Andrews v. State ex rel. Covington

Cooper, J., delivered the opinion of the court. The facts disclosed by the petition present a case in which it would be eminently proper for the state to proceed against the appellant, whose term of office expired on the first Mon [746] day in January, and who is exercising the functions of the offices of clerk of the circuit and chancery courts of Quit-man county without shadow of right. Appellant was elected to said offices under the constitution of 1869, and, by § 19 of article 6, the term of office was limited to four years. Section 396 of the code of 1880, by express declaration, applies only to terms of office “ not otherwise provided by law.” But the terms of office of the circuit and chancery clerks are u otherwise provided for by law,” viz.: by the fundamental law, the constitution. Section 136 of the constitution of 1890, refers to officers elected under its provisions. It has not the effect of extending the terms of office of persons then in office. The terms of officers extended by the convention was by ordinance; and by § 284 it was declared that all other officers should hold until the expiration of the time for which they were respectively elected or appointed. But, while we think the appellant has no right to continue in office, we cannot assent to the proposition that the present action is one in behalf of the state to evict him therefrom. This action is manifestly brought as a private suit by the relator, under § 2587 of the code, for the purpose of trying his right to the offices of clerk of the chancery and of the circuit courts of Quitman county. As such it must fail, for the reason that appellee has not shown himself to be legally entitled to be inducted therein. By his demurrer to the>plea of the defendant, he admits that he was not a qualified elector of the state at the time of his election, nor at the time of the institution of this suit, and, not being such elector, he is, by § 250 of the constitution, ineligible to office, that section being that “ all qualified electors, and no others, shall be eligible to office, except as otherwise provided in this constitution.” There is no other provision relative to the offices relator claims the right to hold. • But relator’s petition was also subject to demurrer. He shows by it that he has not qualified himself (if otherwise [747] competent) to enter into the discharge of the duties of the office by having given an official bond approved by the proper authorities, as the law requires. The law requires that one desiring to enter upon the offices named in the petition shall, as a condition precedent thereto, execute and have approved by certain officials designated, an official bond for each office. The tender of a good bond, if rejected by the approving officer, cannot be held to be a compliance with this statutory condition. Nothing short of what the law requires is sufficient. Judgment reversed, the demurrer sustained and petition dismissed.