The Worthington advance. [volume] (Worthington, Minn.) 1874-1908, 1878-04-04
THE TREASURER MA TT Err.

EDITOR ADVANCE: A Tax Payer il,
your last number makes some enquiries
AS to the validity of the Bonds of on,
County Treasurer and us tolis rightfu
possession of the Office. He appears tt
be entirely satisfied with the Juct, tia,
Thompson is in possession of the office
and is disturbed only at the possibilit,
that this fact did not occur in the rceu
lar order of law and might affect tie VII.
lidity of tile Bonds given.
My only motive in writing is to state
fairly and courteously, what iIr
Thompson and his advisers deem to bt
the law. If he or they are il, error, j,
isa short and simple proceeding to bring
the matter to Il determination by the
Courts.
Mr.. Thompson holds his office. by
virtue OF his election by the people. The
giving OF the notice Of election, posting
the registry lists, the swearing of the
Judges, the canvass of the votes, the
certificate of his election, his oath OF
office and the giving of the Bond, one
and all may be missing, and yet 10y vir.
tue of his election by the people lie is
entitled to the office, and once in pos.
session, all his actsar valid. All these
things above mentioned may be shown
10y other proof, or may be done ut any
time. a moments reflection will show
any one that they are for two purposes
onl y-As safe guards to insure il fair e.
lection, and proof Of the result, and rs
safe guards to insure Il faithful disctMg
OF the duties of the Office. An officer
OF this village, went through his term
OF office, without giving Il bond or tax.
ing the oath Of office. lie discharged
his duties faithfully or what NOM
ent is it now, that he did not solemnly
engage to do this, and furnish s,lreties
that he WOalu do this, ut tile O:tset. |
am not contending that they SHOULD be
omitted, but attempting to explain
their use and object. y Bond is of no
earthly use, unless All officer proves dir
elect in his duty.
When one is iii possession Of al Office
and acting us such officer under the
color of right, The validity of Ills acts
and his right to the office cannot he
questioned, in Il collateral proceeding
Oh action. In an action on the b md
the Court would not entertain Il defense
based on an alleged wrongful possess
ion of the office. These questions can
only be raised on 4 direct proceeding H.
gainst the officer to Dust him from the
office. The l5Ondsmen are responsible
for his acts as long us lie is actually
uischargillg the duties of the Office.
The law is well settled that an OIL
cial bond given after the strict time re-
~ roll Inv law .,.,11l
may be declared racunt, on failure to
take the oath and give the bond rcquir-
Ell, ut the time required, but if
no Lew appointment is made and
the proper officers after that time
accept the bond, the bond is valid, and
the officer may continue to discharge
the dutics.' IAN official bond is valid
though not executed until after the
term of the officer has expired" The
above are decisions OF the Supreme
Court Of Ohio, and know of no con-
tr:try rulings III any Court.
The peremptory word "shaU." seems
to trouble many people. Judge Dick
enson held correctly in !, case il this
county, that the words ''shall qualify
i'll ten days after election,' were dirtc-
tory merely and the doing Of it long af-
ter Chat time WIS sufficient.
The rule is Il very plain and simply
one. When the law says an officer
may" do certain thing, it means
that lie must" and ''silail' do it, il
rights of the public or third parties re-
uuire the doing Of it. When it says
one ''sllall' do Il certain thing, ut Il
certain time or place, it is directory
merely, unless the failure to do it 1T the
time, OF ut the place, would result in
an injury to the rights of the public OF
some third party
when no right or benefit to any one
depends upon the imperative use of the
word; ''slilll'' in !: statute is directory
merely" The words ''slG,Il'' and
''may'' in statute are read inter-
ci'lngeably us may best express the III.
tent OF the Legislature" So rules the
Supreme Court of Illinois.
In Wisconsin it is held; ''When no
substantial reason, why the thing 10y
statute required to be done might not
us well he done after the time required,
as before, 10 presumption that by al
lowing it to he 50 done, it might work
an injury Or wrong, the Court will
deem tie statute directory merely, and
assume that the intent WAS, that If not
done 1T the time, it may he done after
wartlS.'
The statute gives the Treasurer I'M
til lie enters upon the duties OF his Of
lice"s e. until March l, to give the
bond. It further provides that H.
''shalt' do it 10y Jany. 18th, but it no
place provides that Il rucoacy s..al oc-
eur Ivy f..ilure to Ito 50 by .0ny. l5h.
1t simply provides that this failure 81
to d by that day is suttic ent proof OF !,
refusal to serve, on which the Board
might, If they saw tit, electa successor.
The law Says it Shall lie ''dcemcd Il re.
tusal " which is quite II different thing
from declaring it ito be IL refusal.
10 give" Il Bond, requires some.
thing more than filling out, signing,
sealing, acknowledging and handing it
man,,ally to the Board. All these inay
b. done, and 10 Bond is ''given.'' The
Board must accept it, and this is done
by formally approving the Bond and
until this is done. This approval and
acceptance by the Board, can only be
done III Il regular convened meeting
and by vote OF the Board. II Thonp
son ''sIlall give Il bond by january -
uC i'tso uILh ClhIC uly W uO So .sittt liz
Board must he in session on that day. II
they adjourn over that day, and deprive
him ct the opportunity to do All aci
that is for their benefit, the law will moi
permit them to ''deem it Il REFUSAL
that Thompson did not perform III i'm
possibility. 10 say he should have pre-
sented the Bond on January 3, is me-
by the law which says lie need not d
So until the 18th.
Had the Board been in session on til,
18th, they could have ''tleemed it Il re
fus;l to serve" !. G. the non presel,t;,
ton Of /, Bond up to that date, :lnt
have elected Il successor. They might
have done SO ut any subsequent meet
ing, before he presented them the proof
by presenting them the Bond, that i,
tttct 1t WAS not IL refusal. They woult
lave no right to deem it i refusal. q,
gainst evidence that it WIS not 80 il
fact.
The reference to Bisse'l, page 2O7, il
simply begging the question. No on