Ruckles v. State ex rel. Fullerton

1 Or. 347 | Or. | 1861

Wait, C. J.

It is claimed, on behalf of the plaintiff in error, that a sheriff, duly elected and qualified, may be required, by order of the board of county commissioners, to give a new bond, with sufficient sureties, and in case of a failure to comply with such order, said board may declare the office vacant, and fill the vacancy by appointment. Boards of county commissioners are clearly authorized to fill all vacancies within their respective counties in the office of sheriff. Had a vacancy occurred in the office of sheriff of Douglas County at the time of the appointment of Ruckles? We think not. Section 2, of title 2, of chapter 2, of the statutes provides as follows : “ Every office shall become vacant on the happening of the following events, before the expiration of the term of such office“ 6. His refusal or neglect to take his oath of office, or to give, or renew his official bond, or to deposit such oath or bond within the time prescribed by law.” This statute clearly looks towards the renewal of official bonds; but upon whose application, and on the order of what tribunal, must such renewal be made ? Shall the State, the county treasurer, an execution creditor, or one of the county commissioners, move in the matter; and when, how, and where shall the proceedings be instituted ?

A board of county commissioners is a tribunal of limited j urisdiction. It possesses the power to fill a vacancy, because that power has been conferred by statute; and if the power to require a new bond, and to declare an office vacant, rests in that body, it is because that power also has been delegated to it. If Fullerton had forfeited his office, by reason of the insolvency of his sureties, or by reason of his failure to furnish a new bond, then the statute provides a remedy by action by the prosecuting attorney, on his information, or on the complaint of a private party. (See “ Actions in the place of scire facias, quo warranto, and of informations in the nature• of quo warranto,” chapter 1, sec. 5, of the Statutes.) Our statute also authorizes the governor to “ declare vacant the office of every officer required by law to execute an official bond, whenever a judgment shall be obtained against such officer, for a breach of the condition of such bond.” We have no provision of law which clearly authorizes the county commissioners to require a sheriff to execute a new bond, when a prior bond shall become insufficient, and to declare the office vacant in case of a failure to file such new bond. An officer, duly elected and qualified, is entitled to the enjoyment of-his office until lawfully deprived thereof, subject only to its clearly declared limitations and disabilities. The action of the board of - county commissioners, in requiring Fullerton to give a new bond, and in declaring a vacancy and supplying the office, was without warrant of law.

Judgment affirmed.