State v. . Cansler

Reade, J. There can be no doubt that if one elected to an office takes possession of it, and engages in the exercise of its duties, and misbehaves as in this case — take unlawful and extortionate fees — he will be liable for such misbehavior, notwithstanding the fact that he failed to take the oath of office. The Legislature evidently so understood it, because for going into the office before taking the oath the statute subjects him “ to a penalty of $500, and ejection from office by proper proceedings for that purpose.” Bat. Rev., chap. LXXIX, sec. 4. But how can he be ejected from unless he is already in the office ? And again : “Any person presuming to execute the office of Justice of the Peace without qualhying as herein directed shall be guilty of a misdemeanor.” Bat. Rev., chap. LXIII, sec. 1. Here it is contemplated that he may be in office and executing the duties without having qualified; and that is made a misdemeanor. And it would be strange if one who is in office and exercising the duties thereof, could excuse himself for committing a crime in the manner of exercising the duties, by showing that he had committed another crime in getting into the office. In Wiley v. Worth, Phil. 171, Wiley claimed his salary of the rightful government after the war, upon the ground that although he had been in the office of Superintendent *445 of Public Instruction under the Confederacy, yet he had not taken the oaths, and was entitled to hold under his old election before the war. But we held that his taking or not taking the oaths, under the Confederacy, made no difference, that he was in office under the Confederacy, and that his, neglect of duty m not taking the oaths, did not avail him; and that he was not entitled to his salary out of the rightful government. There was a motion in arrest of judgment, for that the indictment did not charge the act to be done “ wilfully.” The charge is, that he “ unlawfully, corruptly, deceitfully extorsively, and by color of his office,” &c. We think that sufficient, at least, after verdict. It is entirely inconsistent with his having done it by mistake or ignorance or in anv other manner indicating innocence. There is no error. This will be certified. Pee. Curiam. Judgment affirmed.