
    The State ex rel. Poorman v. County Commissioners.
    
      Sherifffails to give bond — Before first Monday of January, after his election— Creates a vacancy.
    
    If one elected to the office of sheriff fails, without justification, to give an official bond before the first Monday of January next after his election there occurs on that day a vacancy in the office which the county commissioners should fill by appointment.
    (Decided January 16, 1900.)
    In Mandamus.
    The cause is submitted on demurrer to the answer and upon the agreement that the facts appearing in the pleadings shall be taken as conclusive for the purposes of final judgment. In substance those facts are that at the general election held on the 7th day of November, 1899, the relator was duly elected to the office of sheriff of Paulding county for a term of two years, to commence on the first Monday in January, 1900. On the 21st of November, 1899, his commission was duly issued and forwarded to the clerk of the court of Paulding county, where it remained until the second day of January, 1900. On the 20th day of December, 1899, the relator made application to the local agents at Paulding, Ohio, of the United States Fidelity and Guaranty Company of Baltimore, Maryland, for the furnishing of his official bond. The application was forwarded to the company on the 23rd day of December, 1899, and on the 29th day of December, 1899, the company at Baltimore signed and acknowledged the bond and mailed the same to its representatives at Paulding, by whom it was received at Paulding on the morning of Monday, the first day of January, 1900, and upon that day the relator signed the bond and it was approved by the prosecuting attorney, as required by law. The defendants, the commissioners, were in session at Paulding on Tuesday, the 2nd day of January, 1900. The relator on the first day of January went to the office of the board of county commissioners for the purpose of having them approve his bond, but the board not being in session the bond was not presented to them nor approved upon that day. Upon the day following, January 2nd, 1900, he presented the bond to the board of commissioners in session, but the board, although satisfied with the form and sufficiency of the bond, refused to approve the same because it had not been tendered prior to the first Monday in January, 1900, as required by law. The commissioners thereupon declared the office of sheriff vacant and proceeded to make an appointment to fill it. The object of the petition is to require the defendants to approve the bond.
    
      J. M. Sheets, Attorney General, and Snook, Corbett and Phipps for relator.
    As applicable to the undisputed facts, we make the following propositions of law, to-wit:
    First — Section 1203 of the Revised Statutes, which provides sheriffs’ bonds shall be given “within ten days after receiving their commissions, and before the first Monday of January next after their election,” is as to time of giving bond, directory only and merely because the bond in this case was not signed by the relator until Monday, January 1st, 1900, and not presented to the board of county commissioners until the next day for its approval, did not and coiild not occasion a vacancy in the term of office to which the relator was elected. Ohio ex rel. Epler v. Lewis, 10 Ohio St., 129; Ohio ex. rel. Kelley v. Thrall, 59 Ohio St., 368; Am. & Eng., 19 Sub., title 7, pp. 440-1-2; Duntly v. Davis, 42 Hun. (N. Y.), 229; Meechem on Public Officers, p. 166.
    
      Second — In the case at bar, construing the statute with literal strictness against the relator, the bond having been executed by the Surety Company on the 29th of December, became and then was a good and sufficient bond to the state of Ohio. R. S. 3641c, 2 Am. & Eng. Enc., 466#, Sub. Title E. N. 1, 5667t. And the condition of R. S. 1203 was thereby fully complied with.
    Third — The duty and power of the commissioners, under Revised Statutes 1203-1205 are ministerial only. Am. & Eng., v. 2, p. 4667i and N. 3 and 4.
    And it seems clear to us that they could not under the power conferred on them by statute, create a vacancy, but merely declare its existence, after its creation by an act or acts, omission or omissions of sufficient force and effect to produce that condition, and an attempt to create a vacancy by declaration and to fdl it by appointment thereto, of their own selection for that office instead of the person elected thereto by popular vote, is void and of no effect. Culver v. Armstrong, 77 Mich., 194.
    And even this attempted exercise of power was not made until after an unobjectionable bond was presented to said board for its approval.
    Fourth — The contention that the bond was not indorsed with the oath of office of relator, is made here for the first time, and was not made by the commissioners on the presentation of the bond as appears from the record as set forth in their answer, and for that reason is entitled to no consideration at the hands of the court, but were this not true, “The oath of office is a mere ministerial act, and not a condition precedent to entering upon the duties of the office, nor will the omission to take it by the principal in an official bond discharge the sureties.” Ohio v. Findley, 10 Ohio St., 51; 19 Am. & Eng. Enc., 443-444.
    Fifth — The statute, R. S. 1205 id., can not be held to operate against the relator until after the receipt of his commission, or some act of his going to show that he intended to postpone the giving of bond on an intention on his part not to accept his office. State v. Hadley, 27 Ind., 496.
    
      John W. Zuber; J. S. Snook and George B. Okey, for defendants.
    Much of the supposed conflict of case law on this subject has grown out of failure to properly distinguish the different questions which have been before the courts and the different statutes which have been under discussion. The cases may be divided into four classes:
    First — Those cases where the law neither declares the office vacant nor makes it the duty of some board or officer declare to a vacancy on the failure of the officer-elect to present his bond within the time prescribed by law and the.bond is approved after the prescribed time by the proper officer or board. In these cases the courts hold the bond good not because the statute fixing the time is directory but because the officer becomes a de facto officer and because his sureties are estopped from denying the validity of the bond. Westhaven v. Cline, 5 Ohio St., 36; City of Chicago v. Gage, 95 Ill., 593.
    Second — Another class of cases like those in Missouri, are those where the statutes contain a provision that the bond shall be filed within a certain time, but contain no provision whatever as to forfeiture. It is manifest that cases arising under such statutes as these can throw no light upon the question in controversy.
    Third — There is a class of cases where the officer elect has not qualified within time because there has been pending a case in mandamus, quo warranto or injunction, or because some statute has been enacted which after the expiration of the time for qualification has been declared unconstitutional. In this class of cases the courts have rightly held that the ofcer may qualify upon tlie termination of the suit or upon the statute being declared to be unconstitutional. Such is the case of State ex rel. v. Heffner, 59 Ohio St., 368. This class of cases is clearly distinguishable from the one at bar where the failure can be attributed to no other cause than the negligence of the relator. It is clear that decisions coming under any of the foregoing heads have no weight on the questions under discussion. Forwell v. Adams, 112 Ill., 57; Benoit v. Miller, 16 Mich., 56.
    Fourth — The fourth class of cases are those where the statute either provides that upon failure to give the bond within the time specified, the office shall become vacant or some board or officer shall declare a vacancy. In passing on statutes of this kind courts have almost uniformally held that the plain language of the statute must be followed. State v. Lansing, 64 N. W., 1104; Ross v. People, 78 Ill., 375; Falconer v. Shores, 37 Ark., 286; People v. Taylor, 57 Cal., 620; People v. Perkins, 85 Cal., 509; People v. Sherd, 100 Cal., 537; State v. Matheny, 7 Kan., 327; State v. Tucker, 54 Ala., 205; in rel. office of Atty. Gen., 14 Fla., 277; State v. Beard, 34 La., 273; Bennet v. State, 58 Miss., 566; Childrey v. Rady, 77 Va., 518; Owens v. O’Brian, 78 Va., 116.
    We contend that the language of the statute “the sheriff shall, before the first Monday in January next after his election, give bond to the state with two or more sureties approved by the county commissioners,” admit of no other construction other than that which the plain terms import, and that when the statute says “if the sheriff fails to give bond within the time above specified then said commissioners shall declare the office of such sheriff vacant.” It casts upon the commissioners of Paulding county the duty to declare said office vacant in as plain and concise terms as could possibly be used.
    Relator contends that because the bond was filed before the commissioners declared a vacancy he is entitled to have his bond approved. This is not true.
    First — Because section 19 of R. S. provides that on failure either to give bond or qualify within time he shall be deemed to' have refused to accept the office, and by its very terms declares the office vacant.
    Second — The answer shows that he did not take oath of office or have same indorsed on bond.
    Third — Section 1205 makes it the plain duty of the commissioners to declare a vacancy if he fails to give bond within the time specified by law.
    Fourth — We have not found a single case on which relator can base his contention, except cases where the matter came before the court upon a collateral issue such as a suit on the bond where it had been approved after time or on motion to quash some writ, and are no authority in the case at bar..
    Fifth — On the other hand, in each of the following cases, the bond was filed before the forfeiture was declared and before appointment of successor, and the question of the right to office was before the court either by mandamus or quo warranto, and the court held that the failure to file a bond in time had worked a forfeiture. Harris v. Tucker, 54 Ala., 205 (overruling 33 Ala., 674); State v. Beard, 34 La. 273; State v. Hopkins, 10 Ohio St., 509; State ex rel. Epler v. Lewis, 10 Ohio St., 135.
   By the Court:

The result of Poorman’s failure to give bond before the first Monday in January, 1900, and the duty of the defendants in consequence of such failure are determined by section 19, 1203 and 1205 of the Revised Statutes. By the first of these sections it is provided that “Any person elected or appointed to an office of whom bond or security is by law required previous to the performance of the duties imposed on him by his office, who refuses or neglects to give such bond or find such security agreeably to and within the time for that purpose prescribed by law, and in all respects to qualify himself for the performance of such duties, shall be deemed to have refused to accept the office to which he was elected or appointed, and the same shall be considered vacant and be filled as provided by law.” Section 1203 provides: “The sheriff shall, within ten days after receiving his commission, and before the first Monday of January next after his election, give bond to the state with two or more sureties, approved by the county commissioners * * * * Section 1205 provides: “If the sheriff fails to give bond within the time above specified, or fails to give additional sureties on his bond, or a new bond within ten days after he has received written notice that the county commissioners require such additional surety or new bond, then the said commissioners shall declare the office vacant and said office shall thereupon be filled as provided by law.”

The case before us presents no justification for the failure of the relator to comply with the requirements of the law, nor is the court able to relieve him from the consequences which the statute in plain terms affixes to his failure.

Demurrer to answer overruled and petition dismissed.  