Barnett v. Hart

■Opinion op the court by CHIEF JUSTICE GUFFY — Afitrming. ■ It is substantially alleged in the petition; That the defendant, now appellee, was the duly elected and acting presiding judge of the Henderson county court. That at the general election in November, 1901, the plaintiff (now appellant) Barnett, was duly elected to the' office of magistrate of the Third magisterial district of said county, and was duly commissioned by the governor of The State (said commission was filed therewith). That on Tuesday, the 7th, day of January, 1902, he tendered to the defendant, Hart, as said county judge, in open court, his commission as such magistrate, and offered to take the oath required by law, and requested said oath to be administered to him, and 'tendered to the- said county judge his bond as such magistrate, as required by law, in due form, with W., T. Benton as surety. That' said bond was sufficient' and ample, and in all respects conformed with the requirements ofl said statute, in such case made and provided. That on Monday, the 6th of January, 1902, being the first Monday in January, 'he was sick in bed, and unable to leave his bed, which fact he, on the 7th of -January, made known to the defendant. Nevertheless' said defendant failed and refused, and has since failed and refused, and noyv fails and refuses, to rec-ognize the plaintiff's said commission, -or to accept said bond,'or tq administer said, oath, or permit said plaintiff to [731] qualify as such magistrate. Wherefore the plaintiff prays -for judgment of this court requiring the defendant to recognize said commission, to accept said bond,' to administer the oath of office to the plaintiff 'and permit him to qualify as such magistrate, for his costs, and proper relief. The commission referred to is dated the 18th day of November, Í 901. The appellee entered his appearance to the action-, and filed a demurrer to said petition, which demurrer was sustained by the court, and; plaintiff declining to. amend, the petition was dismissed absolutely, and judgment for costs rendered in favor of the defendant; to all of which the plaintiff excepted, objected, and prayed- an appeal to the court of appeals, -which was granted. The chief grounds of the demurrer1 are because said petition shows that plaintiff did' not execute his official bond and take the oath of office on or before the first Monday in January, 1902, the date on which the'term of office of said magistrate began. The question for decision is whether or not it was the duty of the county judge to permit the appellant to execute bond and take the oath of office at' the time that he (plaintiff) applied to the county judge so to do. It is provided by section 99 of the present Constitution- that a justice of the peace shall be elected in each justice’s district, who shall enter upon 'the discharge of the duties of his’ office on the first Monday of January next after his election. Section 1081, Kentucky Statutes, provides that each justice shall be a conservator of the peace, and before he enters upon the discharge of the duties of his office shall take an oath to faithfully discharge the duties thereof, and shall execute a bond, with sureties, to be approved by the county judge, to the effect that he will faithfully discharge all the duties of his-office. The bond shall be filed and recorded in.the county clerk’s office, and ah entry made upon -the [732] order book of the county court showing that the bond was executed and approved, and giving the names of the sureties therein. Section 3755, Kentucky Statutes, reads thus: “If the official bond is not given, and the oath of office taken, on or before the day on which the term of office to which ■a person has been elected begins, or in cases of persons appointed to office within thirty days after such person has received notice of his appointment, the office shall be com sidered vacant, a¡nd he shall not be re-eligible thereto for two years.” It is the contention of appellant that the court had no right, under the facts of this case, to determine that ithe appellant was not entitled to the office, and that the Legislature did not intend that so haráh a construction should be put upon the statute, and we are referred to Patterson v. Miller, 2 Metc., 193, and Schuff v. Pflanz, 99 Ky., 97, 18 R., 25, 35 S. W., 132, in support of his contention. The first-named case seems only to have held that the county court had no power to inquire into the eligibility of a person holding a certificate of election and applying to be qualified. We fail, however, to see that the case supra at all effects the question involved in the case at bar, nor do we think that the later case in 99 Ky., 35 S. W., is in conflict with the decision of the circuit couirt in this case. In the case supra, Pflanz had executed for the year 1895 the several bonds required by law, but he 'had not executed an additional bond, as the law required in the county court, at the time required by law. It is true that the statute (section 1130) provides that the sheriff shall, on or before the first Monday in January next succeeding Lis election, ■and on or before the said day annually thereafter, enter into ■bond, with surety, flor the faithful performance of his duty. Section 1131 provides that on failure of the sheriff to give bond and qualify as hereinbefore provided he shall forfeit [733] his office, and the county court may appoint a sheriff to fill the vacancy until a sheriff is elected, or it may appoint a collector for the county of all moneys due the said county, etc. The court, in substance, held that, inasmuch as Pflana had qualified under his election by executing all the bonds required to be executed prior to 1896, the county court had a right to permit him to execute the additional bond after the first Monday in January, 1896. It will thus be seen that a very different question was. under consideration in the case supra from that involved in the case at bar. It was held in Bartly v. Fraine, 4 Bush, 375, that the county court had the constitutional power to remove the sheriff from office for failing to give new bond, but the question of removal from office is not necessarily the question involved on this appeal. The suit brought by appellant is essentially a' suit to obtain a mandamus against the county judge to compel him to permit plaintiff to execute the bond required by law. The case of Lowe v. Phelps, 14 Bush, 642, was an action to compel the county judge to permit the sheriff to execute his bond after the date which he was by law required to execute it. This court, in discussing tlie question, said, in substance, that, if the sheriff failed to givd bond on or before the first Monday in January next succeeding his election, as prescribed by the statute, there is no law making it the duty of the county judge to accept his bond after that date, and therefore a mandamus would not lie against the county judge to compel him to accept a bond tendered after that day. In Com. v. Yarbrough, 84 Ky., 496, 8 R., 483, 2 S. W., 68, it was held.that a sheriff’s bond executed after the first Monday in January wqs void at least as to the sureties therein. It' will thus be seen that the county judge in this case had no power to administer the oath, or -accept the bond tendered or offered by the appel [734] lant, and it would seem from the opinion hereinbefore referred to in 84 Ky., supra, that, if the defendant ha'd accepted the bond, the same would have been void, and of no effect. We have nothing to do with the harshness of the law, if, indeed, it was harsh, which can not be fairly said, als we think, for the appellant had from the time he received ■his commission until and during the first Monday in January to comply with the statute, and, there being no provision authorizing the county judge to take the bond at a later date, it seems to ns that the judge could not lawfully or properly accept or approve the bond after the first Monday in January. Judgment affirmed, Whole court sitting.