
    
      State (ex rel. Attorney-General) v. Joseph C. Tool.
    Where a treasurer elect, on the first Monday of June next after his election, executed and delivered a bond to the commissioners of the county with sufficient surety, according to the statute, and the commissioners on that day neither accepted nor rejected the bond, but on the next day approved it, and the treasurer immediately thereafter took the necessary oath, and had the same indorsed on the bond, he thereby became the legal treasurer of the county.
    Proceedings in the nature of a quo warranto.
    
    The case is stated in the opinion of the court.
    
      F. D. Kimball, attorney-general, for the state :
    The first question presented by the demurrer to the second plea is, is the mere presentation of a bond to the county commissioners on the day limited by statute, a sitfficient compliance therewith, to prevent the office becoming vacant. The provision of the statute (Swan 1009) is, that if any person elected to the office of county treasurer, shall not give bond and take the oath or affirmation as required by the preceding section (section 2), on or before the first Monday in June next after his election, his ^office shall be considered vacant. The requirements of section 2 are that he should give bond, with four or more freehold securities, to the acceptance of the county commissioners, etc., and shall also take and subscribe an oath or affirmation, to be indorsed on said bond that he will faithfully discharge all the duties of his office, etc.
    The provisions of the law are imperative, that unless the bond is given and the oath or affirmation taken on or before the day prescribed, the office shall be considered vacant. There is no qualification whatever, but the failure to comply with these requirements leaves the individual in the same position precisely as if he had never been elected.
    It is contended by counsel for defendant, that the bond was given on the day prescribed. The provision of the statute is that he shall give bond to the acceptance of the county commissioners. In this case no bond was given on that day to the acceptance of the commissioners, and the provision of section 3 is, that in case of a failure to give bond and take the oath as required by section 2, the office shall be considered vacant.
    The attempt to give a bond will not excuse the giving it to the acceptance of the commissioners, and in such a case will it not be presumed that the commissioners acted in good faith and according to the discretion vested in them, in not accepting it on that day; in other words, that no such bond was presented as is required by law, or that it would have been on that day accepted ? The taking the oath of office is the voluntary act of the individual himself, and is subject to no conditions of acceptance from any source. It may be taken, and indorsed on the bond just as well before as after its acceptance by the commissioners, and the failure to take it is the neglect of the individual himself, and stands entirely disconhected from the act of giving a bond to the acceptance of the commissioners.
    The question whether the bond thus given and accepted on a day subsequent to the one prescribed by law, is binding and valid, *is entirely different from the one involved in this case, and suck, distinction is distinctly made in tbe case of Findley v. Ohio, 10 Ohio, 59. Tbe acts of a treasurer de facto are valid, and bis sureties may be bound, but tbe question here presented is, is Tool treasurer de jure, after having failed to comply with the law in regard to bis qualification and induction into office?
    
      Hunter & Dougherty, for defendant:
    The material facts averred in tbe second plea are, “ that tbe defendant, being duly elected to tbe office of county treasurer, delivered to the county commissioners, on the first Monday of June thereafter, bis bond, with sureties conditioned according to law, and was ready and willing on that day, on acceptance by the commissioners of the bond, to take and subscribe tbe oath of office to be written on tbe bond as required by law. That the commissioners, without determining on tbe validity of said bond, on said first Monday, adjourned their session to tbe next day, and on that day approved and accepted said bond as the official bond of tbe defendant, and that tbe defendant thereupon on that day took and subscribed tbe oath of office indorsed on said bond, and bolds the office accordingly.”
    The questions are: 1. Whether the-acceptance of the bond on the next day after the first Monday, under tbe circumstances, was in time to prevent tbe office from becoming vacant ? and, 2. Whether the failure of tbe defendant to take and subscribe the oath of office on tbe first Monday rendered tbe office vacant?
    Section 3 of tbe act provides: “ That if any person elected to the office of county treasurer shall not give bond and take the oath or affirmation, as required in tbe preceding section, on or before the first Monday of June next after bis election, bis office shall be considered vacant.” Swan’s Stat. 1009.
    The bond was duly executed and delivered on tbe first Monday of June by the defendant. He had done all that was in his *power to do, without tbe concurring action of tbe commissioners; and if so, surely tbe statute ought not to be so construed as to forfeit bis right to tbe office, or to defeat the election by the people, by either a wanton refusal or negligent omission of the commissioners to approve and accept tbe bond.
    That would be a harsh, unwise, and an unjust provision, if it Were so expressly provided in tbe law. But it is not so provided :and if that interpretation bo given, it must be by construction. The language is, “That if anjperson elected,” etc., “shall not give bond," etc. It is his act alone of negligence that is in contemplation ; and by no means the omission or negligence of the commissioners in not acting upon his bond that is intended to vacate the office. If the defendant, with sureties, etc., executed and delivered his bond to the commissioners, he had, in the full sense of the law, “ given bond,” provided the sureties, condition, and amount of the penalty of the bond were such as the commissioners would accept and approve; and the averments of the plea are, that the bond was in fact accepted and aj>proved the next day.
    This being the case, we say the office can not, in the language of the statute, “ be considered vacant,” for the reason that the defendant did not give bond. He gave the bond in duo time, and the commissioners accepted it. It is therefore a good bond, and is obligatory upon the defendant and his sureties in it for the performance ■of its condition. Ohio v. Findley, 10 Ohio, 51.
    Is the office vacant because the oath was not taken and indorsed upon the bond on the first Monday of June? The defendant has, in virtue of his election and the bond and oath, as made and given, exercised the office to the present time, and a question might, if he wore unfaithful, arise, whether his sureties would be liable on the bond, This question has been distinctly adjudicated in the Findley case just cited. Nevertheless, it may be argued, that although the bond is valid, the office is vacant.
    ¥e think, however, that if the oath of office was taken and ^indorsed upon the bond and subscribed by the defendant, without unnecessary delay, after the bond became a bond in law by being accepted by the commissioners, the statute has been complied with by the defendant, so far as it was in his power to comply with it under the circumstances. The oath is to be indorsed on the ■bond, — not on a paper which may afterward become a bond. If indorsed before acceptance, it would not, at least till accepted, be on the official bond. In their due chronological order, the bond should exist before the oath of office could be indorsed upon it. And in this case, the bond being delayed in being made j>erfect by the action, or want of action, of the commissioners, the oath was, ex necessitate, and for the same reason, delayed by this want of action.
   Kennon, J.

These proceedings were instituted by the state for ■the purpose of ousting the defendant from the office of treasurer of Hocking county.

The defendant, in showing by what authority he held the office and exercised the duties of county treasurer, plead: 1. That at the October election of 1854, he was duly elected treasurer of Hocking county; that on the first Monday of June, 1855; he executed a bond, with more than four freehold sureties, to the acceptance of the commissioners of the county, in a sum prescribed by the commissioners; that he then and there took the oath prescribed by law, subscribed the same, and caused it to be indorsed on the bond according to law, and, therefore, that he lawfully exercises the duties of the office of county treasurer. 2. That on -the first Monday of June, 1855, he executed and delivered to the commissioners for their acceptance, a bond conditioned according to law, in the penal sum of $80,000, with twenty-four freehold sureties; that the commissioners, on said first day of June, 1855, neither accepted nor rejected the bond, but continued their session until the next day, being the next day after the said first Monday of June, 1855, and then and there accepted and ^approved of said bond; that the said Tool then and there, on the same day, took and subscribed the oath required by the state, and caused the same to be indorsed on the bond thus accepted by the commissioners. On the first plea the state took issue, and to the second filed a demurrer.

The question presented for our consideration is, whether this second plea is sufficient. This depends upon the construction to be put on the statute.

Section 2, of the act prescribing the duties of county treasure^ is in these words : That each county treasurer, previous to entering on the duties of his office, shall give bond, with four or more freehold securities, to the acceptance of the county commissioners, and in such sum as said commissioners shall direct, payable to the State of Ohio, and conditioned for the paying over,-according to law, all moneys which shall come into his hands for state, county, township, or other purposes; and shall also take and subscribe an. oath or affirmation, to be indorsed on said bond, that he will faithfully discharge all the duties of his office; and the said bond, so indorsed, shall be deposited with the auditor of the county, and be by him carefully preserved.”

Section 3 provides, that if any person elected to the office of county treasurer, shall not give bond and take the oath or affirmation, as required in the preceding section, on or before the first Monday in June next following his election, his office shall be considered vacant.

By section 60 of the same chapter (Swan’s Stat. 1017), it is made-the duty of the county commissioners, in case the office of county treasurer shall become vacant by death, removal, resignation, neglect to give bond, or from any other cause, to fill the vacancy forthwith by some suitable person.

This bond was not accepted by the commissioners on the first Monday of June next after the election, nor was the oath, required by the statute, taken and subscribed, nor was it indorsed on the-bond, on or before the first Monday of June.

*The bond was executed and delivered to the commissioners, for their acceptance, within the time prescribed by law, but was neither accepted nor rejected on that day; but on the next day, and during the regular June session of the commissioners, was accepted and approved by them. Now, if a good and sufficient bond, executed according to law, with the oath of the treasurer executed thereon as prescribed by the statute, had been presented to the-commissioners at the March term, 1855, and they had not acted on the bond until the day after the first Monday of June, 1855, and then approved the same, it could scarcely be contended that the-treasurer would be deprived of his office. The treasurer, in such case, would have done all that the law required of him to do; and it would, to say the least of it, be strange if, by the neglect of the commissioners, he was not only deprived of his office, but the commissioners themselves thereby acquire the power of appointing another in his place.

In such case, the doctrine of relation would apply, and the acceptance, by the commissioners, of the bond on the next day, would relate back to the time of the delivery of the bond to the commissioners for their acceptance.

It is said, in 18 Viner’s Abridgment, 290, that where there are-divers acts concurrent to make a conveyance estate, or other thing, the original act shall be preferred, and to this the other acts shall-have relation.

The instances in which the doctrine of relation applies are very numerous.

The deed of a sheriff relates back to the day of sale, and has the same effect as if executed on the day of sale, provided the interests •of thirdpersons are not injuriously affected thereby. Vide Jackson v. McCall, 3 Cow. 75, and the authorities cited in the opinion of the court.

So, where a deed is delivered as an escrow to a third person, to be ■delivered upon a condition to be performed, and the condition is afterward performed and the deed delivered, this last *delivery shall, by relation, operate back and take effect from the first delivery, although the grantor die in the meantime, between the •first and second delivery. Vide Viner, title Relation, p. 290.

In the ease supposed, the presentation of the bond on the first Monday in June, with the oath indorsed thereon, and the acceptance by the commissioners, are, in the sense in which the word concurrent is used by Yiner, concurrent acts, and the acceptances shall relate back to the first Monday of June, afid the whole be considered as having been done on that day; although, in point of fact, the acceptance was made and entered by the commissioners on the day after the first Monday of June.

But, in this cause, the oath was not made or subscribed by the treasurer, nor indorsed on the bond, until the next day after the time prescribed by law; and therefore, it is claimed, the office became vacant, and the present incumbent should be removed. But we think, by a fair reading of the statute, the oath and indorsement follow the acceptance, and do not necessarily precede it. The subscribed oath is to be indorsed on the bond, the accepted bond, and, in the natural chronological order of things, the execution and the acceptance of the bond, the oath and the indorsement, follow each oth er; indeed, the very word bond, means that it has been delivered to, and accepted by, the commissioners. And although, if the oath had been indorsed on the bond at the time it was presented to the commissioners, the law would have been complied with; still, we think the indorsement of the oath more properly follows the .acceptance, and if made immediately after the acceptance, that the oath, indorsement, and the acceptance will have relation to the time of the first act of the treasurer, viz., the delivery of the bond to the commissioners for their acceptance, and that this original act shall, in the language of Yiner, be preferred; and to this first act the others shall have relation, and, by this fiction, the whole shall bo .considered as done on or before the first Monday of June.

Proceedinqs dismissed.  