9 S.D. 24 | S.D. | 1896
At the November, 1892, election, plaintiff was elected to the office of county assessor, and thereafter duly received from the proper authorities a certificate of election. On the 4th day of April, 1893, he took and subscribed to the usual oath of office, and presented the same, with his official bond to the board of county commissioners for its approval. Under a mistaken • notion that plaintiff had, undenSecs. 1380. and 1381 of the Compiled Laws, forfeited his right to the office by not qualifying and entering upon his official duties on the first Monday of January preceding or' within 10 days thereafter, the board refused to approve the bond, and declared the office vacant, and appointed Charles S. Lee to fill the vacancy, who thereupon qualified and in due time entered upon and performed the duties of county assessor for the year 1893, and until ousted by a judgment of the circuit court entered on the 14th day of December of that year. Although plaintiff, on the 29th day of April, 1893, demanded of the county auditor the books, papers and other insignia of office, which was refused, no legal steps were ever taken to compel the board to approve or in any manner act upon his official bond, and the same was never presented to the judge of the circuit court for approval, as provided by Sec. 1376 of the Compiled Laws, when the board neglects or refuses from any cause to approve or act
Just when the action by respondent to obtain possession of the office was commenced is not definitely shown, and there is nothing to indicate that the board of county commissioners had any knowledge of the pendency of the action prior to the time when Lee completed the assessment and received compensation therefor. The judgment by which respondent was declared to be entitled to the office was not obtainéd until several months thereafter. As Lee’s appointment was made and certificate issued by proper authority, he held the office under color of title, and performed the duties for which he received compensation, before appellant had in fact qualified, by filing with the county auditor an approved bond, as required by Sec. 31 of Chap. 14, supra. After the nugatory and unauthorized action of the board in declaring the office vacant -and in the appointment of Lee, and before the time to enter upon the discharge of his duties as assessor, appellant had ample time to have his bond approved by the circuit judge, or to institute proceedings to compel said board to act with reference thereto. He not only slept