The Worthington advance. [volume] (Worthington, Minn.) 1874-1908, 1878-04-18

makes, in last weeks
ADVANCE, some very frank admis-
sions, and in connection, uses queer
logic and makes erroneous quotations
from the laws in order to prove that
our County Treasurer is holding his
office legally. II +. Z.
In the first place, he represents that
the law gives him until the first OF
March to file his official oath and bond.
1t clearly does not do amy such thing.
1t says he shall, before entering upon
the duties of his office, file his official
oath and bond with the Register of
Deeds. In connection with this, in the
same chapter, and in the section immc-.
diately following, it says, 'he shall file
his oath and official bond as required
by the preceding section on or before
the 18th day Of january, and his rcfus-
al Or neglect to do SO shall be deemed Il
refusal to serve"
Now, surely this does not leave any
thing to be done in the matter after the
18th Of January, except the approval OF
his bond, which is clearly required be-
fore lie enters upon the duties of his
office.
lie admits, land correctly too,) that
a refusal or il neglect to qualify within
the time prescribed Ivy law creates Il
vacancy; that the County Board had
then the right to appoint. AS they
neglected to do SO, lie infers that the
right to hold the Office again reverts to
the former claimant. by what course
of reasoning, or Ivy what authority he
arrives at these conclusions lie does not
condescend to inform us.
If the Office was vacant on the 10th
of January and he admits it, certainly
it would remain vacant until it was
properly filled by legal appointment us
the law directs.
The matter is not left to the discre-
tion of the County Board, but the law
itself declares the office to lie vacant.
We ask again, would any showing
that the claimant could make at Il fu-
ture time of willingness to serve
change the edicts Of the law?
lie says an officer of this village went
through his term Of Office without Civ
ing bond or taking the oath of office,
and assumes that such action was val
case. With regard to that Office, there
making it vacant OH account Of such
neglect.
He cites decisions Of courts in cases
similar to the one above mentioned
that do not apply in this case, because
the especial provision of law making
the office vacant in case Of failure or
neglect is not 50 specific nor so posi-
tive i'll its application to any of them,
as it is with that of County Treasurer.
There is All especial provision Of law
applying to tie custodian Of public
funds i'll addition to the provisions of
the general laws which apply to other
cases.
lie says that Judge Dickinson held
correctly in Il case in this county ''tiat
the word ''s|Iall'' us used in the stat
utes, is simply "directory.' That was
in the case above mentioned where the
law had not III specific terms declared
the office vacant. In that cas' the Of
fetal bo;r could have declare the Of
flee vacant, but had neglected to do so.
In this case, they clearly had nothing
to 90, or to say about it, except to APP
point to fill the vacancy, and the law
clearly points out how that shall he
done. lie does not claim nor does any
one else that it's requirements have
been complied with.
lie takes the ground That the bond
must be approved ut the Janu;lry meet
ing of the County Board. We find
nothing to Justify such 4 conclusion
and us the Board was not in session.
the bond could not have been presented
nor approved prior to the 23t!l of Feb
ruary.
We have not been able to f!:d that
there is amy set time for the approval
OF the bond except that it must l,a ap-
proved before he enters upon the duties
OF his office. But he is required to file
his bond with the r. gister Of Deeds or
or before certain date us above men
toned, land lie could do that whether
the board were in session or not SUBJ
ject Of course to the action of the board
ut q future meeting. In reference to
legal precedents he s.ys: ''When the
law says all officer mag do certain
thing, it means that he mast do it, if
the rights Of II, public or third party
require it," III this case, the rights of
the public require it.
''When it says one shall do a certain
thing, it is merely directory aud means
that lie mag tlo it. unless the failure to
do it would result in an injury to the
public or some third party. In this
case, it could result i'll all injury to the
public.
His 10 ldsmen are sureties for the
faithful discharge of his duties us il L.
gally qualified public officer. They
lave signed his bond under the repre-
sentation, and with tie belief, that he
had Il legal right to hold tie Office.
They had Il right to believe that he
would not I've allowed to hold it other
wise. If in this they have been deceiv-
ed, If the party to whom the bond is
payable has been a party to this decep-
ton, it would give it the coloring OF ar
intention to defraud, and would justify
an application to the Courts by the en-
dorsers to have their names stricken off
OF the bond Cancelled, and if these were
shown to be the facts, there is not Il
court Of equity or of law that would re-
fuse it.
The County Board were cognizant of
the fact that his right to hold the office
had been forfeited prior to the date of
the bond, prior to the time when it was
signed, s'a|ed and acknowledged. The
date shows it. They were aware of the
fact that he had then by 4 neglect Of
official duty placed himself in Il posi-
ton which would (if known to his sure
ties have been a sufficient cause for de-
Ginning to go on the bond. And the
County Board had no moral or legal
right under the circumstances to accept
it without first notifying the sureties
that such was the fact.
An official bond partakes in some re-
spects of the nature of an endorsed
note. If any of the duties secured by
the endorsers are neglected, they are
entitled to notice as soon as the facts
becume known to the supervising hoard