
    The State, ex rel. Attorney General, v. James M. Matheny.
    Cotjxty Officer — Failure to file Official Oath and Bond vacates Office. The failure of a county clerk elect to file his official oath and bond with the county treasurer within twenty days after the commencement of the term for which he was elected, vacates his office.
    
      Original Proceedings in Quo Warranto.
    
    Matheny was elected county clerk of Wabaunsee county at the general election in 1869, for the term commencing on the second Monday of January, 1870, at which time he entered upon his duties as such officer. He executed an official bond, and took the usual oath of office, in proper time, but did not file the same with the county treasurer as required by §173, ch. 25, Gen. Stat., p. 293. On the 15th day of November 1870, A. Haneokd, Attorney General, filed in this court his petition or relation, praying for the removal of Matheny from said office of county clerk, alleging, as grounds therefor, first, that said Matheny had not qualified as required by law, but had usurped and intruded into said office, and held the same contrary to law; and secondly, that he had not “faithfully and skillfully discharged the duties of his said office,” and had therefore forfeited the same; and under this branch of the case the relator assigned some twenty acts of omission and commission, each of which it was claimed was cause for removal from office; but as the court declined to consider this part of the case, they are omitted. And for the same reason, all those parts of the briefs of counsel relating to the alleged misconduct of defendant, are omitted.
    
      Cox Keagg, for the relator:
    1. Every county officer must execute and deposit his official bond as prescribed by law; and be must deposit and file witb bis bond bis oatb of office : Gen. Stat., p. 293, § 173.
    Tbe bond and oatb of county clerk must be filed witb tbe treasurer of tbe county, etc., Gen. Stat., p. 262, §40.
    2. Every county office shall become vacant upon tbe refusal or neglect of tbe officer to deposit bis oath and bond of office within the time prescribed by law. Gen. Stat,, p. 294, § 179.
    Not having complied witb tbe provisions of tbe statute, tbe defendant has no right to tbe office, and judgment of ouster must be given against him.
    
      Martin, Burns Oase, for defendant:
    1. The petition does not state facts sufficient to constitute a cause of action. It is alleged that the defendant was duly elected to tbe office of county clerk; that on tbe 11th day of January, 1870, be entered upon tbe duties of bis said office, and ever since has and doth still continue to he such county clerk of said county. It then alleges tbe neglect and refusal to file or deposit witb tbe treasurer bis official oatb and bond as such county clerk for tbe space of four months after tbe time to file and deposit tbe same; and for these reasons it is .insisted that tbe defendant should be removed, etc. Admitting that this last averment is true, it is conceded that tbe office of county clerk became vacant, so far as tbe election of the defendant is concerned. Gen. Stat., p. 262, §40, and p. 294, § 179. But for tbe allegation that tbe defendant on tbe 11th of January, 1870, entered upon tbe duties of bis said office of county clerk, “ and ever since has and doth still continue to be such county clerk,” it must be presumed that tbe defendant was afterwards duly elected or appointed to fill the office.1 1 Greenl. on Ev. §§88, 92; Bid., §483.
    2. The defendant cannot be found guilty and removed from office for official misconduct unless it is proven that he willfully or corruptly refused or neglected to perform the acts or suffered the omissions of duty complained of. The State, ex rel. Keeler, v. Allen, 5 Kas., 213.
    The evidence in this case wholly rebuts the idea that any of the acts or omissions complained of were willfully or corruptly done or suffered.
   The opinion of the court was delivered by

Brewer, J.:

This is an original proceeding in this court to remove the defendant from the office of county clerk of Wabaunsee county. Twenty causes of action are presented in the petition. We content ourselves with the examination of one. It appears from the testimony that defendant was elected to the office of county clerk of Wabaunsee county, at the general election in November, 1869 ; that he entered upon said office on the second Monday of January, 1870, that being the commencement of his term, and has ever since continued to hold the same; that prior to entering upon the duties of the office he executed an official bond, which was duly approved by the county treasurer, and took and subscribed the oath of office. It also appears that such bond and oath were not filed or deposited with the county treasurer until more than four months after he had entered upon the duties of his office. Oh. 25, Gen. Stat., p. 262, §40, concerning county clerks, provides that “ he shall, before he enters upon the duties of his office, execute and file with the treasurer of the county a bund.” The same chapter, p. 293, § 173, concerning county clerks and other county officers, provides :

“ Sec. 173. Every county officer named in this chapter shall before entering upon the duties of his office, and within twenty days after receiving official notice of his election or 'appointment, or within twenty days after the commencement of the term for which he was elected, execute and deposit his official bond as prescribed by law; and any such officer shall also within the same time, take and subscribe the oath of office prescribed by law before some officer authorized to administer oaths, and deposit the same with his official bond, to be filed and preserved therewith.”

And the same chapter, p. 294, §179, provides as follows :

Sec. 179. Every county office shall become vacant on the happening of either of the following events, before the expiration of the term of such office: * *- * Sixth: His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath and bond within the time prescribed by law.”

There can be no mistake as to the meaning of these statutes. Whatever may be the rule, independent of the statute, the plain provision of the law is, that not only a refusal, but a neglect simply, to deposit the official oath and bond within the time prescribed vacates the office. We may not add to nor take from the law. It may seem a matter of trivial importance whether a bond and oath, executed and taken, are filed within twenty or thirty days. But that is a matter for the legislature to consider. They have power to establish a rule. Having established it, our plain duty is to. enforce it. And though seemingly stringent there is wisdom in the rule. The bond of a public officer should be accessible to any citizen who may be injured by the wrongful acts of such officer. Its presence in the place appointed by law for its keeping should be enforced. If this rule be relaxed, and officers permitted to occupy public offices without filing their bonds, some citizen may suffer grievous wrong, and be remediless. Judgment must be entered in favor of the State, and removing the defendant from' the office of county clerk of Wabaunsee county.

It is perhaps due to the defendant to say that neither the omission to file the oath and bond, nor the other neglects complained of appear to have been willful, but simply the results of thoughtlessness or inexperience.

All the Justices concurring.  