Sheeley v. Wiggs

Bates, Judge, delivered the opinion of the court. This is a proceeding against the securities of a constable, who claim that they have been discharged from liability on their bond by the means stated. In August, 1838, James L. Minor was elected constable of Eulton township, in Callaway county, and the defendants became securities on his official bond. On the 6th day of February, 1860, the County Court of Callaway county made the following order: “ It appearing to the court that the bond of James L. Minor, constable of Fulton township, Callaway county, Mo., is insufficient, from the smallness of the penal sum in said bond, to cover and secure the amount of executions now in his hands, and sure to come to the hands of said constable; it is therefore ordered that said Minor, constable as aforesaid, be, and he is, required to give a new bond in the sum of ten thousand dollars; and it is further ordered, that said constable give said new bond by 11 o’clock A. M., on Wednesday next.” [404] And on the 8th day of February, 1860, the County Court made the following order: “ The sheriff having returned the notice to James L., Minor, constable of Fulton township, in Callaway county, served, by delivering to said constable a copy of the same, on the 6th day of February, 1860; and the said Minor having failed to show cause why a new bond should not be given; and furthermore, the said Minor having failed to give a new bond, as required by the order of this court, but makes default thereof; it is therefore ordered and adjudged that the office of constable of Fulton township, in said county, in the State of Missouri, is vacant, and that the clerk notify the magis trates of said township of this order.” Afterwards the justices of the township appointed another person constable, who gave bond, which was approved by the court. At the next term of the County Court an order was made, rescinding the orders of the 6th and 8th of February, and Minor gave an additional bond in the penal sum of five thousand dollars, with other securities, which was approved by the County Court. Minor continued to act as constable until the expiration of the term for which he was originally elected. And the matters, on account of which this proceeding was instituted, took place after all the action of the County Court above stated. The court below held, in effect, that the securities in the first bond were discharged from liability, by reason of the vacating of the office of Minor by the County Court, and the appbintment of another constable in his place. That decision we are now called to review. The third section of the act concerning constables, R. C. of 1855, p. 346, provides that, “ whenever any surety of a constable shall die, remove from the county in which he executed the bond, or become insolvent; or when, from any other cause, the County Court shall have reason to believe that the sureties to a constable’s bond are likely to become, or have become, insufficient, the court shall require the constable, at a time to be appointed, to show cause why a new bond shall not be given; and, unless such [405] cause be shown, the constable shall be required, within a given time, to enter into a new bond; and, in default thereof, the office shall be vacant, which shall be filled as other vacancies.” The fourth section provides that, “ after the approval of such new bond by the court, the sureties of the former bond shall be discharged from all liabilities that may thereafter accrue.” The County Court has no power to vacate the office of a constable, and no general power to do such acts as shall cause his office to become vacant. The statute above quoted gives to the County Court the only power it possesses in the premises, and the law must be strictly pursued, in order to make the exercise of the power there granted effectual. The orders of the County Court, copied above, do not pursue the law. The law declares that the court shall require the constable to show cause why a new bond shall not be given. This was not done at all; but the first thing done by the court was to require the new bond, and that not for the reason that the sureties in the old bond were dead, removed, or insufficient, but because the penal sum named in the bond was too small. This order was unauthorized by the law, and void. The order of the 8th of February, declaring the office of the constable vacant, was also void, because the County Court has no power to make it. It might make orders which, if not obeyed by the constable, would create a vacancy, but has no power to judge of or declare the vacancy. As the orders were nullities, the giving of the new bond by the constable was merely voluntary, and does not discharge the securities in the original bond. The judgment of the court below is reversed, and cause remanded. Judges Bay and Dryden concur.