State ex rel. Attorney General v. Matheny , 7 Kan. 327 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

This is an original proceeding in this court to remove the defendant from the office of county clerk of Wabaunsee county. Twenty causes of action are presented in the petition. We content ourselves with the examination of one. It appears from the testimony that defendant was elected to the office of county clerk of Wabaunsee county, at the general election in November, 1869 ; that he entered upon said office on the second Monday of January, 1870, that being the commencement of his term, and has ever since continued to hold the same; that prior to entering upon the duties of the office he executed an official bond, which was duly approved by the county treasurer, and took and subscribed the oath of office. It also appears that such bond and oath were not filed or deposited with the county treasurer until more than four months after he had entered upon the duties of his office. Oh. 25, Gen. Stat., p. 262, §40, concerning county clerks, provides that “ he shall, before he enters upon the duties of his office, execute and file with the treasurer of the county a bund.” The same chapter, p. 293, § 173, concerning county clerks and other county officers, provides :

“ Sec. 173. Every county officer named in this chapter shall before entering upon the duties of his office, and within twenty days after receiving official notice of his election or 'appointment, or within twenty days after the commencement of the term for which he was elected, execute and deposit his official bond as prescribed by law; and any such officer shall also within the same time, take and subscribe the oath of office prescribed by law before some officer authorized to administer oaths, and deposit the same with his official bond, to be filed and preserved therewith.”

And the same chapter, p. 294, §179, provides as follows :

“ Sec. 179. Every county office shall become vacant on the happening of either of the following events, before the expiration of the term of such office: * *- * Sixth: His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath and bond within the time prescribed by law.”

There can be no mistake as to the meaning of these statutes. Whatever may be the rule, independent of the statute, the plain provision of the law is, that not only a refusal, but a neglect simply, to deposit the official oath and bond within the time prescribed vacates the office. We may not add to nor take from the law. It may seem a matter of trivial importance whether a bond and oath, executed and taken, are filed within twenty or thirty days. But that is a matter for the legislature to consider. They have power to establish a rule. Having established it, our plain duty is to. enforce it. And though seemingly stringent there is wisdom in the rule. The bond of a public officer should be accessible to any citizen who may be injured by the wrongful acts of such officer. Its presence in the place appointed by law for its keeping should be enforced. If this rule be relaxed, and officers permitted to occupy public offices without filing their bonds, some citizen may suffer grievous wrong, and be remediless. Judgment must be entered in favor of the State, and removing the defendant from' the office of county clerk of Wabaunsee county.

It is perhaps due to the defendant to say that neither the omission to file the oath and bond, nor the other neglects complained of appear to have been willful, but simply the results of thoughtlessness or inexperience.

All the Justices concurring.