People ex rel. Risk v. Fletcher

3 Ill. 482

• Court: Illinois Supreme Court
• Decided: December 15, 1840
• Status: Published

Opinion

Smith, Justice,

delivered the opinion of the Court:.

This is a petition for a writ of mandamus to the clerk of the Circuit Court of Kane county, to compel him to administer the oaths of office to the relator, as sheriff of that county, to receive and file his official bond, and deliver to him his commission, which, it is admitted, he has in his possession. By an agreement appended to the petition, the parties admit that the facts stated in the petition are truly and correctly stated, and that these facts are to be treated by the Court as if they had been contained in the return of the respondent to an alternative writ of mandamus. (Justice Smith here recited the facts as set forth in the petition.)

On this state of the case, the first enquiry is, what was the duty of the clerk of the Circuit Court? We are of the opinion that the filing of the bond of the sheriff, and administering the oaths of office, is merely a ministerial duty. The clerk has no right to take upon himself to judge as to the qualifications of the sheriff, or to determine what will be the effect of his performing his duty. He must perform what the statute has required of him, without regard to the consequences. If there is any controversy about the title to the office, it cannot be enquired into collaterally. A proper proceeding for the purpose, is by writ of quo warranto.

But the enquiry arises what was the duty of the judge of the Circuit Court, and in what light is his act approving the bond to be considered ? We are disposed to think that this too is a ministerial act. He is to enquire into the sufficiency of the surities, and then to certify it on the bond. This service is certainly personal, and it may be partly judicial, and partly ministerial. But we are satisfied, that when he has approved of the bond, his duties cease, and he has no more control over it. It is then perfected, so that the sheriff can at any time thereafter, within the time limited by law, file the bond and qualify himself to enter upon the duties of his office.

By the second section of the act

(1) concerning sheriffs and coroners, the sheriff elect is required within thirty days after receiving the notice from the clerk, to enter into bond to the people of the State, to be approved by the judge of the Circuit Court of his county, at the term next after the date of such bond ; and at the time of giving the bond, he is required to take and subscribe before the clerk of the Circuit Court, the oaths required by law. The act contains this proviso, that if no Circuit Court shall be holden within thirty days after the notice of the commission is received, as provided in the first section, the clerk may approve the bond, which shall be good and valid until the end of the next term of the Circuit Court. We think it clear, that, in the performance of all these acts, the clerk acts merely ministerially, and is not acting under the control or direction of the Court; and that the giving of the bond is the act of delivery by the sheriff himself, or by some one duly authorized to act in his behalf; and that the bond has no effect till thus delivered to the clerk, to be by him filed and recorded.

And this construction is fortified by reference to the third section of the act. This section directs that the oaths taken and bond given, as required by the second section, shall be filed and recorded by the clerk of the Circuit Court; and the taking of the oaths shall be certified by him on the back of the commission. The only reasonable construction to be given to this language is, that" all these acts, thus required of the clerk, are to be performed by him as clerk, acting ministerially, under the direction of the law, and not under the direction of the Court; and they may be done as well out of court, as in court.

Another question presented for our consideration is, whether the sheriff elect, the r. lator in this case, had the full thirty days after notice by the clerk of the receipt of his commission, within which to qualify himself, by filing his bond and taking the oaths required by law.

On looking into the 4th section of the same act, we find a provision, that if the sheriff shall neglect or refuse to enter into bond, and “take the oaths above required, within the time above specified, the office shall be deemed vacant.” These words, “ the time above specified,” can refer only to the thirty days mentioned in the second section, within which the bond is to be given, and the oaths taken; and, until the expiration of that time, the office does not become vacant. We think the thirty days are to be computed from the time of the notice given by the clerk, and this time is allowed him whether a term of the Court intervenes or not.

We are therefore of opinion, that a peremptory writ of mandamus issue, directed to the respondent, requiring him to receive, file, and record the bond of the relator, and administer to him the oaths of office, and deliver to him his commission, and to do all things in the premises, which the law and justice require.

Peremptory writ of mandamus awarded.

R. L. 573 ; Gale’s Stat. 652, 653.