I.

THE OATH OF OFFICE.

$255. Oath not indispensable.-But although the law usually requires the taking of an oath, it is not indispensable. It is, as has been said, but a mere incident to the office and constitutes no part of the office itself.'

$256. What Oath to be taken.-The form of oath to be taken by public officers is usually prescribed by the sovereign power, and it is often accompanied by a declaration that no other shall be exacted as a qualification for office.

Thus the constitution of the United States requires that, before entering upon the execution of his office, the President shall take the following oath or affirmation :

"I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will, to the best of my ability, preserve, protect and defend the constitution of the United States."

It further provides that—

"The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this constitution; but no religious test shall be required as a qualification to any office or public trust under the United States." * So the constitutions of the several States usually provide, as in Michigan, that

"Members of the legislature, and all officers, executive and judicial, except such officers as may by law be exempted, shall, before they enter on the duties of their respective offices, 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 this State, and that I will faithfully discharge the duties of the office of

according to the best of my ability.' And no other oath,

1 State v. Stanley, 66 N. C. 59, Am. Rep. 448.

8

Art. II, sec. 1, p. 8
Art. VI, p. 3.

declaration or test shall be required as a qualification for any office or public trust."1

§ 257. Exemption from taking Oath.-Exemption from the constitutional provisions requiring an oath may be not only express, but may be gathered from the evident intention of the law makers. Thus it is said by SHELDON, J., "Where, by the law, there appears a manifestation of the intention of the legislature that an inferior officer should not be required to take an oath of office, there is, in our opinion, a sufficient exemp tion by law from taking the oath of office within the intent of the constitutional provision.""

§ 258. Form prescribed must be substantially followed.— Where the form of the oath to be administered to a public office is prescribed by law, that form should be substantially observed. Literal adherence to it is not required and a substantial compliance will suffice, but anything less than this will not avail.

This is particularly true where the form prescribed was intended to enforce the recognition and protection by the officer of important constitutional rights of individuals, as in proceedings under the right of eminent domain.

8 259. Requirement of Oath cannot vary Constitutional Rights. It is obviously beyond the power of the legislature in prescribing the oath to be administered to impose upon the officer tests or requirements greater than those which the constitution has declared shall be sufficient.

§ 260. Nor disqualify for Act not a Crime when committed. -Neither is it competent for the State, by its constitution, by the requirement of a given oath, to deprive one of his eligi bility to office because of the previous commission of an act which was not punishable when committed."

511.

Art. XVIII, sec. 1.

School Directors v. People, 79 Ill.

Bassett v. Denn, 17 N. J. L. 432; Tide Water Canal Co. v. Archer, 9 G. & J. (Md.) 479; Hankins v. Calloway, 88 Ill. 155; State v. Trenton, 35 N. J. L. 485.

In re Cambria Street, 75 Penn. 357; Bohlman v. Railway Co. 40 Wis. 157; Bowler. Drain Commissioner, 47 Mich. 154; Chapman v. Clark, 49 Mich. 305.

5 See the elaborate discussion of this question in Cummings v. Missouri, 4 Wall. (U. S.) 277.

§ 261. Oath need not be in Writing unless Law requires it. -Unless the law expressly requires more, it is sufficient that the oath prescribed be taken; it need not also be in writing or be subscribed by the affiant.1

§ 262. Effect of not taking Oath.-Statutes requiring the taking of an oath, like those which require also the giving of a bond, usually require that it shall be done within a specified time. These statutes, however, as will be seen in a following section, are generally construed to be directory merely and not mandatory, and mere delay in taking the oath, if it be afterwards taken with the approval of the public authorities, while it may be ground for a forfeiture while the delay continues, does not amount ipso facto to a rejection of the office, and when the oath is so taken, the default is waived."

Under some constitutional provisions, as those of Virginia, requiring the taking of the "anti-duelling" oath as a condition precedent, the failure to take the oath operates to vacate the office.'

The requirement that the oath shall be taken within a fixed period does not operate while a contest is pending to determine who is legally entitled to the office and hence required to take the oath prescribed by law.*

II.

OFFICIAL BONDS.

$263. In general.-Public officers to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals, are usually required to secure the faithful and proper discharge of their duties by giving bonds conditioned to that

effect.

As a rule, political, judicial, military and naval officers are not required to give bonds.

'Davis . Berger, 54 Mich. 652.

See post, § 265, ante, § 251. 'Branham. Long, 78 Va. 352;

Johnson v. Mann, 77 Va. 265.

People v. Potter, 63 Cal. 127; Pearson v. Wilson, 57 Miss. 648.

§ 264. Are required by Law. The giving of these bonds is generally required by the law creating the office, and the amount of the penalty, the conditions of the undertaking, and the num ber and qualification of the sureties are usually prescribed by the same authority.

8 265.

1. When to be Given.

Statutes usually directory and not Mandatory.—The statutes requiring a bond to be given ordinarily prescribe that it shall be given within a fixed time after the officer's election or appointment. These provisions as to time, however, though often couched in most explicit language, are usually construed to be directory only and not mandatory.'

§ 266. Failure to give within Time prescribed does not work a Forfeiture.-A failure to give the bond within the time prescribed does not, therefore, ipso facto work a forfeiture.' A fortiori is this so, where the failure was through no fault of the officer."

Even though the statute expressly provide that upon a failure to give the bond within the time prescribed, the office shall be deemed vacant and may be filled by appointment, it is generally held that the default is a ground for forfeiture only and not a forfeiture ipso facto, and that if, notwithstanding his default, the State or other power sees fit to excuse the delinquency by granting the officer his commission, the defects of his title are cured,

City of Chicago . Gage, 95 Ill. 593, 35 Am. Rep. 182; People v. Holley, 12 Wend. (N. Y.) 481; State v. Churchill, 41 Mo. 41; State v. Porter, 7 Ind. 204; State v. Falconer, 44 Ala. 696; Sprowl v. Lawrence, 33 Ala 674; State v. Ely, 43 Ala. 568; State v. County Court, 44 Mo. 230.

2 City of Chicago v. Gage, 95 Ill. 593, 35 Am. Rep. 182; People v. Holley, 12 Wend. (N. Y.) 481; State v. Churchill, 41 Mo. 41; State v. County Court, 44 Mo. 230; State v. Porter, 7 Ind. 204; State v. Falconer, 44 Ala. 696; Sprowl . Lawrence, 33 Ala.

674; State v. Colvig, 15 Oreg. 57; State v. Peck; 30 La. Ann. I. 280; Kearney v. Andrews, 10 N. J. Eq. 70.

Contra, People v. Taylor, 57 Cal. 620; In re Attorney-General, 14 Fla. 277.

Ross . Williamson, 44 Ga. 501; State v. Hadley, 27 Ind. 496.

Where the giving of the bond is prevented by the unlawful acts of the officers appointed to receive it, the officer elect is relieved from the necessity of giving it. Culver v. Armstrong, Mich. - 43 N. W. Rep. 776.

and it is converted into a title de jure, having relation back to the time of his election or appointment.'

Where, however, the giving of the bond within the time prescribed is expressly made a condition precedent to the right to the office, the rule would be different.

The provisions of the law requiring the giving of a bond within a fixed period do not apply while a contest is pending to determine who is legally elected and hence required to give a bond.'

2. Form of Bonds.

§ 267. Terms prescribed by Statute. The statutes requiring the giving of bonds usually prescribe, with more or less particu. larity, what shall be their terms and conditions. The object of this is not only to secure uniformity in the conditions, but more especially to provide that the public and those dealing with the officer shall receive all of the protection from the bond that it was the intention of the statute, exacting it, to secure.

§ 268. Statutes are usually directory.—And inasmuch as the substance is ordinarily more to be regarded than the form, it is quite generally held that, unless the statute expressly declares that a bond not executed in the form prescribed shall be void, the statute will be construed to be directory only and a substantial compliance with it will suffice.'

Immaterial variations or omissions, therefore, in the bond will not render it void but will be overlooked, while matters in excess of the requirements-redundancies-will be rejected as mere surplusage and the bond will be held valid as though they had not been inserted."

Stephens v. Crawford, 1 Ga. 574, 44 Am. Dec. 680; Whitehurst v. Hickey, 3 Mart. (N. S.) La. 589, 15 Am. Dec. 167; Justices v. Wynn, Dud. (Ga.) 22; Boring v. Williams, 17 Ala. 510; People v. Slocum, 1 Idaho, 62; Quimby v. Adams, 11 Me. 832; Boykin v. State, 50 Miss. 375; Probate Court v. Strong, 27 Vt. 202; Place v. Taylor, 22 Ohio St. 317.

$ Polk v. Plummer, 2 Humph. (Tenn.) 500, 37 Am. Dec. 566: McCaraher v. Commonwealth, 5 Watts.