
    The State of Ohio ex rel. Witham v. Nash, Governor, et al.
    
      Infirmary director not required to give bond before first Monday in January, tohen.
    
    An infirmary director is not required to give bond before the first Monday of January., when his- term of office begins, but must give bond before entering on the discharge of his duties as such infirmary director.
    (Decided February 7, 1902.)
    Mandamus.
    The relator says that the defendants, are the governor and secretary of state. That “on the 5th day of November, A. D., 1901, one Thomas W. Hill was elected to the office of infirmary director of Clermont county, Ohio, for a term of three years to begin on the first Monday in January next after his election. A commission was duly issued to said Thomas W. Hill by the defendant herein, and the same was delivered to him by the clerk of the court of common pleas of Clermont county, Ohio, on the first Monday in January, A. D. 1902, but said Thomas W. Hill failed and neglected to give a bond to the state of Ohio for the faithful performance of his duties upon said day, it being the sixth day of January, A. D., 1902, or upon any day prior thereto, and neither did he file or cause to be filed with the board of commissioners of said county upon said day or any day prior thereto for their approval a bond as aforesaid, but attempted to enter upon the discharge of the duties of said office on the sixth day of January, A. D., 1902, without executing or filing any bond as aforesaid.
    “Relator further says that said Thomas W. Hill, on the seventh day of January, A. D., 1902, executed to the state of Ohio a bond for the faithful performance of his duties and presented the same to the prosecuting attorney of said county for his certificate as to its sufficiency who refused to approve the same because not filed or presented on or before the first Monday in January, A. D., 1902, and before the said Thomas W. Hill entered upon the discharge of his duties. Said bond was filed in the auditor’s office of said county on the seventh day of January, A. D., 1902, and on the fifteenth day of January was presented to the board of county commissioners of Clermont county, Ohio, for their approval who refused to approve the same' for the following reasons which were duly entered on the journal of said board, to-wit: “Phis day Thomas W. Hill who was elected to the office of infirmary director of Clermont county, Ohio, at the November election, A. D., 1901, presented to the board for approval, a bond for the faithful discharge of his duties, and it appearing from an inspection of said bond that the same was not executed nor filed in the office of the board until the seventh day ©f January, A. D., 1902, and it further appearing that the certificate of the prosecuting attorney as to the sufficiency of said bond was not entered thereon as required by law, the board thereupon refused to approve said bond.’
    “Thereupon the board caused to be spread upon their journal a resolution declaring said office vacant, and appointing relatpr to fill said vacancy of which the following is a copy, to-wit: ‘It appearing to the board that Thomas W. Hill who was elected to the office of infirmary director of Clermont county, Ohio, at the November election, A. D., 1901, has failed and neglected to execute and file his bond for the faithful performance of his duties on or before the first Monday in January, A. D., 1902, as required by law, and it further appearing that by reason of his so failing to qualify and file said bond as required by law, there is now a vacancy in the office of infirmary director of said county. On motion of W. H. Wood, seconded by John Sutton, Mr. C. P. Witham is hereby appointed to fill said vacancy.’
    “Relator further says that said Thomas W. Hill was in his usual health and fully able to execute a bond prior to the first Monday in January, A. D., 1902, and the board of county commissioners were in session in said county every two weeks from the November election, A. D., 1901, to the first Monday in January, A. D., 1902, yet the said Thomas W. Hill failed and neglected to file a bond as aforesaid during said period.
    
      “Relator further says that on the sixteenth day of January, A. D., 1902, he forwarded by mail to defendant, Hon. L. C. Laylin, secretary of state, at Columbus, Ohio, a duly certified copy of the foregoing resolution appointing relator to fill said vacancy in the office of infirmary ‘director of said county, together with a fee of five dollars therefor asking that upon the filing of said certified copy of appointment as aforesaid that the defendants issue to relator a commission to fill said vacancy to which relator has been appointed as aforesaid.
    “Relator further says that the secretary of state duly received said certified copy of the foregoing resolution appointing relator to fill said vacancy, yet the defendants refused and neglected and still refuse to issue a commission to relator to fill said vacancy, although requested so to do.
    “Relator further says,that he is without remedy in the premises unless it be afforded by this honorable court.
    “Wherefore relator prays a writ of mandamus issue out of this court requiring defendants to show cause why they should not issue a commission to relator to fill vacancy as aforesaid, 'and for such further relief as is just and proper.”
    The defendants demur to this petition for the reason that the same does not state facts sufficient to warrant the relief therein prayed for.
    
      G. B. Nichols, Prosecuing Attorney, and W. F. Roudebush, for the relator.
    
      George W. Huliclc; Louis Hicks and J. R. WoodHef, for defendants.
   By the Court:

An infirmary director must give bond “before entering on the discharge of his duties.” Revised Statutes, section 960. In this respect the law differs from that governing the bond of a sheriff, which prescribes that a sheriff shall give bond “within ten days after receiving his commission and before the first Monday of January.” State ex rel. Poorman v. Commissioners, 61 Ohio St., 506. The term of office of an infirmary director begins on the first Monday in January; but the actual discharge of the duties of such officer does not necessarily begin with his term. The petition does not show that Hill performed any official duty prior to the giving of the bond on January 7, 1902, which was the day after the first Monday in January; but it does show that the board of county commissioners refused to approve I-Iill’s bond solely because it appeared from the bond that it was not executed nor filed in the office of the board until the 7th day of January, 1902, and that the prosecuting attorney had not certified the sufficiency of the bond for the same reason. This was not enough to authorize the commissioners to consider the office va.cant, under Revised Statutes, section 19, and to proceed to fill the vacancy, under Revised Statutes, section 959. The demurrer is therefore sustained and the

Petition dismissed.

Wiluiams, Burket, Spear, Davis and Si-iauck, JJ., concur.  