dissenting.
It is evident that the question whether Lansing’s failure to execute, have approved, and filed his official bond by the first Thursday after the first Tuesday in January, 1894, created a vacancy in the office of county judge, must depend upon the construction of the following language found in section 15; chapter 10, Compiled Statutes: “His office shall thereupon ipso facto become vacant.” What is the meaning of the expression “shall thereupon ipso facto become vacant”? We think a fair construction of this phrase is that “his office shall at that time, by reason of such neglect, become vacant.” Is this section of the statute mandatory or directory merely?
In State v. Matheney, 7 Kan., 327, the statute under consideration provided: “The bond and oath of the county clerk must be filed with the treasurer of the county,” etc. “Every county office shall become vacant upon the refusal or neglect of the officer to deposit his oath and bond of office within the time prescribed by law.” Matheney was elected county clerk, executed his bond, and took the oath of office required by law, and within the time required by law, and entered upon the duties of his office, but neglected to deposit his oath and bond with the county treasurer within the time prescribed by the statute, and the court held that the failure of Matheuey to deposit his bond and •oath of office with the county treasurer of the county within •the time required by law — twenty days after his term of office began — created a vacancy in the office. The court said : “There can be no mistake as to the meaning of these statutes. Whatever may be the rule, independent of the statute, the plain provision of the law is, that not only a refusal, •but a neglect simply, to deposit the official oath and bond within the time prescribed vacates the office. We may not add to nor take from the law. It may seem a matter of •trivial importance whether a bond and oath, executed and *535taken, are filed within twenty or thirty days; but that is a ■matter for the legislature to consider. They have power to establish a rule. Having established it, our plain duty is to enforce it.”
A statute of California provided: “An office becomes vacant on the happening of either of the following events before the expiration of the term: * * His [the officer •elect’s] refusal or neglect to file his official oath or bond within the time prescribed.” (Political Code of California, sec. 996.) Taylor was duly elected sheriff, but neglected to file his official oath or bond within the time prescribed by the statute and the supreme court of that state in People v. Taylor, 57 Cal., 620, held that the neglect to file the bond within the time prescribed created a vacancy in the office.
The charter of the city of Brooklyn, New York, provided that if an alderman of said city should be elected to and •accept any other public office, “ his office as said alderman shall immediately become vacant.” One O’Reilly was an alderman in the city of Brooklyn, and while holding that office was elected to and accepted the office of congressman of the United States, and the court of appeals of New York, in People v. Common Council of the City of Brooklyn, 77 N. Y., 503, held that O’Reilly’s acceptánce of the office of congressman created a vacancy in the office of alderman. The court, in effect, held that the quoted statutes were mandatory.
There are ot]ier cases holding that such a statute as the one we have under consideration is mandatory; but we think, however, that the weight of authority is to the effect that all such statutes are directory.
A statute of New Jersey provided that sheriffs should renew their bonds in November annually; and “That if any sheriff * * * shall neglect, refuse, or be unable to give the bond with sureties as aforesaid * * * at the time or times herein limited, the office of such sheriff *536shall immediately expire and be deemed and taken to be vacant.” (Revision of New Jersey, p. 1099, sec. 10.) The statute further provided:. “All such acts and proceedings done [by a sheriff] under color of office [after having neglected or refused to renew his bond] shall be absolutely void.” The supreme court of New Jersey, in Clark v. Ennis, 45 N. J. Law, 69, coustruing these statutes, said: “It is clear, I think, both upon reason and authority, that a statute declaring an office vacant for some act or omission of the incumbent after he enters upon his duties does not execute itself;” and held, in effect, that the statute Was directory.
•The charter of the city of Chicago provided that all city officers who were required to give bonds for faithful performance of official duties should “file their bonds with the city clerk within fifteen days after their election,” etc. The charier further provided that when bonds should not be filed with the city clerk within fifteen days after the official canvassing of the votes, “the person so in default should be deemed to have refused said office, and the same should be filled by appointment as in other cases;” and in case a bond so filed should not be approved and a satisfactory bond should not be filed within fifteen days after such disapproval, the person so in default should “be deemed to have refused said office, and the same should be filled as above provided;” and further, the charter made it “the duty of the clerk to notify all persons elected to office of their election, and unless such persons should respectively qualify within fifteen days thereafter the office should become vacant.” It was held in City of Chicago v. Cage, 95 Ill., 593, that these provisions, in respect to the time within which official bonds were required to be filed, were not mandatory, but merely directory. The municipal authorities were empowered, in their discretion, to declare a vacancy, or to waive the default as to the mere time of filing the bonds, and to accept and approve it when afterwards *537filed. The mere default in that regard would not, of itself, operate to vacate the office. The court said : “The position is, that the provision requiring a bond to be filed by the treasurer elect within fifteen days after the official canvass has been declared is mandatory, and that a failure to file the bond within the time eo instanti, upon the termination of the time, absolutely vacates the office. It is insisted, on the contrary, that the sections of the charter on this subject taken together were intended merely to empower the mayor and council, in their discretion, to declare a vacancy and appoint a successor, or to waive the default as to the mere time of filing bond, and to accept and approve it when afterwards filed; therefore a failure to file in time does not of itself annul or avoid the right or title to the office, but merely renders it voidable or defeasible. That if the officer files his bond strictly in time, his right and title to the office are indefeasible. If he files it after-wards, and it be accepted and approved, his right and title thereupon become equally indefeasible. This latter seems a reasonable construction, and is one which we are disposed to adopt. Gage derived his title to the office from election. The law does not favor forfeitures, and ‘in enforcing forfeitures courts should never search for that construction of language which must produce a forfeiture, when it will bear another reasonable construction.’”
A statute of Washington provided : “Every office shall become vacant upon the happening of either of the following events: * * * His [the officer elect’s] refusal or neglect to take his oath of office within the time prescribed by law.” The supreme court of that state in State v. Muff, 29 Pac. Rep., 999, construing this statute, held that the failure of the officer to take his oath of office within the time prescribed by law did not work a forfeiture of his right to the office, but simply authorized the proper authorities to declare the office vacant, and fill it by appointment. (See, also, State v. Justices of the County Court, 41 Mo., 44; State v. *538County Court of Texas County, 44 Mo.,. 230; Foot v. Stiles, 57 N. Y., 399.)
A statute of Indiana provided: “County school superintendents, within thirty days from the issuing of the proclamation by the governor announcing the making of a contract for furnishing school books, and every county superintendent hereafter elected before he enters upon his official duties, shall enter into a special bond, and upon the failure of any county school superintendent to give such bond his office shall become immediately vacant.” A county school superintendent elected after the passage of the act gave a general bond and entered upon his duties, but failed to give a special bond within thirty days after his election. In Commissioners of Knox County v. Johnson, 24 N. E. Rep. [Ind.], 148, the supreme court of that state, construing this act, said: “But it-by no means results from the construction we have given the statute that the appellee lost his title to the office to which he was elected and into which he had been legally inducted. It is held by our own and other courts that statutes requiring official bonds to be filed within a designated time are directory and not mandatory. Upon this question the authorities are harmonious.” The court then cited a number of authorities and continued: “This rule is carried very far, for it is held, without substantial diversity of opinion, that unless the statute makes the filing of a bond within a limited time a condition precedent to the right to the office, a failure to file it within the time prescribed will not work a forfeiture of the right to the office nor create a vacancy:”
A statute of Louisiana provided that for the failure or refusal of a bank to pay specie for the period of ninety days its charter should become ipso facto forfeited. In construing this statute the supreme court of that state, in Atchafalaya Bank v. Dawson, 13 La., 497,- said: “It would certainly be difficult to find in our language stronger terms, or to combine them with more force, for the purpose *539of expressing the consequences of an act. * * * It is provided * * * that on the suspension or refusal of payment in specie for more than ninety days, the charter shall he ipso facto forfeited and void. * * * I do not understand the words 'ipso facto’ as having any other import than the corresponding term 'by the effect of the act/ made use of in the Code.”
Respondent’s case falls within the principle of these last cited cases, and controlled by the weight of authority we reach the conclusion that said section 15 is directory, and not mandatory, in so far as its provisions are under consideration here; that the section is not self-executing; that the execution and filing of an official bond by respondent for his second term of office was not a condition precedent to his right to enter upon and to discharge the duties of his office for the second term; that since respondent was already in office as county judge, was re-elected to succeed himself, and since he held under his first election and qualification until his successor should be elected and qualified (Compiled Statutes, sec. 104, ch. 26), he held office under his second election by a defeasible title from the time of his neglect to execute and file his official bond; that is, he held the office by a title capable of being divested at any time by the proper legal authorities; and that the execution and filing of his official bond by respondent, coupled with the neglect and failure of the proper authorities to declare the office vacant or to take any steps to that end prior to the time that respondent did execute and file his bond, saved the forfeiture incurred, and barred and precluded a subsequent judgment that the office was vacant by reason of respondent’s default.