
    The State ex rel. Prince, Appellant, vs. McCarty, Respondent.
    
      January 13
    
    
      February 2, 1886.
    
    
      County clei'lc: Removal: Charges: When appointee must qualify.
    
    1. Written charges filed -with the county board stated that the eounty clerk had refused and neglected to obey the orders of the board in that he had refused to execute and to affix the county seal to certain described instruments. An order removing the clerk from office,-made after a hearing, stated that the ground of removal was “ official misconduct and wilful neglect of duty.” Held, that the charges and order sufficiently specified “the cause or causes of removal,” under sec. 974, R. S.
    2. When the county clerk is removed by the county board and another person is appointed to fill the vacancy, such person must .qualify within the time prescribed by sec. 701, R. S.
    APPEAL from the Circuit Court for Ashlcmd County.
    Action to try the title to the office of county clerk of Ashland county. The complaint alleges that on February 13, 1881, upon charges filed and after a hearing had, the defendant was duly removed from said office by the county board; that on the same day the relator was duly appointed to fill the vacancy so created; and that on said day the defendant usurped the said office and has ever since unlawfully exercised the same and withheld it from the relator. The answer, besides denials, alleges that the pretended order of removal was void for the reason, among others, that the charges upon which it was based were insufficient.
    The charges against the defendant, as filed with the county board, were to the effect that the defendant had refused and neglected to execute a county order for a certain sum and a general release and satisfaction to one Edwin H. Abbot, and to affix the seal of the county to such instruments, as directed by resolutions of the county board. Other facts will appear from the opinion. See, also, 
      McOa/rty v. Boa/rd, etc. 61 Wis. 1, and Prince v. McOa/rty, id. 3.
    At the close of the plaintiff’s testimony the defendant moved for a nonsuit on the grounds (1) that the relator failed to qualify, and that the deputy county clerk was rightfully in the possession of the office until he did, and (2) that the record fails to show the jurisdiction of the county board to pass the order. The motion was granted, and from the judgment entered accordingly the plaintiff appealed.
    The cause was submitted for the appellant on' the brief of Knight <& Hayes, and for the respondent on that of J. J. Miles and W. M. Tomltins.
    
    For the appellant it was contended, inter alia, that under the circumstances there was no necessity for the relator to file his oath of office and bond, and he was not requhed to do so. He could do this after a, judgment of ouster with the same force and effect as if he had done so on the day of his appointment. R. S. sec. 3411; People ex rel. Finnegan v. Mayworm, 5 Mich. 146; People ex rel. Lansing v. Miller, 16 id. 56; S. 0. 24 id. 458.
   Colb, C. J.

We think the nonsuit cannot be sustained on the ground that the record does not show jurisdiction of the board to make the order. The defendant was. removed from the office of county clerk of Ashland county by an order of the county board dated February 13,1884, and the relator was appointed to fill the vacancy. The ground of removal, as stated in the order, was for official misconduct and wilful neglect of duty. It is objected on the part of the defendant that the order removing him was void on its face, because it fails to specify the particular act or acts which show that he had been guilty of official misconduct or neglect of duty. It is said that these facts should be stated with such fulness and precision that a court could say, as a matter of law, that tbey justified the board in removing him from office, if established by proof. The charges which were made were in writing, and were filed with the county board, and clearly set forth that the defendant as clerk refused and neglected to obey the .orders of the board in that he refused to execute and to affix the seal of the county to the instruments, which are fully described. It was the duty of the clerk to sign all orders for the payment of money directed by the board to be issued, and to authenticate instruments by affixing the seal of the county; consequently we are inclined to hold that the charges and order sufficiently specify the cause or causes ” of removal to meet the requirements of sec. 974, E. S.

But the nonsuit was right, because it appeared the relator had failed to qualify within the time prescribed by statute. The relator himself states that he was informed of his appointment by the chairman of the board, on the day the order was made or the day after. He demanded of the defendant the books, papers, and records appertaining to the office. It appears, however, that his official bond was not filed until the 25th of March, 1884. The statute clearly provides that before he entered upon the duties of his office, and within twenty days after receiving official notice of his appointment, he should execute and deposit his official bond, and within the same time take and subscribe the oath of office. Sec. 701, E. S. A neglect or refusal to do these things within the time prescribed creates a vacancy in the office. Sec. 962, E. S. The relator was appointed to fill an unexpired term. He states that he was informed by the chairman of the board of his appointment on the day the order was made or the day after. He should have qualified within the time prescribed by law. State ex rel. Ames v. Southwick, 13 Wis. 365. It is said that the relator made and subscribed both the official oath and bond in due form, and that the bond was approved by the proper officers. The bill of exceptions does sbow that a bond was executed and approved, but. wbat was tbe date of approval does not appear; also that an oath was taken on tbe 16tb of February, 1884. But tbe indorsement on tbe bond shows that it was not filed in tbe office of tbe county clerk until tbe 25th or 26tb of March. Tbe oath was filed on tbe latter day. This fails to show that tbe statute was complied with.

But it is said tbe relator was under no necessity to file bis oath of office and bond under tbe circumstances, nor was be required to do so. It is claimed that be could qualify under see. 3471, R. S., after judgment of ouster against tbe defendant, with tbe same force and effect as if be bad qualified tbe day of bis appointment. We cannot adopt that view of tbe section. It appears that this action was not commenced until December 13, 1884; and tbe term for .which tbe relator Avas appointed expired on tbe first Monday of January, 1885, long before this action was tried. It is very apparent from tbe language of sec. 3471 that it was not intended to apply to a case like this. Tbe respondent, having been elected to tbe office, bad tbe right to bold it until bis successor was qualified. Sec. 698, R. S.

By the Court.— Tbe judgment of tbe circuit court is affirmed.

LyoN, J., took no part.  