ind. 188, 102 N. E. 2d 370, supra. It is difficult to see how a trial court can have jurisdiction to pass on its own jurisdiction when it has no jurisdiction of the subject matter, when the issue is raised by petition for a writ of prohibition. Nor could the facts attempted to be stated in the verified accusation against the relator be amended to state a cause of action under the Constitution. The facts stated do not constitute negligence, nor can any artful use of words make out a case of negligent refusal or neglect to perform the *26official duties pertaining to relator’s office. If, as stated by respondents, the acts constitute a crime, there is no reason why the relator could not be impeached by a grand jury accusation, which would entitle relator to a trial by jury.
¶24When a trial court assumes jurisdiction when it is lacking, it is highly desirable from the standpoint of expeditious and economical administration of justice to have the matter decided by prohibition rather than permit the trial court to proceed with the expenses of a trial, and decide the same question later by an appeal. My experience has been that the briefs in original actions are just as helpful to the court as the briefs on appeal. I concur in the holding that the temporary writ of prohibition should be made permanent.
¶25Note.—Reported in 106 N. E. 2d 441.
¶26 “Any Judge or Prosecuting Attorney, who shall have been convicted of corruption or other high crime, may, on information in the name of the State, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.” Section 12, Article 7, Constitution of Indiana.
¶27 “In construing constitutional provisions, a rule of general acceptance is ‘that which is expressed makes that which is silent to cease.’ Gougar v. Timberlake (1897), 148 Ind. 38, 48, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. 487.” State v. Patterson (1914), 181 Ind. 660, 664, 665, 105 N. E. 228. Quoted with approval in State v. Dearth (1929), 201 Ind. 1, 12, 164 N. E. 489, and again quoted with approval in Robinson v. Moser (1931), 203 Ind. 66, 71, 179 N. E. 270.
¶28 “Another rule of construction is that where a statute is susceptible of two or more possible constructions, one of which will render it unconstitutional, that one will be adopted, if reasonable, which will rescue the act from unconstitutionality.” State v. Dearth (1929), 201 Ind. 1, 9, 164 N. E. 489.
¶29“In construing statutes, courts will seek a construction that avoids unconstitutionality.” State ex rel. Robertson v. Circuit Court of Lake Co. (1938), 215 Ind. 18, 29, 17 N. E. 2d 805.
¶30Even when no issue of constitutional power has been presented, this court has not hesitated to decide the question. Dept. of Financial Inst. v. Johnson Chev. Co. (1950), 228 Ind. 397, 92 N. E. 2d 714. Here it was conceded the regulation did not violate the constitution.
¶31Jurisdiction in equity is invoked by the pleadings, State ex rel. Surprise v. Porter Circuit Court (1948), 226 Ind. 375, 381, 80 N. E. 2d 107, and if the complaint has an omission of jurisdictional fact, the court is without jurisdiction and a writ of prohibition is proper,
¶32The statutory requirements have been held jurisdictional for many years in Indiana. Albee v. May (1846), 8 Blackf. 310; Farlow v. Hougham (1882), 87 Ind. 540; Borders v. Williams (1900), 155 Ind. 36, 38, 57 N. E. 527. This rule was well expressed by this court in State ex rel. Robertson v. Circuit Court of Lake Co. (1938), 215 Ind. 18, 23, 24, 17 N. E. 2d 805, as follows: “The common law made no provision for recount and contest of the ballots cast at an election. It is a familiar rule *24that statutes granting jurisdiction which was not given at common law are to be strictly construed, and one seeking to take advantage of such statute must bring himself clearly within its spirit as well as within its letter. Martin v. Schulte (1933), 204 Ind. 431, 182 N. E. 703, and cases there cited.
¶33“Sutherland’s Statutory Construction, Vol. 2, pp. 1048, 1049, secs. 565, 566, announces the rule as follows:
“ ‘A statutory remedy or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction; nor be made available or valid except on the statutory conditions, that is, by strictly following the directions of the act.
“ ‘A party seeking the benefit of such a statute must bring himself strictly not only within the spirit but its letter; he can take nothing by intendment.’ ”