
    Thomason vs. The Justices, &c.
    1. A mandamus is not ordered, on the application of one for inductiorfinto' office on an incomplete inchoate title thereto; and therefore where Thomason had received a majority of the qualified voters for the office of sheriff, and applied to the county court to give bond and be qualified, he should have done and offered every thing on his part necessary to make his title complete.
    
      2. Where a sheriff seeking induction into office, tendered sureties who being required by the justices of the county court to answer questions in reference to their pecuniary condition, refused: Held, that the county court had a right to adjudge them insufficient.
    3. It seems that the act of 1805, ch. 4Í, which declares that the Count/ court shall not re-elect any sheriff, unless he shall produce to the county court vouchers to prove that he has paid up all the State and county taxes he is liable for,,is not repealed by the transfer of the power of electing: the sheriff to the qualified voters of each county, but that it is still the duty of the county court to require the production of the vouchers»
    On the 26th day of April, 1842, Elisha Thomason, filed a petition in the circuit court of Grainger county, by virtue of the provisions of act of 1831, ch. 41. This petition stated that in March, 1842, petitioner was duly elected according to the constitution and laws of the State, sheriff of the county of Grainger, for the term of two years, and in testimony thereof, makes profert of the coroner’s certificate of said election — that at the ensuing April session of the county court, he appeared in open court, produced the coroner’s certificate of election, and proposed to execute in due form of law the bonds required of him with good and sufficient sureties, but that the court as a condition precedént to his qualification assumed the right of requiring of the petitioner the production of sufficient vouchers, from the proper officers shewing that he had accounted for, and paid over all the State and county taxes, that by law he was then liable for; that upon the refusal of the petitioner so to do, the county court by a vote of a majority of said justices present in court, then arid there declared petitioner ineligible, and refused to qualify him; that petitioner tendered ten persons as his sureties in the bonds required of him by law, all of whom were freeholders, and good and sufficient sureties for the penalties in the bonds, that if the court deemed said persons insufficient, that said petitioner could and would give other good and sufficient sureties — but that said court, after having previously declared him ineligible, then demanded that sureties should be sworn to answer questions in i elation to their'pecuniary condition; that they refused to be sworn, and thereupon the court declared the sureties insufficient and the office vacant.
    The petitioner further stated that he was able, ready and willing to give such sureties as the law required of him, and that petitioner was wrongfully kept out of the office, and prayed that a mandamus might issue to said justices, command ing them to appear and shew cause why a peremptory mandamus should not issue commanding them to admit petitioner to the office. Upon the order of the presiding judge, the writ of mandamus was issued accordingly and served on the defendants.
    The defendants answered that Thomason was duly elected sheriff of Grainger county, by a majority of the qualified voters; that he had produced the certificate of the coroner, that he was duly elected; that they had refused to admit him to qualify as sheriff, upon two grounds; first, that they demanded of said Thomason the production of vouchers that he had accounted for, and paid over all the county and state taxes, for which he was liable as sheriff and collector, (act of 1805, ch. 41) second, that said Thomason had tendered ten persons as his sureties for the discharge of his official duties, and that the defendants, justices as aforesaid, had required that said persons should testify as to • their pecuniary condition, which they refused to do, and that the court adjudged them insufficient.
    Upon this petition and answer, the petitioner moved the court that a peremptory mandamus issue &c.; but upon consideration of the matters set forth in the petition and answer, the court dismissed the petition. The petitioner appealed in error to the supreme court.
    
      J. A. McKinney, for Thomason»
    
      Attorney General Sj Hynds, for the justices See.'
    
   Reese, J.

delivered the opinion of the court.

E. Thomason was sheriff of Grainger county, for the years 1840 and 1841. In March 1842,- he received the highest number of votes at the popular election for that office, and was reelected. The justices of Grainger county at the ensuing April session, refused to induct him into the office upon two grounds. First, because he refused on their demand thereof, to produce vouchers to show that he had accounted for and paid all State and county taxes, that before that time he was bound by law to account for and pay. And secondly, that they considered and adjudged that the sureties by him tendered for his bonds as sheriff and collector were insufficient, the said sureties having refused to justify. These grounds are stated in their return to a mandamus nisi. And the question here is, are theserea-sons sufficient. The act of 1805, ch. 41,1 Scott 1809, provides that it shall not be lawful for the justices of any county court in this. State to re-elect any person as a sheriff, unless such sheriff shall produce sufficient vouchers, that he hath accounted for and paid all State and county taxes, that before the time of such election he may have been bound by law to account for and pay, any law heretofore to the contrary notwithstanding. At the time this law was enacted, the county court not only appointed the sheriff but inducted him into office. If before the reformed constitution a sheriff had received the formal re-appointment or re-election without the vouchers in question having been produced or demanded, would it have been the duty of the county court to have inducted him into office? Is not the sense and meaning of the act and the duty to be performed, addressed to the tribunal taking the bond and qualifying the officer rather than to them in their character of voters? But even if addressed to them-in the latter character, is it not still their duty when the officer applies to be inducted, to see that the law has been complied with? Has the act of 1805, so consistent with public policy, and so necessary, been repealed by implication upon a change of the appointing power? Is it now lawful to elect and induct into office a sheriff who is in default? Is the county court still the tribunal to take bond, qualify and induct the sheriff' into office, to overlook the act of 1805? If the reformed constitution had made the governor or a circuit court judge, or other functionary the appointing power as to the sheriff, would the act of 1805 then been regarded as repealed? We are strongly incline to think that it is to be regarded as in force and as directory not to the mass of the community only voting for, but also to the county court inducting the sheriff into office.

But be this as it may, we are satisfied upon the other ground that no peremptory mandamus ought to go. The whole discretion and duty of judging of the sufficiency of the sureties and taking the bond of a sheriff is devolved by law upon the county court. They return that no sufficient sureties were offered, and that those who were offered refused to justify. And this is decisive of the case. It is argued for the sheriff that the supposed error in the county court made it unnecessary for him to have offered good and sufficient surety, for if offered it would not have been received. But the argument is not sound. The sheriff seeking to be inducted should have done and offered every thing to be done or offered on his part. Pie should have made his title to admission into the office complete. A mandamus goes not upon an incomplete inchoate title, but on one fully made out. The error of the justices if it were such, did not exempt him from offering sureties. He did in fact offer sureties; they were adjudged insufficient and he offered no more. A mandamus cannot therefore in this ease go, and We affirm the judgment of the circuit court.  