47 Kan. 413 | Kan. | 1891
Opinion by
This was a proceeding in quo warranto, to determine who, as between the parties to the action, was entitled to the office of treasurer of school district No. 115, in Smith county, Kansas. At the annual school meeting in 1882, Horneman was elected treasurer of said district and served three years, and until the annual election in 1885. At that time it was discovered that there should have been an election the year before, in 1884, and upon such discovery in 1885, he was elected for two years to fill the vacancy. He qualified and gave a bond after his election in 1882, and qualified after his election in 1885, but it is not certain that he gave a bond after that election. At the annual school meeting in 1887 he was again elected, and qualified the same day, but did not at that time give a bond. At the meeting of the board, during which he was qualified, he inquired of the director if he had a blank that he could use in giving his bond. The director did not have any blank. He asked Horneman if he had given a bond before when he was elected,
“Every person duly elected to the office of director, clerk or treasurer of any school district who shall refuse or neglect, without sufficient cause, to qualify within 20 days after his election or appointment, or who, having entered upon the duties of his office, shall neglect or refuse to perform any duty required of him by the provisions of this act, shall thereby forfeit his right to the office to which he was elected or appointed, and the superintendent shall thereupon appoint a suitable person in his stead.”
Paragraph 5607 of the same statute relates to the giving of a bond by the treasurer of a school district, and so much of it as is material here reads as follows: “ The treasurer shall execute to the district a bond, in double the amount, as near as can be ascertained, to come into his hands as treasurer during the year, with sufficient securities, to be approved by the director and clerk, conditioned to the faithful discharge of the duties of said office.” It will be seen that the statute requires the treasurer to qualify within 20 days after his election, but it is silent as to the time within which he shall execute a bond. In this case the oath of office was administered to Horneman the same evening of his election, which was more than a year before Harlan was appointed, and during all that time Horne-man was not only acting as treasurer of the district, but until a few days, not exceeding a week or 10 days, before Harlan’s appointment, his right to the office was never questioned by anyone. Was there a vacancy in the office of treasurer of school district 115 in Smith county, that could be filled by appointment when Harlan was appointed ? We think not. Horne-man was elected at the annual school meeting in 1887, for the term of three years. He immediately qualified, by taking the oath of office, and while he served nearly a year before he gave a bond, yet he had given a bond before any action was taken
It was claimed at the trial below by the counsel for Harlan, who have not filed a brief in this court nor appeared to argue the case in person, that the bond of Horneman should have been left with the clerk. It is true that with the clerk is the proper place to deposit the bond of the treasurer. It is also true that the treasurer did deliver his bond to the clerk after its execution. We do not think the fact that the clerk, who, thinking the bond should be deposited with the superintendent, returned it to Horneman that he might so deposit it, invalidated the bond. If Horneman had taken it back with the intention of destroying it, or to withdraw it entirely, it would have been different. There can be no doubt but that Horneman and his sureties, in case of default, would have remained liable on the bond as well after it was returned to him by the clerk for the purpose of delivering it to the superintendent as while it was in the hands of the clerk before its return. And if the district could recover on it in case of default of Horneman, it should still be sufficient to protect him against
It is recommended that the judgment of the district court be reversed, and the case remanded for further proceedings.
. By the Court: It is so ordered.