Dowling v. Smith

9 Md. 242

• Court: Court of Appeals of Maryland
• Decided: June 15, 1856
• Status: Published

Opinion

The Judges delivered separate opinions in the case.

Le Grand, C. J.:

Looking to the proper interest manifested by a large portion of the community in the questions supposed to be involved in this case, and differing, as I do, in some particulars, from the opinion pronounced by my brother Mason, (which is concurred in, to a considerable extent, by my brother Tuck,) I deem it advisable to briefly indicate the views which I entertain in regard to the matter embraced by these appeals.

The case is before us on two appeals. First, on an appeal from an order passed by the judge of the Superior Court for Baltimore city, declaring the office of the clerk, of said court, vacant. And Secondly, from an order directing the appellant, Dowling, to surrender to the appellee, Smith, all the books, records, &c., belonging to the oiflce of the clerk of said court.

The appellant, Dowling, in November 1851, was elected to the office of clerk of the Superior Court, and shortly thereafter gave the necessary bond, and took the oath prescribed by the constitution.

There is no question that he was properly inducted into office: that is to say, in strict conformity with the requirements of the constitution and the then existing laws. Nor is there any question as to his compliance with the act of 1853, chap. 409. If hé be out of office, he is so, only, because of an alleged noncompliance with the act of 1856, chap. 286.

The office of clerk to the Superior Court for Baltimore city, is created by the 14th section of the 4th article of the constitution of the State. After reference to other matters, it declares: “There shall also be a clerk of the Court of Common Pleas, in Baltimore city, and a clerk of the Superior Court of Baltimore city, and there shall also be a clerk of the Criminal Court of Baltimore city; and each of the said clerks shall be elected, as aforesaid, by the qualified voters of the city of Baltimore; and shall hold his office for six years from the time of his election, and until a new election is held, and be re-eligible thereto: subject, in like manner, to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law.”

The 16th section, of the same article of the constitution, provides, that “All laws relating to the clerks of the Court of Appeals, clerks of the several County courts and Baltimore city court, shall be applicable to the clerks, respectively, of the Court of Appeals, the County courts, the Court of Common Pleas, the Superior Court, and the Criminal Court of Baltimore city, until otherwise provided by law.”

By the 14th section of the 4th article, it is provided, that “In case of a vacancy in the office of a clerk, the judge or judges of the court of which he was clerk, shall have the power to appoint a clerk, until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy.”

It is under these clauses of the constitution, and the provisions of the act of Assembly of 1856, chap. 286, tire authority is claimed for the judge of tire Superior Court, to vacate the office of the clerk to his court.

It is manifest, from these citations, that all laws relating to clerks of the several courts, which were in force at the adoption of the constitution, continued so, and, as applicable to the clerk of the Superior Court, “until otherwise provided by law. ” Until the act of 1853, chap. 409, there was no attempt, since the adoption of the present constitution, to alter or modify, in any particular, (so far as bonds of clerks are concerned,) the laws existing previously thereto. Dowling entered into his office in the year 1851, and bonded. His bond was, consequently, given under the act of 1800, chapter 82. Its condition covered the whole period “during his continuance in office;” that is to say, for the period of six years, should he continue in office such a length of time.

The act of 1853, chapter 409, did not, in any wise, change the condition of the bond, which it required the clerk of the Superior Court to enter into. Its whole office was to change the amount of the penalty, and to fix the time within which, after the passage of the act, the bond required should be given, The obligation of the bond given under this act, extends over the whole period of his continuance in office, or at least, until such time as he shall give a bond, as required by the act of 1856, chapter 286. If, therefore, the bond executed in 1853 be a good bond, the public are not without security against any neglect, or failure to discharge his official duty, by the clerk. This is my opinion.

I entertain no doubt that it was competent to the legislature to pass, (with the exception of the 5th section,) the act of 1856, chapter 286. The 16th section of the 4th article of the constitution, expressly authorises the legislature to alter.the laws relating to the clerks: but it does not authorise an alteration of the constitution itself. Did such a power exist in the legislative branch of the government there would be, in fact, no constitution. Its provisions would depend wholly upon the wisdom or caprice of the members at each recurring Assembly. To admit of such a power in the Legislature would be to ignore all our consecrated ideas of the protection furnished to our rights of person, liberty and property, by Magna Charta and our Bill of Rights, both of which provide and guarantee, that we shall not be dispossessed of anything, except by the judgment of our peers.

Whilst I hold, with the exception of its 5th section, the act of 1856, to be a legitimate exercise of legislative power, I am still clearly of opinion, that that section is an infraction of the organic law, and in this, that it seeks to provide for the removal of a clerk, in a manner directly in conflict with the one prescribed by the constitution.

If the legislature exact of a clerk the renewal of his bond, and he refuse to comply, such refusal is a neglect of duty, inasmuch as he is bound to conform to all laws relating to him as clerk, and to his office as such; and he may be convicted for the same, in a court of law, and amoved. It is proper, however, to observe, that the mere failure to give bond, within the time prescribed, is not, ex necessitate, such a "wilful " neglect of duty as would, under every possible state of circumstances, command a conviction. It is not every neglect of duty which will, under the constitution, justify a conviction; it must be a "wilful” neglect. The importance of this word, in this connection, is made manifest by contrasting the section of the constitution, in which it is found, with the language of the 3rd section of the 4th article. In the latter it is said: «The Court of Appeals shall appoint its own clerk, who shall hold his office for six years, and may be re-appointed at the end thereof; he shall be subject to removal by the said court, for incompetency, neglect of duty, misdemeanor in office, and for such other causes as may be prescribed by latv.”

By this part of the constitution, it will be seen, the clerk of the Court of Appeals may be removed by the court for any neglect, wilful or not; and that the power is reserved to the Legislature to prescribe other causes of removal than those specified in the constitution. This is not so in regard to the clerks of the Circuit Courts, nor of the clerk of the Superior Court, nor of the clerk of tire Court of Common Pleas, nor of the clerk of the Criminal Court. So far as they are concerned, the judge of the particular court has no power to remove; they must be convicted «in a court of law; ” and if the conviction be for a neglect of duty, such neglect must be «wilful, ” and of the wilfulness in the particular instance, the jury must be the judges.

The distinction in the constitution, between the power of the judges of the Court of Appeals over their clerk, and that of the judges of the other courts over their clerks, is obvious and broad, and wé cannot but hold, that to the convention which framed the instrument it was apparent, and was by it intended to be so.

The fact is, the constitution, in regard to nearly all the officers recognized by it, points out the manner, mode and causes of removal; and it is a well settled principle of construction, that where a right or franchise is conferred, subject to be divested in a manner specified, the manner so designated must be pursued. It is to such cases the maxim, expressio unius est exclusio alterius, properly applies. And so, accordingly, it has been frequently held, both by courts of law and legislative bodies, that where certain qualifications are specified, as those constituting the right of a party to hold and enjoy an office, and no power by the constitution be reserved to the legislature to add to or take away therefrom, the enumerated requisites are all that can be insisted upon. I agree with my brother Eccleston in what he has said in regard to the action of the Superior Court. The matter was coram non judice, and, therefore, of non-effect.

The result of the opinion pronounced by the judges of this court is, that the orders of the Superior Court, in the premises, be reversed.

Order reversed.

Eccleston, J.:

Although the clerk of the Superior Court of Baltimore city may have failed to procure the approval of his official bond, according to the provisions of the act of 1856, ch. 286, within the time prescribed by that act, still I do not think, that for such failure, the judge of the court had the right to declare the office vacant, and to pass the orders which he did, for the purpose of filling the vacancy. The language of the act must be construed with reference to the provisions of the constitution on the subject; and, in my opinion, notwithstanding the failure to procure the approval of the bond in due time, the judge had no authority to treat the office as vacant whilst Dowling continued to claim it, until, for such failure, he was convicted in a court of law of “wilful neglect of duty” in office, according to the 14th section of the 4th article of the constitution.

Believing the action of the court below was erroneous, I think there should be a reversal, and therefore need not inquire whether the proceedings, in point of form, were irregular or not.

Mason, J.:

The main question for our determination upon the present appeal is, whether the act of 1856, chap. 286, is a constitutional exercise of power upon the part of the legislature? That act provides, that the clerk of the Superior Court of Baltimore city shall execute a bond with securities, &c., within thirty days from the passage of the law, and in the event of his not doing so, the 5th section provides, that it “shall be deemed a disqualification within the meaning of the constitution, and thereupon his place shall be filled according to the provisions of the 14th and 18th sections of the 4th art. of the constitution.” It is supposed that these requirements are inconsistent with the terms of the constitution which relate to the clerks of the several courts in this, that the act superadds a qualification, and provides a mode of removal from office not contemplated by the letter or spirit of the constitution; and this question is to depend upon the proper construction of that instrument.

The true meaning and spirit of the constitution can only be collected from an interpretation of its several parts relating to the same subject, taken in connection with each other. And in determining the constitutionality of statutes, comity requires, that acts of a co-ordinate branch of our government are never to be declared, by this court, to be unconstitutional and void, except upon the clearest conviction that they are repugnant to the organic law.

The terms of the constitution, which are to control this question, are to be found in the 14th and 16th sections of the 4th article. By the 14th section it is provided, that “there shall be a clerk of the Superior Court of Baltimore city elected as aforesaid, by the qualified voters of the city of Baltimore, and shall hold his office for six years from the time of his election, &c., subject in like manner to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law.”

If this provision stood alone it might be a very grave question, whether the legislature could require any additional qualification for the clerk, such as giving a bond, inasmuch as no such qualification is enumerated in this section; but we are relieved from any difficulty upon this point, so far as the requirement of a bond is concerned, by the 16th section. That section provides, that “ all laws relating to the clerks of the Court of Appeals, clerks of the several county courts, and Baltimore City Court shall be applicable to the clerks, respectively, of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court and the Criminal Court of Baltimore city, until otherwise provided by law; and the said clerks, when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging to their respective offices. ”

If there was doubt as to the previous section there is none as to this. It intended to make applicable to the clerks elected under the new constitution, so far as they might relate thereto, all the laws then in existence, relating to the former clerks; and further to empower the legislature, from time to time, to amend or repeal those laws at will. In other words, upon every subject upon which statutes were in force relating to clerks, it was the design of the constitution to empower the legislature to legislate upon the same subjects. But it was not the purpose of the constitution to authorise the legislature, under the shadow of this power, to impose new duties and qualifications not contemplated by the constitution or the then existing acts of Assembly. Among the laws relating to the former clerks, at the time of the adoption of the present constitution, were those requiring official bonds. We do not deem it necessary to go into an examination as to the precise state of the law upon this subject. It is sufficient for us to know, that the laws required bonds to be executed by the clerks, and therefore the power was vested in the legislature to regulate the subject, if it should be deemed necessary, by subsequent acts. We think it clear, therefore, that it was within the power of the legislature to pass the act of 1856, chap. 286, so far as it requires the execution of a new bond by the clerk, and for its renewal every two years. It was simply otherwise provided bylaw as to the nature of the clerk’s bond.

This leads us to the consideration of other and more difficult questions, namely, whether, in case of the neglect of the clerk to give the bond as required by the act, the effect of such omission would amount, ipso facto, to a vacation of the office; or if not, whether the legislature has power to provide for the removal of the clerk and for the appointment of his successor in case he fails to give the bond as required.

We are of the opinion, that unless the omission to give the bond, of itself, vacated the office, the legislature had no power to confer upon the Superior Court the right to turn the clerk out upon any pretext or proceeding whatever, for the reason that the said 14th sec. expressly provides, that he shall be removed on conviction in a court of law; and as there could be, under the constitution,-no proceeding in the Superior Court in the nature of a criminal prosecution, against the clerk, there could be no conviction in that court, and, therefore, no removal. The point then is, has the clerk, by omitting to give the bond, in the spirit of the constitution and laws, actually vacated his office, in the same manner as if he had resigned, removed from the State, or the like; or has he only done, or omitted to do, an act which amounts to such a wilful neglect of duty, that, upon conviction of which, he forfeits his office? If -the first, “ it was a case of vacancy in the office, ” and the Superior Court was right in filling the place, as is required by the aforesaid 14th section; but if it was the second, the court was wrong in attempting to fill the office before it had been made vacant by a conviction in a court of law.

' We cannot shut our eyes to the fact, that it was the design of the constitution, and the laws existing at the time of its adoption, that this clerk should give bond, and that such bond should constitute an essential qualification for the office. It would hardly be contended, that Mr. Dowling could have entered rightfully upon the duties of his office upon the mere force of. his election alone, without giving a bond under the constitution and laws as they then stood. The language of the constitution, that the clerks, “when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging to their respective offices, ’ ’ is equivalent to saying that they shall not act or be considered as in office until they shall have qualified; and one of the modes of qualification is giving bond. "What official act could a clerk perform without having “ the charge and custody of the records and other papers” of the office? Yet he cannot have these without first giving a bond.

In the exercise of the power conferred by the constitution, to otherwise provide by law, for the regulation of the bonds of the clerks, the Legislature passed the acts of 1853, chap. 409, and 1856, chap. 286. The first of these acts required a new bond to be given within thirty days after its passage, in the penalty of $30,000, and contemplated the continuance of the bond during the term of office. This act, in its letter and spirit, was complied with. The act of 1856, differed substantially from the previous act, only in requiring the renewal of the bond every two years. It is not necessary, in this connection, to decide how far the bond, under the act of 1853, continues in force, notwithstanding the failure to bond under the act of 1856. It is probable it would continue in force, inasmuch as it was intended to cover the whole term of the clerk. But it is clear, that any bond executed under the act of 1856, to run for two years, could not bind the obligors on that bond for official acts done by the clerk, after the expiration of the two years, because the extent of the obligation, under the law, was for the faithful discharge of the duties of the clerk for two years only, and that obligation, by construction, cannot be enlarged. Robey vs. Turner, 8 G. & J., 125. At the end, therefore, of the two years, if the clerk should fail to renew his bond, we would have either the office, with its records and papers, in the possession of a clerk acting without the obligations of a bond, or the office would be vacant. Wé have already said the constitution and laws contemplate a bond for the public security, and that the clerk could not get possession of the office until he gave such bond. Is it not virtually a contradiction, in terms, and a violation, at least, of the spirit of our system, to say, that while he cannot get into the office without first giving a bond, yet, after he does get in, the clerk may hold it without any"? But it is said, he may be convicted in a court of law, and removed, for not giving the bond, regarding the omission to do so, as a “wilful neglect of duty, or other misdemeanor in office. ” During the slow process of this prosecution he-is to continue in office, perpetrating, if he pleases, all manner of wrong against the public, without any bond to protect them against the consequences of such official misconduct. But, in addition to the removal from office, as a penalty for wilful neglect of duty, or other misdemeanor, the law contemplates that the public, as well as individuals, shall find indemnity and redress against the clerk for such official misconduct in his bond; and it was never, therefore, the design of the constitution and laws, that there should ever be a clerk without a bond. The object of the bond, as has been remarked, was to afford security and indemnity against the toilful neglect of duty, or other misdemeanor in office, on the part of the clerks, and if it was contemplated, that there could be no clerk without a bond; neither, as a consequence, could there be any wilful neglect, or other misdemeanor in office, without a bond to cover it. But if not giving the bond be a wilful neglect of duty, or misdemeanor in office, then there is a neglect of duty or misdemeanor not coyered and provided for by the bond; and that, too, such a neglect of duty as almost to embrace within its scope and consequences every other neglect of which the clerk might be guilty; for if the clerk is himself irresponsible, and has given no bond, there is no pecuniary indemnity against his official misconduct.

The 14th section of the constitution, already cited, provides, that “in case of a vacancy in the office of a clerk,” the judge may appoint the successor. The constitution is silent as to what is to constitute such vacancy, or how it may occur. It would certainly hardly be contended that this term would only embrace a vacancy resulting from a conviction. If it did, death, resignation or removal from the State, could not be regarded as such vacancy. We do not doubt for one moment that the term vacancy was employed in the constitution in its usual signification, and that it embraced every event or act, such as death, resignation and the like, and every other conduct from which, in legal contemplation, or actual intendment, the party is understood as having vacated the office, as well as a vacancy resulting from a conviction in a court of law.

The omission of the clerk to give the bond was equivalent to a resignation, removal from the State, or the acceptance of another inconsistent office. He was guilty of an act of omission, as inconsistent with the tenure of the office, as if he had accepted the office of collector of the port of Baltimore, or bona fide removed to California, either of which would have, beyond question, amounted to a vacancy within the meaning of the constitution.

In the case of Van Orsdall vs. Hazard, 3 Hill Rep., 243, the court announce some general principles quite applicable to the case now before us. It is there said that “a vacancy may sometimes arise from a mere implied resignation, as by accepting an office incompatible with that which is claimed to be vacant.”

The clerk in this instance took his office burthened with the obligation to discharge its duties and accept its emoluments, only under the restraints and penalties of a bond, and upon the condition imposed by the constitution, that the Legislature should have power from time to time to regulate the nature, amount and duration of the bond. If he fails to comply with the requirements of the Legislature in this particular, he is no longer clerk. He vacates the office by his own act. He puts himself out. The alternative presented to the clerk is, give bond and remain in office, or omit to do so, and go out. The proposition is a plain one, about which there can be very little room to dispute in regard to facts. It is not a neglect of duty, or a misdemeanor within the meaning of the constitution. These may depend upon a number of contingencies, and therefore a proper subject of investigation before a jury in a court of law.

The constitution of the State of Arkansas provides, that “the qualified voters of each county shall elect one sheriff, &c., for the term of two years. They shall be commissioned by the Governor, reside in their respective counties during their continuance in office, and be disqualified for the office a second time, if it should appear that they or either of them are in default,” &c. Art. 6, sec. 17, Con. Ark. Dig., 64.

By a statute of the State, Dig., 871, “the sheriff of each county shall be ex officio assessor for the county.” The same statute requires, that to qualify the sheriff to act as assessor, he shall, “ on or before the 10th day of January in each year, make and file in the office of the clerk an affidavit, in the following form, &c., and if any sheriff shall neglect to file such affidavit within the time prescribed, his office shall be deemed vacant, and it shall be the duty of the clerk, without delay, to notify the Governor of such vacancy.”

In the case of Parker & others, vs. Overman, 18 Howard, 137, the Supreme Court were called upon to interpret these several provisions in the laws of Arkansas. The question was one of title to land, and depended upon the regularity of a tax sale. The objection to the sale was that the land was not legally assessed. Upon the point we cite from the opinion of the Supreme Court:

“ The record shows, that Peyton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor on or before the tenth of January, as required by law. He did file an oath on the fifteenth of March, but this was not a compliance with the law, and conferred no power on him to act as assessor. On the contrary, by his neglect to comply with the law, his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale. The neglect also to file his assessment and give immediate notice on the 25th of March, so that the purchaser might have his appeal at the next county court, was an irregularity which would have avoided the sale, even if the assessment had been legally made.”

It will be seen that the office was, by the statute, (which was sustained by the court,) declared to be vacant upon the omission to make the affidavit. In the case before us the statute declares the office vacant upon the failure to give the bond, and as our constitution contemplates by its express provisions, that a bond shall constitute an essential element in the qualification of a clerk, and as the constitution of Arkansas is silent upon the subject of the sheriffs making any affidavit, the case decided by the Supreme Court is even stronger than the one we are now considering. In both cases the act of omission to comply with the law, is not regarded or treated as a ground for removal from office, but as constructive evidence of an actual abandonment of the office by the incumbent.

There is nothing in the judicial decisions of our own State repugnant to the views expressed in this opinion, but, on the contrary, they rather tend to sustain them. 6 Har. & John., 96. 7 G. & J., 253. 8 Ibid., 125. 9 Ibid., 15.

The suppositive case, that the Legislature might impose upon the several clerks duties or obligations in giving bonds or otherwise, which it might be impossible or wrong for them to comply with, is not this case. We are not to strain our vision to find improper or corrupt motives in the Legislature for the passage of any law. It is our duty to enforce acts of Assembly whenever we can. But where we find acts or duties imposed upon public officers or individuals by the Legislature, which it would be impossible for them to perform, or wrong to respect, a different-state of case would be presented than the one now before us, and when such does arise we shall be prepared to act. In the law before us, we can discover nothing that is unjust or unreasonable. Indeed it is almost a copy of the act of 1853, which was complied with, promptly and without complaint, or difficulty.

The case before us presents a question of jurisdiction. If the question was, whether the clerk in not giving the bond was guilty of a neglect of duty, as defined by the said 14th sec. of the constitution, and a forfeiture of his office was the penalty, then the Superior Court has no jurisdiction over the subject. But if the omission to give bond vacates the office, then the jurisdiction belongs to the Superior Court, and the issue of fact to be determined is simply, has the clerk failed to give the bond? That issue, when determined by the court below upon the facts, is subject to be reviewed by .this court upon appeal, and the question now is has the issue been established? And the same rule would apply if the question was whether the clerk had resigned, or bona fide removed from the State.

It appears from the record that the act of 1856 passed the House of Delegates on the 7th day of March, and the Senate on the 8th, and that it was engrossed on the 10th. Mr. Dow-ling’s bond appears, from the statement of the judge, to have been approved on the 8th of April, and, by the statement of the comptroller, that it was presented to him for approval on the next day, namely, the 9th of April. In this aspect of the case the question is, was the bond executed and filed with the comptroller within the time prescribed by the act of 1856? and this presents the further question, at what precise point of time does an act take effect? If the law went into operation as soon as passed by the Senate, the bond was not in time, but if it takes effect only from its engrossment, then it was in time and the act of Assembly has been complied with.

I am clear the law was not perfected until it' had been engrossed. It is not necessary to examine how far a law would be defeated for want of engrossment, but we are not to assume that such omissions or neglect of duty would occur, but we must assume that all things will be done, and rightfully done, which the law requires. I only say that notice of the existence of a law, penal in its character, can only be imputed to persons interested therein, from the date of its engrossment.

It would be unjust to require any party to know the existence of a law while it is in its crude state previous to engrossment. When amendments have been made, or rejected, pending a bill, it becomes a matter of importance, in order to understand precisely the true purport of the enactments which may have been adopted, that every provision should be clearly and distinctly written out in their proper order, and this is the office of engrossment. Till this is done the law has not been perfected.

Upon this subject, Jefferson, in his Manual, sec. 31, says: “In reducing numerous, difficult and illegible amendments into the text, the secretary may, with most innocent intentions, commit errors,” &c.: and, if the secretary cannot know the contents of an act until it is engrossed, how much more difficult would it be for strangers?

After a careful examination, I have been unable to find any case deciding this very point, and therefore it must be determined, as a new question, upon general principles.

Formerly it was the practice to engross bills before their third reading, and not afterwards to receive amendments, but Jefferson, in his Manual, sec. 31, says this practice has been departed from, and bills are now amended upon their third reading and afterwards engrossed. This only shows that engrossment is an essential part of legislation. The same author says, sec. 48, that bills are to be signed by the respective presiding officers, after the engrossment — hence it is to be inferred that the act was not complete till engrossed. Bouvier, (Law Dic., Vol. I, page 273,) says, in regard to the proceedings of Congress, that “when a bill is engrossed, and' has received the sanction of both houses, it is sent to the President for his approval;” and the same is said in 8 Bacon Abr., 214. From this it appears, that after the engrossment the sanction of both houses is necessary. In a recent case in California, The People vs. Clark, 1 Cal. Rep., 407, the court say: “If no time be specified when a statute shall be in force, it ought to go into effect from and after its passage, that is, from and after the point of time when its existence is perfected.” In the matter of Richardson, 2 Story's Rep., 580, it is said by the learned judge, “If there be any choice, as to the principle of interpretation, one should think that pught to be adopted, in cases of this sort, which is most favorable to private rights and public justice;” and these remarks were made in regard to the very question now before us.

From what I have said, I am of opinion, that in point of fact, so far as we can learn from the disclosures in the record, the bond was given in time, and that the comptroller might have accepted the bond as required by the act of Assembly.

Inasmuch as there has been no default on the part of the clerk, the bond may still be approved and filed, and said approval would relate back to the day when the bond was presented by the clerk at the office of the comptroller.

Not regarding the office of the clerk to be vacant, it was an error in the Superior Court to appoint General Smith.

Tuck, J.:

I am of opinion that the judge correctly declared the office of clerk to be vacant, on his neglect to comply with the act of 1856, ch. 286, without expressing any opinion as to the constitutionality of the fifth section. The constitution and laws vacated the office by such omission, on the part of the incumbent, to continue his bond, which I deem necessary to his discharging its functions, and the fact of omission was a matter to be ascertained by the judge.

The office being vacant, the judge had a right to fill it, and this having been done, it was competent for him to pass an order, after the qualification of his appointee, directing the appellant to surrender the office to him.

I agree with the views expressed by my Brother Mason, on this part of the case, and think the orders appealed from should be affirmed. Differing from him as to the time when a bill passed by the Legislature becomes a law, I think the act under which these proceedings were had was consummate on the 8th of March, and that, consequently, the bond was not filed in the comptroller’s office within the time limited by law.