The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1913-03-05

often couched in most explicit Ian
guage, arc usually construed to be di-
rectory and not mandatory"
To support this rule. he cites a num-
American Jurisdictions. lie says fur
Their:
"a failure to give the bond within
the time prescribed does not, there-
fore. tpso facto work a forfeiture"
n cites a large number of cases from
some of the principal courts Of this
country See Mechem on Public OFF,
GERS. Sections 265 and 266.
There according to these authorities
is nothing in our statutes which u
thorizes any power in this state to per-
eihptorily declare an office vacant for
the failure of the incumbent to file a
bond within the time fixed by the stat
utes. AT the most, such failure would
De only ground for commencing custer
p.oceealngs; and. even after proceed-
lngs were brought and before judg-
ment OF custer. the officer would under
ordinary circumstances be allowed to
file his bond and retain the office.
in his work on public off,
GERS. says concerning this point, that's:
Ever though the statutes expressly
provides h a upon "A failure to give
the bond within the time prescribed
the office shall be deemed vacant and
may be filled by appointment. it is gen.
orally fod that the default is a ground
TOR forfeiture only and not q forfeiture
ipso factor. and that if, notwithstand-
ing his default, the state of other pow
er sees fit to excuse the delinquency
by failure to commence custer pro.
ceeedings prior to filing of the official
bond or oath the defects of his title
are cured. and it is converted into a
title de jure upon his full compliance
with the statute"
This statement of the law is sus-
tanned by many of the leading Ameri-
can courts. Throop on Public OFF,
GERS. sections ia, lays down the rule
that:
Where a statute fixes the time,
within which the official oath must
be taken. or the official bond given,
the weight of the American authors
ties is decidedly in support of the doc
trlne. that the provision respecting
the time is directory. although the
statute declares hat the office is for.
feited by the default; and that. n
less the statute expressly declares that
the failure to take the 9th or. to give
pond, by the time prescribed, ipso fac
to vacates the Office, the oath may
be taken and the bond given at any
TIME afterwards. before Judgment Of
custer upon an information in the ma
lure or quo Warranto. or other legal
declaration that the office is thereby
vacated"
The contrary view is however sup
ported by the leading cases in Califor.
MIA, Kansas. Florida. and virginia.
which hold in constituting a statute SIM
ilar to ours. that it is mandatory and
NOT directory n that the failure Of
the officer to comply with the law as
to filing his oath and bond within a
fixed period Of time ipso factor for
feits the office any that an appoint.
ment may be made without any custer
proceedings having been instituted, In
the Ease of the state of Washington, ex
rel. +. Fl. Lysons. Apt. VS.. G. c. Ruff,
Washington in constituting a statute
practically identical with sections 422
r. G. 1905. tntimates in the following
language that had the state of WASH
ington on its statute books such as
section AIS r. c. 1906, it would be a
strong argument in favor Of a manda.
tory construction.
a single section that a person must
qualify within fifteen days and that
II he did not do so. his Office should
be vacant. there would be much great
er force in the argument of the relator
than under the law as it stands"
ihere Is also a strong defending
opinion in this case written by Judge
"AbGlI IN that Il SlI1li2F
section to 422. r. c. of 1905 is manda-
tory and self-executing.
Recommendations.
With reference to the failure Of the
foregoing officers to comply with the
directions of the law. we can find no
more suitable words than the following
quoted from the opinion of Judge Dun
bar of the state of Washington, in
Book Is. L. r. A. page 143:
"Oficers are elected not for the BEN
etit of individuals. but for the benefit
of the community; and. if an officer is
so careless of the requirements of the
law under which he is elected that
he neglects to qualify. it is a fair in
dication that he will be neglectful in
the transaction of the duties of his
Office"
We further find from our cxamina-
ton in this matter that some of the
state officials have grossly neglected
to comply with the law regarding the
filing of their bonds and oaths Of of.
flee. also
That the state auditor has neglected
his duty in issuing warrants for salary
to state officials when he had no posi-
tive proof that they had qualified for
office according to law: also
That the present secretary Of state
has accepted for filing bonds Of Off
Gals according to the affidavit of the
deputy secretary of state that were
not properly approved as per the rec
ord indicated on saio bond, and that
former secretary Of state has been
negligent as to delay in turning over
bonds to the state treasurer for filing,
and also accepting bond for record
that was very irregular and which did
not comply with the law. We will
further say that the present secretary
Of state has greatly assisted us in max
ing this examination and that already
he has inaugurated improved methods
as to the keeping Of records in his
Office with reference to this matter.
We will further all your attention
to section SO. revised codes for 1905,
which provides:
That the governor is to supervise
the official conduct of all executive
and ministerial officers. and to see that
all offices are filled and the duties
thereof performed. or in default there
Of. apply such remedies as the law
allows"
Your committee has had insufficient
time to examine the deficiencies and
irregularities covering the whole PEI
Rod which was provided in the reso-
luton with respect to the filing OF
oaths and official bonds by state Off
cials, therefore. the matter covered in
this report date only from January I,
1911.