Affirming.
Mrs. R.B. Flatt was duly elected county court clerk of Hickman county at the November election 1921. She duly qualified and held the office for that term. She was a candidate for re-election in 1925, and was elected by a majority of over 1,000. She received her certificate of election. On the first Monday in January she and the county judge each took the oath of office. Her bond for the preceding term was given on January 7th, 1922. The agent of the surety company suggested to her that her bond need not be renewed until four years thereafter which was January 7th, 1926. When she took the oath of office she told the county judge what the agent had said about the bond; the county judge said to her that it would be all right, to have the bond prepared and to enter the order approving it on January 7th. She had the bond prepared and entered the order on the order book approving the bond, but on January 7, the county judge refused to sign the order approving her bond and took the minute book out of the clerk's office to his office. He there entered an order on the minute book removing Mrs. Flatt as county court clerk and appointed James A. Porter to the office. Porter thereupon executed bond, which was approved by the county judge by an entry on the minute book in his office. Mrs. Flatt refused to enter these orders on the order book. Thus things stood until September 22, 1926, when the commonwealth attorney brought this suit in the name of the commonwealth, praying the judgment *Page 187 of the court that Mrs. Flatt be required to vacate the office of county court clerk and to deliver all records in the office to James A. Porter. The defendant filed answer, stating the facts above set out. The plaintiff demurred to the answer. The demurrer was overruled. The plaintiff stood upon the demurrer. The court dismissed the action. The plaintiff appeals.
It appears from the answer that both the county court and the fiscal court were in session on January 4 and 5; the clerk was very busy in writing the minutes of the two courts and in drawing the orders, which she wrote up as soon as possible. Among them she wrote, up the order showing her qualification and the execution of her bond and bad the same ready for the county judge to accept the bond and sign the order book on the forenoon of January 7, and although on January 4 be bad told her to have the bond executed and he would accept it on January 7, he arbitrarily refused to accept her bond on January 7, or to sign the order which he had himself directed to be entered on the order book.
Section 3755, Kentucky Statutes, is as follows:
"If the official bond is not given, and the oath of office taken on or before the day on which the term of office to which a person has been elected begins, or in cases of persons appointed to office within thirty-days after such person has received notice of his appointment, the office shall be considered vacant, and he shall not be re-elegible thereto for two years. (Term of office begins first Monday in January after election. Con., sec. 99.)"
In Barnett v. Hart, 112 Ky. 728, it was hold that where a justice of the pence failed to qualify and give bond on the first Monday in January, the office was vacant, concluding its opinion the court said:
*Page 188"We have nothing to do with the harshness of the law, if, indeed it was harsh, which can not be fairly said, as we think, for the appellant had from the time he received his commission until and during the first Monday in January to comply with the statute, and there being no provision authorizing the county judge to take the bond at a later date, it seems to as that the judge could not lawfully or properly accept or approve, the bond after the first Monday in January."
In the subsequent case of Dorian v. Paducah, 136 Ky. 373, where the officer tendered his bond and it was arbitrarily refused, the court said:
"It is manifest that the general council, in refusing to approve the bond, did so for the purpose of recognizing Dorian as the city treasurer, and not because there was any valid objection to the bond. Its action, then, was arbitrary and without legal excuse. As Walters was eligible to the office and was duly elected, and as he took the oath of office and tendered a good and sufficient bond, and thereafter attempted to perform the duties of the office, and did in fact perform certain duties, we conclude that he did all that the law required him to do in order to entitle him to the office; and, having done all that he was required to do in the premises, he can not be deprived of his compensation by the arbitrary action of the general council in refusing to approve a bond which, by its subsequent approval thereof, it admits to be in all respect legal and sufficient."
This case falls within the principle thus announced. When appellee told the judge that her old bond was regarded by the bonding company as good until January 7, and would be renewed on that day, and lie told her to get up the bond and make the order on that day and he would sign it, the clerk had the right to go by his direction. The clerk of a court must work under the direction of the judge of the court. The orders must be entered as he directs and when he directs. It would be idle for the clerk to write orders which the judge had directed not to be entered. If the judge had told her she must give her bond on January 4, she would have done so. It was all the same to her whether it was given then or on January 7. The arrangement with the bonding company had been made and all that had to be done was to draw and sign the bond. This was not done at the direction of the judge, the fiscal court being in session and the presence of the judge and clerk being required in that court. The county court in taking a bond has the same power as in other cases to postpone a hearing of the matter. If an order had been entered on January 4, giving until January 7, for the, execution of the bond, this controversy would, perhaps, never have arisen. The failure to enter such an order was a mere irregularity. The clerk is not *Page 189 chargeable with this; she could not enter such an order unless directed by the judge, and he, in substance, told her what to, enter and she did as he directed. For him on the 7th to refuse to sign the order he had directed to be entered was to mislead her, and if so intended on the 4th was a fraud on her. However, we may assume that both of them acted innocently on the 4th, and that the conduct of the judge on the 7th was due to a changed conception of the law, made in the meantime, to the, effect that he had lost jurisdiction over the giving of the bond. We do not so construe the statute. This is not a case where the county judge, or officer authorized to take the bond, did nothing to mislead the officer offering to qualify, or one where the latter's predicament was the sole result of his own neglect. We construe the facts disclosed by the record to be tantamount to an offer on the part of Mrs. Flatt to execute her bond on the day she qualified if the county judge so required. Certainly, if she had actually tendered to him a properly executed bond at that time and he had declined to approve or accept it and thereby permitted the time to pass without such acceptance or approval, she would not be deprived of her office solely upon the ground that her bond had not been accepted or approved at the proper time. The facts are analogous to the principles relating to the doctrine of "tender" in the law, and when the presence of the thing tendered is waived by the one to whom the tender is made, it will be given the same legal effect. Here, the county judge waived the tender of appellee's bond on January 4, and continued her offer to do so until the 7th. After the county judge said what he did it would have been idle for appellee to tender her bond to him and for her to do this might well have been regarded by him as a disrespect. The clerk did all she could reasonably do, and it would be to extend the statute beyond its fair meaning to apply it in such a case.
It is earnestly insisted that the commonwealth is not affected by the laches of its officers. But while this is true the commonwealth does not impute laches to its officers and is not interested in converting innocent acts done by them into frauds on equally innocent third parties. The commonwealth is but the personification of all the people of the state, and certainly these people are interested in honest and fair dealing. The county judge is in charge of the county court, and an intention to mislead another to his prejudice will no more be imputed here *Page 190 than in other cases. In all other cases no one loses a right in obeying the direction of the court or is in a worse position than he was before.
"An act of the court shall prejudice no man."
"The above maxim 'is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law.' " Broom's Legal Maxims, 121.
This is peculiarly applicable to the clerk of the court who, from the very nature of his position, takes his orders from the court. The county judge should sign the order on the order book. No other question is considered.
Judgment affirmed. Whole court sitting. Chief Justice Clay and Judges Dietzman and McCandless dissenting.