Believing that the majority opinion is supported neither by the law, nor by a fair interpretation to be put on the facts alleged in the answer, on a demurrer to which this case went off, I am impelled to dissent.
First, with regard to the law. Section 103 of the Constitution provides:
"The judges of county courts, clerks, sheriffs, surveyors, coroners, jailers, constables, and such other officers as the general assembly may from time to time require, shall, before they enter upon the duties of their respective offices, and as often thereafter as may be deemed proper, give such bond and security as may be prescribed by law."
Sections 3753 and 3,755 of the statutes read:
*Page 191Section 3753: "No officer from whom a covenant is required shall enter upon the duties of his office until the same is given. A breach of this provision, or a failure to take the oath of office prescribed by law, shall be a misdemeanor, punishable by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00), and, on conviction thereof, such officer shall be removed from office by the judgment of the court where such conviction is had."
Section 3755: "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-eligible thereto for two years."
These constitutional and statutory provisions, which have been a part of our law for many years prior to the adoption of our present Constitution, seem to me to be perfectly clear and to mean exactly what they say. The Constitution provides that clerks shall before they enter upon the duties of their respective offices give the bond prescribed by law. Section 3753 of the statutes provides that no officer from whom a bond is required (and a clerk is such an officer) shall enter upon the duties of his office until the same is given. These constitutional and statutory provisions were enacted for a very wise purpose. Officers who are required to give bond are in the main those who handle the moneys of the commonwealth. The Constitution and the statutes very prudently provide that no one shall undertake to handle the money of the commonwealth until he shall have given bond to faithfully account for them. The framers of our Constitution and our Legislature never intended that an officer should handle any moneys of the state until the commonwealth was safely secured, and that if he did attempt to do so his office might by the proper authorities be declared vacant. The Constitution and statutes work no hardship because they allow ample time between the election or appointment of an officer and the date of his qualification within which he may execute the bond mentioned. The language of the Constitution and statutes is not complicated, but remarkably clear. There is no excuse in the world for an officer qualified to perform the duties of his office not understanding and appreciating the clear language of the statutes. The authorities construing this statute are in accord will my view of it. Lowe v. Phelps, 14 Bush 642; Barnett v. Hart, County Judge, 112 Ky. 728, 66 S.W. 726, 23 Ky. L. R. 2116. I am of opinion, then, that the requirements of the statutes and Constitution above cited are mandatory. This being true, it follows that no officer has any authority to waive them. This proposition ought hardly to call for a discussion; but, *Page 192 since the majority opinion seems to me to rest in part on a sort of waiver, it may not perhaps be amiss to call attention to the many opinions of this court adhering to the sound rule that no public officer has power to waive the mandatory provisions of our Constitution or of any statute. Some of these authorities are City of Winchester v. Board of Education of the City of Winchester, 182 Ky. 313, 206 S.W. 492; Gay v. Jackson County Board of Education, 1205 Ky. 277, 265 S.W. 772; Robinson v. Town of Paintsville, 199 Ky. 247, 250 S.W. 972; Bates v. City of Monticello, 173 Ky. 244, 190 S.W. 1074, and Burnside Land Co. v. Connelly Lee, 218 Ky. 346,291 S.W. 409. This last case is particularly instructive on this point and very apropos to the instant case. Analogous to this principle is that of those cases under which the state or municipality is not precluded from recovering on official bonds because of some neglect of its officers in taking the bond or in complying with its provisions governing a recovery on a default, Bankers' Surety Co. v. City of Newport, 162 Ky. 473,172 S.W. 940; Fidelity Deposit Co. of Md. v. Commonwealth,104 Ky. 579, 47 S.W. 579, 49 S.W. 467; Wade v. City of Mt. Sterling, 33 S.W. 1113, 18 Ky. L. R. 377. (In this case, the city was allowed to recover against the surety even though those taking the bond were guilty of fraud in failing to disclose to the surety at the time he signed the bond the fact that his principal had not made his settlement nor been given a quietus for previous collections made by him.) See, also, 10 Rawle C. L. 705.
I concede that, under the ease of Dorian v. City of Paducah,136 Ky. 373, 124 S.W. 369, if the officer who is required to give bond tenders a good and sufficient one, and the officer or body which is required to take and approve it for no good reason fails or refuses to do so, then the officer who has tendered the good and sufficient bond is entitled to his office, since he has done all that he could or is required to do. As I understand it, the majority opinion is also rested in part on this proposition which I concede. But it is certainly true in my judgment that no tender can be worked out of the facts, pleaded in appellee's answer, and this brings us to the facts in this case. So far as pertinent, the answer with regard to the execution of the bond in question says:
"She (the appellee) says that several days before January 4, 1926, she had arranged with E.B. *Page 193 Samuels, the acting agent far the United States Fidelity Guaranty Company in Hickman county, Ky., for said company to make her official bond and that the said Samuels agreed to make said bond and advised her that inasmuch as her first bond was made on January 7, 1922, that said bond would run for 4 years, and it was not necessary to make her bond until the 7th day of January 1926, and he agreed to and did afterwards prepare said bond and have it ready in due form of law for it to be filed and accepted by the county court of Hickman county on the forenoon of the 7th day of January, 1926.
"She says that under the direction of the said W.H. Van Hook, county court judge, on the 4th day of January, 1926, she was duly qualified by his administering the oath of office to her; that at said time she advised the said Van Hook, county judge, that she had been informed by the said Samuels, whom, as agent, had agreed to make her bond on the 7th day of January, 1926, and that he, Van Hook, after administering the oath of office to her on the 4th day of January, 1926, directed the defendant to make a minute on the minute book of his administering the oath of office to her, and he also advised her that the bond was satisfactory and that he would accept it, and for her to have the bond executed and presented as soon as she could conveniently enter the order on the order book. . . . She says that although on the 4th day of January he told her to have the bond executed and that he would accept it on the 7th day of January, but notwithstanding his direction and agreement made on the 4th day of January, he arbitrarily, corruptly and illegally refused to accept her bond or to sign the order which be himself had directed to be entered on the order book. . . .
"She further says that she could and would have executed the bond on the 4th day of January, 1926, but for the directions of the county court judge to have the order entered and the bond executed by the 7th day of January, 1926, and his agreement to sign the order and accept the bond on said date, and that she relied upon his agreement to do so."
It seems to me to be impossible to put any interpretation on these facts other than that the appellee, instead of seeking legal advice, took that of an insurance agent *Page 194 who told her that it was not necessary for her to execute the bond on the day that the law requires. She made no effort to present or tender any bond on that day, but simply told the county judge what the insurance agent had advised her, and the county judge told her that this was all right. The appellee's answer expressly says she made no tender and presents, an excuse why she failed to do so. The excuse is unavailing. The county judge had no authority to waive the statute or Constitution as we have seen. If be could waive their requirements for three days, he could waive them for any length of time and thus defeat the constitutional and statutory provisions entirely. The state is even not precluded if the county judge acted fraudulently in his statement. See the Wade case supra. The truth about the whole matter is that appellee, with the Constitution and statute plainly before her, utterly failed to comply with their mandatory requirements, and now seeks to excuse that failure, not because of any refusal of the county judge to accept the tender of a good and sufficient bond offered by her within the time provided by law, but because, forsooth, she says she was misled by his conduct, and so failed to tender the bond. Not only have I failed to find any authority sustaining her position in this regard, but I have found abundant authority, part of which I have cited, to utterly refute the soundness of her contention. I admit the appellee's case is a hard one, but, despite the adage, we ought not to permit hard cases to make bad law. Appellee was an experienced county clerk. She had qualified once before as such. She presumably knew the law. At least she is charged with such knowledge. Her failure to qualify properly on this occasion is her own fault, and though a hardship, she ought to abide the consequence. Therefore I am of the opinion that the judgment of the lower court should be reversed, with instructions to sustain the demurrer to the appellee's answer.
I am authorized to say that Chief Justice. Clay and Judge McCandless concur in this dissent and these views. *Page 195