State ex rel. Attorney-General v. Churchill

41 Mo. 41 | Mo. | 1867

Holmes, Judge,

delivered tire opinion of the court.

This is an ex officio information in the nature of quo warranto. The defendant, having been duly summoned, makes default, and the cause is submitted as upon a petition confessed.

It is stated that Jasper N. Norman was duly elected treasurer of the County of Laclede at the election in November, 1866, received his certificate of election, gave his bond, which was approved by the County Court and ordered to be filed, and took the oaths required by law, which were enclosed in his certificate or commission; but that a few days afterwards, on motion of the county attorney, the County Court made an order rescinding the approval of the bond, and declaring it annulled, for the reason that it had not been offered and filed within ten days after the election, as required by the statute—G. S. 1865, ch. 38, § 5. The court also declared the office vacant and proceeded to appoint the defendant county treasurer, who gave the required bond, was duly qualified, and entered upon the duties of the office.

We think the court erred in this proceeding. The bond was not void, nor voidable, merely because not presented and filed within the ten days. This provisio.n of the statute is directory only. The matter of time was not essential to the validity of the bond, nor a condition precedent to the party’s title to the office. The time not being of the essence of the thing required to be done here, it was not material—Rex v. Lexdule, 1 Burr. 497; Sedgw. Stat. & Const. Law, 368-74. When a sheriff was required to give bond within twenty days after his election, it has been held that the statute as to the time of giving the bond was directory merely, and that the failure to give the bond within that time did not forfeit his title to the office—People v. Holly, 12 Wend. 481. We are of the opinion that the orders of the court vacating the bond, declaring the office vacant, and appointing the defendant treasurer, should be regarded as having been done without authority of law and as mere nullities. The treasurer elect, having complied with all the provisions of the statute and received his commission, was entitled to hold the office.

The defendant not appearing to have been guilty of any intentional wrong, no fine will be imposed. Judgment of ouster and costs will be entered.

The other judges concur.