State ex rel. Prince v. McCarty

Colb, C. J. We think the nonsuit cannot be sustained on the ground that the record does not show jurisdiction of the board to make the order. The defendant was. removed from the office of county clerk of Ashland county by an order of the county board dated February 13,1884, and the relator was appointed to fill the vacancy. The ground of removal, as stated in the order, was for official misconduct and wilful neglect of duty. It is objected on the part of the defendant that the order removing him was void on its face, because it fails to specify the particular act or acts which show that he had been guilty of official misconduct or neglect of duty. It is said that these facts should be stated with such fulness and precision that a court could [165] say, as a matter of law, that tbey justified the board in removing him from office, if established by proof. The charges which were made were in writing, and were filed with the county board, and clearly set forth that the defendant as clerk refused and neglected to obey the .orders of the board in that he refused to execute and to affix the seal of the county to the instruments, which are fully described. It was the duty of the clerk to sign all orders for the payment of money directed by the board to be issued, and to authenticate instruments by affixing the seal of the county; consequently we are inclined to hold that the charges and order sufficiently specify “ the cause or causes ” of removal to meet the requirements of sec. 974, E. S. But the nonsuit was right, because it appeared the relator had failed to qualify within the time prescribed by statute. The relator himself states that he was informed of his appointment by the chairman of the board, on the day the order was made or the day after. He demanded of the defendant the books, papers, and records appertaining to the office. It appears, however, that his official bond was not filed until the 25th of March, 1884. The statute clearly provides that before he entered upon the duties of his office, and within twenty days after receiving official notice of his appointment, he should execute and deposit his official bond, and within the same time take and subscribe the oath of office. Sec. 701, E. S. A neglect or refusal to do these things within the time prescribed creates a vacancy in the office. Sec. 962, E. S. The relator was appointed to fill an unexpired term. He states that he was informed by the chairman of the board of his appointment on the day the order was made or the day after. He should have qualified within the time prescribed by law. State ex rel. Ames v. Southwick, 13 Wis. 365. It is said that the relator made and subscribed both the official oath and bond in due form, and that the bond was approved by the proper officers. The [166] bill of exceptions does sbow that a bond was executed and approved, but. wbat was tbe date of approval does not appear; also that an oath was taken on tbe 16tb of February, 1884. But tbe indorsement on tbe bond shows that it was not filed in tbe office of tbe county clerk until tbe 25th or 26tb of March. Tbe oath was filed on tbe latter day. This fails to show that tbe statute was complied with. But it is said tbe relator was under no necessity to file bis oath of office and bond under tbe circumstances, nor was be required to do so. It is claimed that be could qualify under see. 3471, R. S., after judgment of ouster against tbe defendant, with tbe same force and effect as if be bad qualified tbe day of bis appointment. We cannot adopt that view of tbe section. It appears that this action was not commenced until December 13, 1884; and tbe term for .which tbe relator Avas appointed expired on tbe first Monday of January, 1885, long before this action was tried. It is very apparent from tbe language of sec. 3471 that it was not intended to apply to a case like this. Tbe respondent, having been elected to tbe office, bad tbe right to bold it until bis successor was qualified. Sec. 698, R. S. By the Court.— Tbe judgment of tbe circuit court is affirmed. LyoN, J., took no part.