¶1(concurring). — I concur in the judgment. The failure of the defendants to have inserted in the agreement alleged to have been made by them with Warren, a clause to the effect that eight hours should constitute a legal day’s work thereunder, did not constitute a refusal or neglect upon the part of defendants “to perform the official duties pertaining” to the office of park commissioner, within the meaning of section 772 of the Penal Code. The official duties referred to in that section, and the non-performance of which is made cause for removal from office, relate to official duties, the failure to perform which may injuriously affect the rights of some one of the general public, and the performance of which duties is made mandatory upon the part of the officer in the interest of the public. The omission here charged is not of this nature, because, if it should be assumed that section 3245 of the Political Code has any reference whatever to such a contract as is mentioned in the accusation, the omission to insert in such agreement a provision that eight hours should constitute a legal day’s work thereunder can in nowise affect the rights of laborers employed by the contractor, and who did not expressly stipulate to work move than eight hours each day; for the section itself, inde*591pendent of any such express provision, forms part of the contract, and the contract in such a case is to be read and interpreted as if it contained the express stipulation mentioned in the statute. Plainly, therefore, the rights of no one can be, or"were, affected by the omission complained of. If, upon the other hand, section 3245 of the Political Code does not include such a contract as the petition alleges was made by defendants with Warren, then clearly the omission to make the express stipulation referred to was not in any sense a failure to discharge an official duty.
¶2Looked at from any point of view, the petition fails to state a cause of action against the defendants.