The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-03-12
SUPREME COURT DECISIONS.
IT, ported Weekly by Jenkins a Shot
well. AttOrneys-at-Gaw
OCTOBER TERN. 1850.
j. W. BENNETT ct al.

Va
State of Mississippi Use etc.
Appeal tom Circuit Court of Lincoln
county, Hon. A. G. Mayors. Judge.
Appellee brought this suit against J. d.
the sureties on his official bond. assigning
AS breach Of the bond the failure of Moore
to pay over to the county treasurer of said
county taxes collected in 1872. Apellauts
pleaded below:
First -'Statute of limitations,
Second--'That prior to I'd September.
1872, and prior to the collection of any
taxes for 1872 by Moore, principal in the
h,,,
Donu suou on' anu ai'er proper preiiml-
nary proceedings and notice for that pur-
pose before the board of SUPERVISORS of
Lincoln cou,,v n, .,,,;,o.;a arJ wv
"" "pp'io'''o" vi q. w.
pehhett ana NJ. Lowehthal, two OF the
sureties on said bond, the said Moore was
required by order of said board tn rive A
-, I'll . 1t. .., D. ~ .,
new pohu "s sherih OIL sald county ON said
"a September, 1872, which said Moore fail
ed to do, whereby the office of sheriff he
came and was v,.,n, ,,,or.,o,, c,;,,,.,,a
'"n'' gu" was vacant "i'o' s"ch iaiiurc anu
before the collection of taxes for said year,
and defendants were no longer responsible
ne suret;es N, tho ho,d suoJ an
"" '''0 ''N oA'
10 these pleas demurrers were inter
posed, which Were sustained. Issues were
;oinad IN other nIa,s Thora ,y,s yardi.t
49, r
anu judgment ior piaihtin' ana uei"hdah'
appeals, assigning for error the action of
the court in sustaining the demurrer to
'"e wv peas ""o'o 'i'ou
"A. Y. McNair Tor appellants.
II. ii. Thompson for appellees.
CooppR 7
~,
Hta-
The Code of 1871, 3l6, is as follows
SIN case the sureties, or any of them, of
any clerk, sheriff, TREASURER, constable, JUS
tice Of the peace or any other county Off
Ger, shall conceive themselves or himself
in danger of suffering by being such sur
ETY., they may petition the board Of SUPER
vis0rs, II in session. or by filing such Pc
tition with the clerk thereof If said board
shall, within thirty days, be in session, il
not, with the president thereof, to call
for relief in the premises; and on giving
two days notice to said officer Of the time
and place of hearing said petition, the said
board shall have full power to order that
the said officer shall give anew bond, with
other good and sufficient surcties, within
such reasonable time Ms said board may di-
rect, III penalty not less than the first bond
and conditioned according to law; and on
the giving of such bond and approval
thereof by the board, the former surety or
sureties shall be discharged from further
liability on their bond as to the perform
ance of all official duties, after the giving
of such new bond, and if such officer shah
fntl To. ,x.rstI 10,
give new bond, his Office shall thereby be-
come gdcaat, and such vacancy shall be GER
titled by the clerk of the board of superyi-
sors or other appointed power, AS the case
may require, and the office shall be filed
as In other cases of vacancy in county of
fees"
When this ease was before us at a former
time we held that when upon petition filed
by two of the suretfes for relief under this
section of the Code, the clerk of the board
erased the names of the petitioners from
the bond of the sheriff, which was then
signed by Matthews, who was accepted by
the board as Traditional security" the ef-
feet was neither to release the petitioning
suretics nor to bind Matthews. State VS.. |
Matthews, 81, NJ. /. The pleadings and ov-
dence then showed that upon the petition
Of the sureties no order was made by the |
board, requiring a new bond to be given |
by the officer, but that he, in response to |
the petition, came before the board and |
rendered Matthews as surety in the place
of those who had petitioned for relief, and |
thereupOn the board made an order releas-
ing petitioners and substituting Matthews.
The question now presented Is altogether
different; the plea sets up in bar to the ac-
ton that the officer was legally required by
the board to give new bond, which he
failed to do. What the facts might have
been shown to be by replication to this ;
Ann a I'm Al. |
rer admits them to be as the plea states
them. The statute declares that upon fail
ure or refusal of the officer to give the
bond required, "his Office shall thereby be-
come vacant, and such vacancies may be
certified by the clerk, and the
office filled as in other vacancies in county
Offices
What effect is to be given to this statu-
tory declarations Is the office vacated by
the failure OF the officer to make the new
bond, or does the statute merely declare
the existence OF cause for removay
In none of the cases which have been be-
lore this Court II was that the declaration OF
The vacancy by the statute does not iPso tdeto
'acate the Office, are there any authorities
cited or reasons given for the decision, and
we are unwilling to be led by them to limit
The effect OF plain statutory provisions. In
statutes courts must seek the
legislative VIII and give eneet 10 u.
Ihe words are 10 De read IN their ordl-
nary meaning. The Language OF the stat
ate is not ambiguous; the words are ''if the
)fiicer shall fail or refuse to comply with
laid order to give new bond, his Office
hall thereby become vacant" The failure
Or refusal Of the officer TO give the bond
ps0 (dctO vacates the Office. Nothing Is
'equired to be done by the State or any Of
Is agents to give effect to the declaration
" the statute. Treating the vacancy as alb
olute and existing, il is the duty Of its
fife IN nroeepd IN fill n "a I'm other |