dissenting.
I find myself unable to agree to the conclusion of the *830majority. James Duffy was duly elected county judge of Webster county for the term expiring in January, 1900. He qualified and discharged the duties of-his office. At the general election held in November, 1899, Isaac W. Edson was elected to said office to succeed said Duffy. Within the time required by law, Edson presented for approval his official bond with the oath of office thereon indorsed as prescribed by section 1, chapter 10, Compiled Statutes. The bond was not approved or acted upon prior to the date fixed by law for the beginning of the official term, owing to the fact that the county board was not in session until after that time. The bond of Edson was approved on January 9, 1900. On the same day the county board entered on its records a resolution reciting that the right of Edson to hold the office having been questioned because his bond had been approved out of time, they thereby appointed Edson to the office of county judge. Edson immediately executed and filed a new bond reciting the resolution of appointment, upon which was indorsed the same oath of office. This bond was likewise approved on the same day. Thirteen days thereafter, Edson took, subscribed, and filed in the office of the county clerk, the official oath required by section 1, article 14, of the constitution. On January 6, 1900, Duffy executed and filed a hold-over bond, having indorsed thereon the official Oath similar to the one first taken by Edson. This hold-over bond, in obedience to a peremptory writ of mandamus, was approved by the county board. Later, Duffy subscribed the constitutional oath of office, and filed the same with the county clerk of Webster county. Duffy having refused to surrender the office to Ed son, the latter instituted quo warranto proceedings against the former to oust him from the office of county judge and install relator therein. From a judgment in the district court in favor of Edson the respondent has prosecuted a petition in error.
Numerous questions have been argued in the briefs and at the bar by counsel for the respective parties, and *831passed upon by my associates, but the only one which I deem necessary to consider at this time is whether the failure or refusal of relator to take and subscribe the oath designated by the constitution within the time required by law forfeited his right to the office.
Chapter 10, Compiled Statutes, relates to official bonds and oaths, section 1 of which declares that “All state, district, county, precinct, township, municipal, and especially appointed officers, except those mentioned in section 1, article 14, of the constitution, shall before entering upon their respective duties, take and subscribe the following oath, which shall be endorsed upon their respective bonds: ‘I do solemnly swear that I will support the constitution of the United States, the constitution of the state of Nebraska, and faithfully and impartially perform the duties of the office of-, according to law, and to the best of my ability. So help me Cod.’ ” It was the foregoing oath, and none other, that was taken by relator -before the date fixed by law for the commencement of his term of office. The taking of this oath would suffice were it not for the exception contained in said section 1, chapter 10, and the requirements of the constitution. Section 1, article 14, of the fundamental law reads thus: “Executive and judicial officers and members of the legislature, before they enter upon their official duties, shall take and subscribe the following oath or affirmation, ‘I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the state of Nebraska, and will faithfully discharge the duties of- according to the best of my ability, and that at the election at which I was chosen to fill said office, I have not improperly influenced in any way the vote of any elector, and have not accepted, nor will I accept or receive, directly or indirectly, any money or other valuable thing from any corporation, company, or person, or any promise of office, for any official act or influence. * * *’ Any such officer or member of the legislature who shall refuse to take the oath herein prescribed, shall forfeit his office. * *
*832It is obvious that this section is applicable to the office in question, and on this point we are all agreed. The constitutional provision is mandatory, and of this there is no room to doubt. The taking of the constitutional oath by a county judge elect is a condition precedent to his entering upon the duties of such office. And the statute prescribes the time within which the oath shall be filed in the proper office, as section 5, chapter 10, declares that “Official bonds, with the oath endorsed thereon, shall be filed in the proper office within the times as follows: Of all officers elected at any general election on or before the first Thursday after the first Tuesday in January next, succeeding the election,” etc. By this section it became the imperative duty of relator to have talcen the constitutional oath and lodged the same in the office of the county clerk of Webster county on or before the first Thursday after the first Tuesday in January, 1900. He wholly failed or refused to do either. The omission of the relator to subscribe to the constitutional oath and file the same in proper time is not a mere irregularity, but was a clear .and palpable violation of the fundamental law, which is no more an irregularity than the failure of the legislature to observe the requirements of the constitution in passing laws; and this court has frequently held that statutes enacted in violation of the plain requirements of the constitution are void. By a parity of reasoning, the neglect or refusal of a county judge elect to take and file the oath prescribed by the fundamental law within the time limited therefor forfeits his right to be inducted into office. If he could rightfully subscribe to the oath and file the same one day after the period fixed by statute, then he might do so in a month or year. This is not a suit on an official bond where the constitutional oath was not taken in time and the omission so to do is urged as a defense, but is' a proceeding to determine the rights of two persons to hold a public office, and the relator, like a plaintiff in ejectment, must recover on the strength of his own title and can not rely upon the weak*833ness of that of his adversary. The neglect or failure of Edson to take the constitutional oath within the statutory time amounted to a refusal so to do. In the opinion of the majority it is said that the failure of Edson to subscribe the oath prescribed by the constitution was evidently a mistake — an oversight. There is no warrant for this assertion to be found in the record. Edson in his pleadings does not allege that he inadvertently or by mistake took the wrong oath, nor did he attempt to excuse his neglect by testimony given on the trial. He offered no extenuating evidence whatever. His conduct amounted to a refusal to take the required oath. Even though he took the statutory oath under a misconception of the law, it is no valid excuse. He was bound to know the law.
Again, relator abandoned any claim he might have to the office under and by virtue of his election, by the county board declaring that a vacancy existed and appointing relator to fill the same and by his giving a new bond and attempting to qualify. If there existed a vacancy in the office of county judge, the county board was without power to fill the same, since the unexpired term exceeded one year, and could be filled alone by election. Constitution art. 6, sec. 21; State v. Lansing, 46 Nebr., 514. The conclusion is irresistible that relator has failed to establish his right to be inducted into the office in question.