
    Cases 40, 41 — PETITION FOR MANDAMUS
    March 13.
    Lowe v. Phelps, Judge of Kenton County Court, and Lowe, Ex parte.
    APPEALS FROM KENTON CIRCUIT COURT.
    1. Mandamus neither confers power nor imposes duty, but is a command to exercise a power already possessed, and to perform a duty already imposed. (Johnson v. Lucas, 11 Humph. 306; State v. Judge, 15 Ala. 740; State v. Beloit, 21 Wis. 250.)
    2. It must appear in every application for a mandamus that it.is the legal duty of the respondent to do that which it is sought to compel him to do, and that he has, upon proper application, refused to perform that duty. (Moses on Mandamus, 204.)
    3. If the sheriff fails to give bond on or before the first Monday in January next succeeding his election, as prescribed by the statute, there is no law making it the duty of the county court to accept his bond after that date, and therefore a mandamus will not lie against the county judge to compel him to accept a bond tendered after that day. (General Statutes, secs. 3, 4, chap. 100, and sec. 12, chap. 81.)
    4. The sheriff elected in Kenton at the August election, 1878, failed to give bond on or before the first Monday in January, 1879, as required by law; the county judge made an order declaring the office vacant, and refused to accept a bond tendered January 20, 1879, and thereupon the sheriff so elected applied to the circuit court for a mandamus to compel the county judge to accept the bond so tendered. The judgment of the circuit court refusing the mandamus is affirmed.
    5. Whether the legislature had power to declare that the failure to give bond within the prescribed time should operate to vacate the office of sheriff and authorize the county court to ascertain the fact of such failure, and to declare that a vacancy existed, is a question suggested but not decided in this case.
    6. Whether any person other than an executive or ministerial officer is amenable to the writ of mandamus in this state (Civil Code, sec. 477), it is suggested in the opinion herein, is a question of considerable moment, but is not decided.
    7. The county courts have no authority to accept the revenue-bond, after the first Monday in January, from a sheriff who was in office or who ought to have been in office on that day. (Basham v. Commonwealth, 13 Bush, 37.)
    STEVENSON & O’HARA and R. D. HANDY fob appellant.
    1. The appellant, by his failure to give bond on the first Monday in January, 1879, was not prevented from tendering to the court within a reasonable time a sufficient bond and being sworn in as sheriff. (Con., art. 6, secs. 4, 9; art. 5, sec. 3; art. 3, sec. 37; Gen. Stat., secs. 10, 12, chap. 81.)
    The act authorizing the county court to declare the office of sheriff vacant is unconstitutional and void. (Auditor v. Hardin, 8 B. Mon. 648; Stokes v. Kirkpatrick, 1 Met. 138; Lowe v. Commonwealth, 3 Met. 237; Brown v. Grover’s adm’r, 6 Bush, 1; Gen. Stat., chap. 104, p. 796; see. 12, chap. 81; Bartly v. Frame, 4 Bush, 375.)
    2. The action of the county judge in approving the bond of a sheriff or other officer and accepting or rejecting it is not a judicial act, but a ministerial act. He can not hear or determine any question or dispute as to the title of the officer to the office. When the proper evidence of the election is presented to him, he is bound to respect it, and there is nothing left for him to do but in a ministerial capacity to accept and approve the bond tendered, because it is in the proper shape, and the surety offered is sufficient, or to reject it because it is not in proper shape or the surety is not deemed sufficient. (Taylor v. Commonwealth, 3 J. J. Mar. 401; Patterson v. Miller, 2 Met. 497; Applegate v. Applegate, 4 Met. 237; Anderson County Court v. Stone, 18 B. Mon. 852.)
    Whether an act is judicial or ministerial is not determinable from the act, but from the nature of the act. (State ex rel. Whitman, &c. v. The Governor of Ohio, 5 Ohio St. 535.)
    3. The act of the county judge being ministerial, the remedy by mandamus is plain. (Cate v. Ross, 2 Duvall, 244; Day v. Justices of Fleming County, 3 B. Mon. 198; Page v. Hardin, 8 B. Mon. 651; Divine v. Harvey, 7 Mon. 439; Kendall v. United States, 12 Peters, 524; Marbury v. Madison, 1 Cranch, 137; Batman v. Megowan, 1 Met. 538; Louisville v. Kean, 18 B. Mon. 9; Applegate v. Applegate, 4 Met. 237; Patterson v. Miller, 2 Met. 497; Gen. Stat., sec. 4, chap. 100; Stokes v. Kirkpatrick, 1 Met. 138; Calloway v. Commonwealth, 4 Bush, 384.)
    McKEE & FINNELL and HALLAM & PERKINS rob appellee.
    1. By his failure to execute the bond required by law on or before the first Monday in January, and the order of the county judge declaring the office vacant, the fact that the office of sheriff was vacant, became res adjudícala; and the appellant whose office had been thus vacated had no legal right, after said day and order of the county judge, to execute a bond as sheriff, and the county judge had no legal right to accept such a bond if offered by him. (Gen. Stat., sec. 12, chap. 80; secs. 3 and 40, chap. 100; sec. 1, art. 6, chap. 33; Constitution of Kentucky, sec. 9, art. 6 ; Rev. Stat., sec. 12, chap. 71; Stokes v. Kirkpatrick, 1 Met. 144.)
    The appellant was not in office, and was not removed from office, and therefore Lowe v. Commonwealth, 3 Met. 241, and Brown v. Grover, 6 Bush, 2; and Auditor v. Hardin, 8 B. Mon., are not applicable to this ease.
    The true principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature and so clear and specific that no element of discretion is left in their performance, but that as to all acts or duties necessarily calling for the exercise of judgment and discretion on the part of the officer at whose hands their performance is required, mandamus will not lie.
    The foregoing rule applies with special force to cases where the aid of mandamus is sought against inferior courts or judges. (High on Man., secs. 24, 40; County Court of Warren v. Daniel, 2 Bibb, 573; Swan v. Gray, 44 Miss.)
    STEVENSON & O’HARA filed a petition for a rehearing, which was overruled and responded to by the court.
   JUDGE COEER

delivered the opinion of the court.

The • appellant having been elected to the office of sheriff of Kenton County at the regular biennial election in August, 1878, received a proper certificate of election, appeared in the county court of said county on the 20th day of January, 1879, that being the first day of the January term of said court, and tendered and offered to execute the bond required of him by law, and moved the court to accept his bond and to permit him to qualify as sheriff of Kenton County. His motion was overruled, and he applied to the Kenton Circuit Court for a mandamus to compel appellee, who is judge of the county court, to accept his bond and to permit him to qualify according to law. The circuit court refused the writ and dismissed the motion, and this appeal is prosecuted to reverse that judgment.

It may aid in reaching correct conclusions briefly to consider the nature, object, anil scope of this proceeding.

Blackstone defines mandamus to be, in general, a command issuing in the king’s name from the Court of King’s Bench, directed to any person, corporation, or inferior court of judicature, within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their oflice and duty, and which the Court of King’s Bench has previously determined, or at least supposes, to be consonant to right and justice. (3 Com. 110.) The oflice of the writ is to compel the performance of a duty enjoined by law, and it can not be employed to compel the doing of an act which the person or officer has no legal right to do without the writ. It neither confers power nor imposes duty, but is a command to exercise a power already possessed and to perform a duty already imposed. (Johnson v. Lucas, 11 Humph. 306; State v. Judge, 15 Ala. 740; State v. Beloit, 21 Wis. 250.)

It must therefore appear upon every application for a mandamus that it is the legal duty of the respondent to do that which it is sought to compel him to do, and that he has upon proper application refused to perform that duty. (Moses on Mandamus, p. 204.)

Our Code declares that the writ of mandamus, as therein treated of, is an order of a court of competent original jurisdiction, commanding an executive or ministerial officer to perform an act,” or omit to do an act the performance or omission of which is enjoined by law. (Sec. 477.)

Whether any person other than an executive or ministerial officer is amenable to the writ, is a question of considerable moment, not now before us; but that it can only be employed to compel the performance of a duty enjoined by law is clear, whether we consider the Code as restricting the use of the writ to the classes of cases embraced by its provisions, or as merely declaratory, as to them, of the common law.

Before the writ can go in this c$se two fundamental propositions must be established, viz: first, that the appellant, at the time he' tendered his bond, had a legal right to execute it; and second, that it is now the legal duty of the appellee to accept it.

The constitution provides that sheriffs shall, before they enter upon the duties of their office, give such bond and security as may be prescribed by law (sec. 9, art. 6), and that they shall enter upon the duties of their offices on the first Monday in January next succeeding their election. (Sec. 4, art. 6.)

The statute provides that sheriffs shall, on or before the first Monday in January next succeeding their election, enter into bond, to be approved by the county courts of their respective counties (sections 3 and 4, chapter 100), and that if any sheriff shall fail to execute bond within that time the office shall be declared vacant (section 12, chapter 81).

The appellant failed to enter into bond, or to offer to do so, within the time specified, and the county court entered an order reciting the fact and declaring the office vacant.

The effect of the omission to execute the bond within the prescribed time, and of the order of the county court declaring the office vacant, was much discussed at the bar.

For the appellant it was contended that he became sheriff on receiving his certificate of election, and that as the constitution prescribes two modes of removing a sheriff from office, impeachment and indictment, the legislature can not constitutionally authorize his removal in any other mode.

The appellee’s counsel contend that the appellant did not become sheriff upon being elected and receiving his certificate; that these were mere evidences of his right to become sheriff; and that he could only come into office by executing the bond required by the constitution and laws; and that the legislature had power to declare that the failure to give bond within the prescribed time should operate to vacate the office, and to authorize the county court to ascertain the fact of such failure and to declare that a vacancy existed.

These questions are or may become very important, and are not free from difficulty, but we do not find it necessary to decide them in this case.

As we have already seen, mandamus can not be maintained unless there is a legal right in the appellant, and a corresponding duty imposed by law on the appellee.

If we concede that the office has not become vacant, and that the appellant still has a right, under the constitution, to execute a bond and to enter on the duties of the office, we must then inquire by what provision of the constitution or laws it is made the duty of the appellee to accept his bond.

The constitution does not designate the officer or tribunal before which the bond it requires shall be executed. That is left to be provided for by statute, and the only duty that the appellee is under in the premises is such as has been imposed by statute, and his duties must be measured by its provisions. It declares that sheriffs shall, on or before the first Monday in January next succeeding their election, give bond to the Commonwealth in form substantially as therein prescribed, and that the sureties in the bond must be good for the amount of all moneys, except what is payable into the state treasury, which will probably pass through the sheriff’s hands during his continuance in office. They shall be approved by the county court, and the bond taken by its clerk under its supervision,”-etc.'

This statute imposed on the county court the duty to accept a sufficient bond, on or before the first Monday in January. But does it impose the duty to accept the bond after that time?

We think not. The duty of the sheriff to execute the bond and the duty of the county court to accept it, are so connected as to exclude the idea that the duty of the one can be extended by the neglect of the other to perform his duty.

The statute gave the appellant nearly five months in which to enter into bond, and in order to facilitate its execution it is made the duty of the county judge, on request of the sheriff, to call a special term at any time to receive his bond.

But all doubt and uncertainty upon this point are removed by section 12, chapter 81, which provides, among other things, that If a sheriff fail to execute his official bond on or before' the first Monday in January néxt after his election, the office shall be declared vacant.”

This provision manifests, as clearly as could have been expressed in words, that the legislature did not intend to impose on the county court the duty to accept the bond after the first Monday in January. It can not be possible that it was intended that an officer whose office was directed to be declared vacant should be permitted to execute an official bond after the act or omission which was to operate to create the vacancy.

The legislature intended that, for the failure of appellant to give bond on or before the designated time, his office should be declared vacant, and consequently could not have intended that it should be the duty of the county court to accept his bond after that time.

We do not overlook the fact that counsel claim that the provision quoted above from section 12, chapter 81, is unconstitutional, nor mean to decide that it is not. We refer to it merely to show that our construction of sections 3 and 4 of chapter 100 is correct, and that those sections do not make it the duty of the county court to accept the bond after the first Monday in January.

If the appellant is still entitled under the constitution to give bond, notwithstanding his failure to execute it within the time prescribed by that instrument, the right is incapable of being enforced.

As already said, the constitution does not make it the duty of the county court to accept the bond. That was left to be provided for by the legislature, and that body having failed to impose on any one the duty to accept the bond after the first Monday in January, this court has no power to supply that omission in legislation, and by mandamus to compel an .officer to do an act not enjoined on him by law.

Wherefore the judgment is affirmed.

To THE PETITION OF COUNSEL FOR APPELLANT FOR A REHEARING

JUDGE COFER

delivered the following response of the court:

In their petition for a rehearing counsel cite the case of Basham v. The Commonwealth, 13 Bush, 37, in support of the proposition that the county court may lawfully accept the bond of a sheriff, elected at a regular election, after the first Monday in January next succeeding the election. They recognize the fact that Basham was appointed to fill a vacancy, but argue that, as the statutes make no provision whatever for the execution of a bond by a sheriff appointed to fill a vacancy, the decision in that case, that Basham’s bond was a good statutory bond, amounts to a decision that when a sheriff is entitled, under the constitution, to enter upon the duties of his office, it is the duty, ex necessitate, of the county court to accept his bond.

The statute provides that when there is a vacancy in the office of sheriff it shall be filled by the county court, and the constitution requires that before a sheriff shall enter upon the duties of his office he shall execute bond. It was therefore very properly held in that case that the bond was a good statutory bond. Though there was no express statutory authority to take it, yet such authority was plainly implied.

The sheriff appointed could not act until he gave bond, and power to accept the bond was a necessary incident to the power to appoint. The power to appoint was nugatory without power to do whatever was legally requisite to render the appointment effectual.

But there can be no implied power to accept a bond at a time when the legislature has declared that the office shall be declared vacant. It would be doing obvious violence to the language of the legislature 'to suppose that, after declaring that if a sheriff shall fail to execute bond on, or before the first Monday in January next succeeding his election, the office shall be declared vacant, it was the intention of that body that it should be the legal duty of the county court to accept his bond after that time.

There is not only a provision that the bond shall be executed on or before a given day, and an omission to make provision for its execution after that day, but section 12, chapter 82, shows that the omission was not casual but designed.

Basham’s case, so far from giving support to the position of counsel, uses this language directly supporting the conclusion reached in this case, “The county courts have no authority to accept the revenue-bond, after the first Monday in January, from a sheriff who was in office or who ought to have been in office on that day.”

We fully concur with counsel that “A court will so construe legislative enactments as to embrace subjects and confer powers which were manifestly intended to be embraced or conferred, though never so obscurely expressed, when necessary to sustain a right, rather than to declare an omission in legislation, and allow a right to be defeated,” etc.

But this latitude of construction will never be indulged when the power in question was not only not manifestly intended to be conferred, but was expressly intended to be withheld. To provide that a bond shall be given on or before a given day, and that if not so given the office shall be declared vacant, is equivalent to providing that if not given on or before the designated day it shall not be given at all. Grant, for the sake of the argument, "that so much of the statute as declares that the office shall be declared vacant is unconstitutional, the language still remains to show that when the legislature declared in section 3, chapter 100, that the bond shall be executed on or before the first Monday in January, it was not intended to make it the duty of the county court to take it after that day.

Nor does the fact that the Revised Statutes provided for the execution of sheriff's bonds after the first Monday in January succeeding their election militate against our conclusion. "Vye do not hold that the language of section 4, article 6 of the constitution authorizes the conclusion that the framers of the constitution intended that the failure to execute bond on or before the first Monday in January should deprive the sheriff of his office. On the contrary, the Revised Statutes, adopted soon after the constitution went into effect, and which, with various amendments, continued in force for more than twenty years, did not prescribe any time within which a sheriff should execute his official bond, except that it was provided by section 12, chapter 71, that if the official bond of officers generally was not given and the oath of office taken within a month of the time when the officer was elected or received notice of his appointment, or of the time when his appointment ought to take effect, the office should be forfeited. This allowed sheriffs thirty days after the first Monday in January to execute bond, and was a contemporaneous legislative construction of the constitution which is entitled to much weight in construing that instrument. (Collins v. Henderson, &c., 11 Bush, 74.)

Nor can the acts prior to the Revised Statutes be called in to aid the appellant. Those statutes were repealed by the adoption of the Revised Statutes, and were not revived by the repeal of these statutes, or their transfer to the General Statutes, which must now be taken to be a complete code of laws as to all subjects attempted to be provided for therein. (Broaddus v. Broaddus, 10 Bush, 299.)

Petition overruled.  