112 Ky. 728 | Ky. Ct. App. | 1902
■Opinion op the court by
Afitrming.
■ It is substantially alleged in the petition; That the defendant, now appellee, was the duly elected and acting presiding judge of the Henderson county court. That at the general election in November, 1901, the plaintiff (now appellant) Barnett, was duly elected to the' office of magistrate of the Third magisterial district of said county, and was duly commissioned by the governor of The State (said commission was filed therewith). That on Tuesday, the 7th, day of January, 1902, he tendered to the defendant, Hart, as said county judge, in open court, his commission as such magistrate, and offered to take the oath required by law, and requested said oath to be administered to him, and 'tendered to the- said county judge his bond as such magistrate, as required by law, in due form, with W., T. Benton as surety. That' said bond was sufficient' and ample, and in all respects conformed with the requirements ofl said statute, in such case made and provided. That on Monday, the 6th of January, 1902, being the first Monday in January, 'he was sick in bed, and unable to leave his bed, which fact he, on the 7th of -January, made known to the defendant. Nevertheless' said defendant failed and refused, and has since failed and refused, and noyv fails and refuses, to rec-ognize the plaintiff's said commission, -or to accept said bond,'or tq administer said, oath, or permit said plaintiff to
The question for decision is whether or not it was the duty of the county judge to permit the appellant to execute bond and take the oath of office at' the time that he (plaintiff) applied to the county judge so to do. It is provided by section 99 of the present Constitution- that a justice of the peace shall be elected in each justice’s district, who shall enter upon 'the discharge of the duties of his’ office on the first Monday of January next after his election. Section 1081, Kentucky Statutes, provides that each justice shall be a conservator of the peace, and before he enters upon the discharge of the duties of his office shall take an oath to faithfully discharge the duties thereof, and shall execute a bond, with sureties, to be approved by the county judge, to the effect that he will faithfully discharge all the duties of his-office. The bond shall be filed and recorded in.the county clerk’s office, and ah entry made upon -the
Judgment affirmed,