65 Wis. 163 | Wis. | 1886
We think the nonsuit cannot be sustained on the ground that the record does not show jurisdiction of the board to make the order. The defendant was. removed from the office of county clerk of Ashland county by an order of the county board dated February 13,1884, and the relator was appointed to fill the vacancy. The ground of removal, as stated in the order, was for official misconduct and wilful neglect of duty. It is objected on the part of the defendant that the order removing him was void on its face, because it fails to specify the particular act or acts which show that he had been guilty of official misconduct or neglect of duty. It is said that these facts should be stated with such fulness and precision that a court could
But the nonsuit was right, because it appeared the relator had failed to qualify within the time prescribed by statute. The relator himself states that he was informed of his appointment by the chairman of the board, on the day the order was made or the day after. He demanded of the defendant the books, papers, and records appertaining to the office. It appears, however, that his official bond was not filed until the 25th of March, 1884. The statute clearly provides that before he entered upon the duties of his office, and within twenty days after receiving official notice of his appointment, he should execute and deposit his official bond, and within the same time take and subscribe the oath of office. Sec. 701, E. S. A neglect or refusal to do these things within the time prescribed creates a vacancy in the office. Sec. 962, E. S. The relator was appointed to fill an unexpired term. He states that he was informed by the chairman of the board of his appointment on the day the order was made or the day after. He should have qualified within the time prescribed by law. State ex rel. Ames v. Southwick, 13 Wis. 365. It is said that the relator made and subscribed both the official oath and bond in due form, and that the bond was approved by the proper officers. The
But it is said tbe relator was under no necessity to file bis oath of office and bond under tbe circumstances, nor was be required to do so. It is claimed that be could qualify under see. 3471, R. S., after judgment of ouster against tbe defendant, with tbe same force and effect as if be bad qualified tbe day of bis appointment. We cannot adopt that view of tbe section. It appears that this action was not commenced until December 13, 1884; and tbe term for .which tbe relator Avas appointed expired on tbe first Monday of January, 1885, long before this action was tried. It is very apparent from tbe language of sec. 3471 that it was not intended to apply to a case like this. Tbe respondent, having been elected to tbe office, bad tbe right to bold it until bis successor was qualified. Sec. 698, R. S.
By the Court.— Tbe judgment of tbe circuit court is affirmed.