90 Kan. 778 | Kan. | 1913
The opinion of the court was delivered by
The state, on the relation of the county attorney and the attorney-general, brought this action to remove the defendant from the office of treasurer of school district No. 63 of Wabaunsee county. In 1908 the defendant was elected, and having served out his term was reelected in .April, 1911. This action was brought in August, 1912, to oust for failure to give a proper bond. The defendant having failed to qualify, and his attention being called to the matter, he tendered a bond in July, 1912, in the sum of $8000, which appears to be about equal to instead of double the amount of money coming into his hands annually. Upon this instrument was an official oath executed by the defendant. Certain objections being made by the clerk to the form of the bond and to the justification, in addition to the sum named in the obligation, he refused to approve or file, although the director was willing to approve. In November, 1912, the defendant tendered another bond naming a penalty of $20,000 on which the sureties justified respectively in the sums of $10,000,- $4000 and $10,000, and the defendant in the sum of $5000, the obligation expressly covering the time since April 14, 1911. This the clerk refused to approve. A third bond was offered early in 1913, and rejected.
The statute (Gen. Stat. 1909, §§ 5469, 7444) requires district officers, before entering upon their official duties, to take and subscribe an oath to faithfully perform such duties, and authorizes the chairman of regular and special meetings to administer such oath, but it does not require that it be placed on file. Section 7445 provides that any such officer who shall refuse or
The, plaintiff contends that the default of the defendant in relation to giving a proper bond justifies an ouster, and that upon his holding over without qualification the sureties on his previous bond were not bound for any default occurring after the close of his original term, or at most for only a reasonable time thereafter, and that the failure to qualify had the effect of leaving the district unsecured for the funds in his hands.
It is urged by the defendant that having continued to act and having been recognized for more than one year by the board, including the clerk, and having attempted to comply with the statute in July, and having tendered a sufficient bond in 'December, he can not be held to have forfeited his office, and that having held over, and no successor having been appointed and qualified, no one else has become entitled to the office, and that his tender of bonds before judgment of ouster should be deemed a good defense. •
It is not claimed that failure without sufficient cause to qualify within twenty days creates a vacancy, but only that it forfeits the right to the office and justifies removal. Just what is meant by “sufficient cause” is difficult to determine, but mere carelessness or neglect to qualify for more than a year could by no process of
No reason is suggested why the $20,000 bond was not good and none appears from the record. Had it been approved the funds would have been amply secured, and while it is true that it was not tendered until some
Assuming that a good and sufficient bond covering the entire term from April 14, 1911, will forthwith be furnished and approved, the relief prayed for is denied, subject to a summary order of ouster on a showing of the defendant’s failure to do as indicated.