State ex rel. Baird v. Slattery

108 Neb. 415 | Neb. | 1922

Letton, J.

Proceedings in mandamus to compel the county judge of Dawes county forthwith to indorse upon the official bond of relator, as county commissioner of Dawes county, his approval of the same. A. demurrer to the petition was sustained and the action dismissed. Relator appeals.

The petition alleges that relator was elected county commissioner for the third commissioner district of Dawes county at the November election, 1921, for a term of four years, to begin on the first Thursday after the first Tuesday in January, 1921; that on January 6, 1921, he filed a bond in due form with a penalty in the sum of $2,000, “which bond was joint and several in form and was signed by relator, by his duly authorised thereunto agent, as principal therein, and by the Lion Bonding & Surety Company, a Nebraska corporation, as surety; * * '* tbat on January 6, 1921, defendant said be would approve said bond, and immediately be did approve it and marked tbe samé filed and spread the same upon tbe records kept by him in bis said office as county judge for tbat purpose, but be has neglected and now refuses to indorse upon said bond a certificate of approval thereof; tbat immediately • thereafter said defendant received from relator by tbe bands of bis agent aforesaid a properly signed and sworn-to oath of office'as such commissioner. * * * And-relator is entitled under tbe law to have tbe defendant as it is bis official duty to indorse upon said bond tbe fact of its approval as well as tbe date of its filing.”

Tbe sections and parts of sections of tbe Bevised Statutes, 1913, bearing upon tbe question afie 5707, 5711, 5713, 5717, and 5721. Under these sections it is tbe duty of a person elected to a county office to file a bond in tbe penal sum required by tbe statute, with tbe oath of office indorsed thereon, on or before tbe time specified.

Tbe oath of office was not indorsed upon tbe bond which was tendered to tbe county judge. This is required by two sections of tbe statutes. There was an evident purpose on tbe part of tbe legislature to preserve tbe oath and bond together, and tbe county judge was fully within bis powers and duties if be refused to accept and approve such a bond. To approve it without the oath would be a patent disregard of tbe law.

Under section 5725, Bev. St. 1913, as amended by chapter 110, Laws 1917, the penalty required by law for tbe official bond of commissioners in counties of the population of Dawes county is in tbe sum of $2,000. Tbe tendered bond did not strictly comply with tbe statutes in this respect. Tbe bond in question is for double this amount, and while this irregularity perhaps would not relieve either tbe principal or surety in case of a breach of tbe bond, there was no duty resting upon tbe respondent to approve a bond not executed in accordance with tbe provisions of the law.

If the allegations of the petition are taken as true, the purpose of this proceeding is to compel the respondent to spread upon the record evidence of the fact that he had violated the law. It is true that the demurrer admits all allegations of the petition, well pleaded, but the court will not grant the writ of mandamus to compel an illegal act, or to compel evidence of such a violation of law to be recorded for the benefit of one who has failed to follow its directions. The allegation that an oath was filed, not before, but immediately after the approval, shows that the relator was in default of his duty when he tendered the bond. If he desired to accept the position to which he had been elected, he should have complied with the conditions precedent which the statute required. If the statute is unjust, or if it places too great a penalty on dilatoriness, it is for the legislature to amend it.

It may be said that to admit the allegations of a petition by demurrer in a case where the briefs indicate that there is a conflict as to the facts is a dangerous practice for the demurrant, and is an unsatisfactory manner of presenting the true issue to a court.

We find it unnecessary to consider or discuss the question whether the plea that an official bond was signed by the principal, “by his duly authorized thereunto agent,” pleads the execution of a valid and legal bond.

No legal duty is upon respondent to indorse his approval upon the tendered bond.

Affirmed.