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be given shortly thereafter, and in less than 30 days another bond, signed by Ramsay, instead of Ford, and which is the bond here sued upon, was presented to the commissioners and by them approved and sent to Springfield. Upon cross-examination, Ford testified that Baker told him that, shortly after he gave the new bond, this old bond had been destroyed. Whether it was destroyed or not is not clearly established; but it would make no difference, so far as the liability of the estate of Ramsay in this suit is concerned. The second bond, executed by Ramsay and accepted and approved by the commissioners, was a good and valid bond as against Ramsay, irrespective of the question as to what became of the temporary bond executed in the first place. Whether Ford did or did not give notice, under section 10 of the statute in regard to official bonds (2 Starr & C. Ann. St. [2d Ed.] p. 2833), the fact is that a new bond was given, and, under section 11 of the last-named act, the sureties upon the new bond were liable for all the official delinquencies of Baker as warden, whether of omission or commission, which occurred after the approval of such new bond. The proof shows that the first transaction which Baker, as warden, had with Seiter's bank, occurred on July 15, 1893, several months after the giving of the bond signed by Ramsay. The official delinquency with which Baker is charged in the present suit was the failure to pay over the sum of $11,750, which he deposited in the bank of Seiter & Co.; and, as this deposit was made long after February 15, 1893, when the bond here sued upon was executed, Ramsay and his estate became liable on such bond.

It is said that the commissioners of the penitentiary, who appointed Baker to the office of warden, were guilty of negligence, not only in permitting him to have money in his possession, which it was unnecessary to expend in carrying on and maintaining the penitentiary, but also in allowing him to deposit his money in the banking house of Seiter & Co. No error was committed in refusing the proposition of law which embodied this idea, because "an officer who has received money for and on account of his principal cannot, in general, when called upon to pay it over, defend upon the ground that it was money which his principal had no right to obtain, procure, or receive; and it is held that his sureties are equally estopped." Mechem, Pub. Off. § 295; Lovingston v. Board, 99 Ill. 564. It is also well settled that the sureties, in an action on an official bond, cannot be heard to say that some other officer has been negligent, or failed to perform some duty, and thus escape liability. Stern v. People, 102 Ill. 540; Campbell v. People, 154 Ill. 595, 39 N. E. 578; Spindler v. People, 154 Ill. 637, 39 N. E. 580. In Stern v. People, supra, we said (page 550): "Statutory directions to public officers are given for the security and convenience of the government, and to regulate

the conduct of its officers; but, being directory, they form no part of the contract with the surety, and hence sureties on bonds cannot plead the negligence or failure of public officers to require their principal to render an account, or to remove him for neglect, as required of such officers by law, as a defense to their liability upon a subsequent breach of his bond."

A proposition of law asked by the appellant was also refused, holding that by reason of delay in obtaining satisfaction of the debt sued for the estate of Ramsay has been released from liability. All that need be said in reply to this contention is that, as a general principle, laches is not imputable to the government. This maxim is said by Judge Story to be founded upon "a great public policy." "The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities." Mechem, Pub. Off. § 308; U. S. v. Kirkpatrick, 9 Wheat. 720, 6 L. Ed. 199. The claim here sued upon is sued in the name of the people of the state of Illinois, for the use of the commissioners of the Southern Illinois Penitentiary, and the money sought to be recovered belongs to the government of Illinois. The judgment of the appellate court is affirmed.

Judgment affirmed.

(197 I11. 594)

RAMSAY'S ESTATE v. PEOPLE, for Use of TRUSTEES OF ILLINOIS ASYLUM FOR INSANE CRIMINALS. (Supreme Court of Illinois. June 19, 1902.) OFFICERS-BONDS-RIGHT TO REQUIRE-PROOF OF EXECUTION.

1. Under Hurd's Rev. St. 1889, p. 233, § 13, providing that the trustees of each state charitreasurer table institution shall appoint a therefor, and section 14, requiring such treasurer to give bond to the people, and page 241, § 1, providing that the asylum for insane criminals shall be subject to the control of the board of commissioners of the penitentiary at Chester under the same rules and conditions as trustees of the state charitable institutions, the treasurer of such asylum was required to give bond, and his sureties were liable for money lost by the failure of the bank in which it was deposited.

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2. Under Hurd's Rev. St. 1899, p. 1194, § 1, requiring official bonds to be acknowledged bebefore some officer authorized to take knowledgments under seal, and that such acknowledgments shall be prima facie evidence that the instrument was signed, sealed, and acknowledged, and Id. p. 406, § 20, providing for the taking of acknowledgments of deeds without the state before notaries public, and that when so taken they shall be certified by such officer under his official seal, a certificate of a notary of another state under his official seal of the acknowledgment before him of an official bond is prima facie evidence of the execution of such bond.

Appeal from appellate court, Fourth district.

Action by the people of the state of Illinois, for the use of the trustees of the Illinois Asylum for Insane Criminals, against the estate of Rufus N. Ramsay, deceased. From a judgment of the appellate court (97 Ill. App. 296) affirming a judgment of the circuit court in favor of plaintiff, defendant appeals. Affirmed.

M. P. Murray and John G. Irwin, for appellant. Van Hoorebeke & Louden, for appellee.

CARTER, J. This is an appeal from a judgment of the appellate court affirming a judgment of the circuit court of Clinton county against the estate of Rufus N. Ramsay, deceased, on a claim filed in the Clinton county court by the people, for the use of the trustees of the Illinois Asylum for Insane Criminals. The claim was for a balance of moneys of the state received by James D. Baker, as treasurer of the institution, which he failed to turn over to his successor, and recovery of such balance was sought on his official bond against the estate of Ramsay, Ramsay having been one of his sureties. The case was tried with another against the estate of Ramsay to recover on Baker's official bond given as warden of the Southern Illinois Penitentiary, upon which bond Ramsay had also been surety, and it was stipulated that the same evidence given in that case should be treated as given in this, so far as it might be applicable. Judg. ments were rendered against Ramsay's estate in the two cases, and these judgments were affirmed by the appellate court. Both cases have been brought to this court on appeal.

The contentions of the appellant in the two cases, in the main, are the same, and for a discussion of the reasons of our decision as to questions common to both reference may be made to the opinion in that case. Ramsay's Estate v. People. 64 N. E. 549. True, it is contended in this case that there was no statute authorizing the trustees of the asylum to appoint a treasurer and for that reason the sureties were not liable as sureties on an official bond required by law to be given, but only in case the money was lost by the negligence or bad faith of the obligor, as in a case of bailment. In this, counsel are in error. Section 1 of the act of 1889, establishing the asylum, provides that the said asylum shall be subject to the supervision and control of the board of commissioners of the penitentiary at Chester, under the same rules, regulations, and conditions, as trustees of the state charitable institutions, as now provided by law, as far as the same are applicable. Hurd's Rev. St. 1889, p. 241. And section 13 of the act of April 15, 1875 (Hurd's Rev. St. p. 233), regulating the state charitable

institutions, provides that the trustees of each of such institutions shall appoint some person, not a member of the board, to be treasurer of the institution; and section 14, that such treasurer shall give bond to the people, with not less than two sureties, to be approved, etc., conditioned for the faithful performance of the duties of the office. Section 16 provides that the treasurer shall receive and be the custodian of all moneys due or belonging to the institution, whether derived from the state treasury or from other sources, and provision is made for disbursements and other specific duties of the treasurer. Baker had been appointed treasurer of the asylum by the commissioners of the penitentiary, as trustees of the asylum, and had entered into bond as the statute provides, and we have no doubt that these statutory provisions are, in the respect mentioned, applicable to this asylum; hence this case does not differ materially from the other, where Baker's bond as warden was involved. As in that case, the money was lost by the failure of the bank in which it was deposited.

It is next contended that the trial court erred in admitting in evidence said official bond without proof of its execution. The only direct proof of its execution was the certificate of the notary public, which was in the form provided by section 1 of the act to revise the law in relation to official bonds. Hurd's Rev. St. 1899, p. 1194. The objection was that the purported acknowledgment was taken before a notary public of St. Louis, in the state of Missouri, and that the certificate contains no statement that such notary was authorized to take acknowledgment of official bonds. The statute above referred to requires such bonds to be acknowledged before some officer authorized by law to take acknowledgments of instruments under seal, and provides that such acknowledgments shall be taken as prima facie evidence that the instrument was signed, sealed, and acknowledged in the manner therein set forth, and shall have the same force and effect, as evidence, in all legal proceedings, as that given to the acknowledgments of deeds of conveyance of real es tate. Section 20 of the act concerning conveyances (Hurd's Rev. St. p. 406) provides for the taking of acknowledgments of deeds without this state before notaries public, and that when so taken they shall be certified by such officer under his official seal, and we cannot find that any further certificate to the effect that such notary is authorized by the laws of his own state to take ac knowledgments of deeds is required by our statute. The certificate here in question was properly made under the seal of the notary, as the statute requires, and, as our statute requires nothing more where the acknowl edgment is taken by a notary, it can make no difference whether he was authorized to take such an acknowledgment by the laws

of Missouri or not. For the purposes of evidence in this state, notaries public are authorized to take acknowledgments of instruments under seal,-e. g., deeds,-and when certified under their official seals they are evidence of execution. Said section 1 of the act relating to official bonds does not require that the officer taking the acknowledgment, when taken without this state, shall be authorized, by the laws of the state where it is taken, to take such acknowledgment. It is the law of this state, and not of the state where it is taken, that governs in such a case. It is, of course, true that certificates of authority would be necessary as to official bonds where required as to deeds, but not otherwise. We do not regard the cases cited by appellant as in point, as, for instance, Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312, 58 N. E. 994. The cases cited referred to affidavits sworn to before foreign notaries, and not to acknowledgments. In the Desnoyers Case we held, after quoting section 6 of chapter 101 of the Revised Statutes, that the certificate of the administration of the oath by the notary was not sufficient, because it did not appear that the notary was authorized by the laws of his state to administer oaths. It is sufficient to say that such proof of authority is not required to make notaries' certificates of acknowledgments of deeds admissible in evidence under either the conveyance act or the act relating to official bonds. In Dawson v. Hayden, 67 Ill. 52, it was said: "No matter whether the acknowledgment was in conformity with the laws of Missouri or not; it was before a notary public, under his notarial seal, in conformity with our own law, which was sufficient, the premises being situate in this state." We are of the opinion that under the statute the same rule is applicable to acknowledgments of official bonds. Some other questions of a technical character have been raised, which we have considered, but they are not of sufficient inportance to require mention.

The judgment of the appellate court is correct and must be affirmed. Judgment affirmed.

. (197 Ill. 98)

RADLOFF v. HAASE.

(Supreme Court of Illinois. June 5, 1902.) APPEAL-REHEARING-TIME OF FILING PETITION-DELIVERY ΤΟ EXPRESS COMPANYPOWER OF SUPREME-COURT CLERK-FILING PAPERS-NUNC PRO TUNC ENTRY.

1. The supreme court rule requiring a petition for rehearing to be filed within 25 days of the filing of the opinion is not satisfied by delivering the petition to an express company within such time, to be transmitted to the clerk of the supreme court, but it must be delivered to the -clerk within such time.

2. The clerk of the supreme court has no -authority to make a nunc pro tunc entry of the

filing of a petition for a rehearing, but it must be filed on the date on which it is received by him.

Motion to compel the clerk of the supreme court to file a petition for rehearing. Motion denied.

For former opinion, see 63 N. E. 729.

BOGGS, J. This is a motion, entered in behalf of the appellee, for a rule on the clerk requiring him to file a petition for a rehearing of the cause as of the 12th day of May, 1902.

An opinion was filed herein on the 16th day of April, 1902. The rules of this court permitted the appellee to file a petition for a rehearing within 25 days after the filing of the opinion. The last day of the 25 days so allowed was Sunday, May 11, 1902. The office of the clerk is not open for the transaction of business on the Sabbath day, and for that reason we have construed the rule to permit the filing of petition for rehearing, in such instance, on the succeeding day, which in this case would have been Monday, May 12th. The petition here asked to be filed was not, however, filed, or tendered to be filed, on Monday, the 12th. The motion for a rule on the clerk to file the same as of the 12th day of May is supported by an affidavit, from which it appears that on Monday, the 12th day of May, counsel for the appellee delivered the petition, together with the number of copies thereof as required by the rules, to the American Express Company, in the city of Chicago, to be transmitted by express to the clerk of this court in Springfield.

Counsel insist it is a well-recognized usage and practice in the courts of the state to regard petitions for rehearing, transcripts, and other like documents, as being constructively in the hands of the clerk from and after the time such documents have been delivered to an express company for transmission to the clerk, or have been deposited in the post office to be conveyed by mail to the clerk, and that, in that view, the clerk should file the petition herein as of the 12th day of May, the day on which it was delivered to the express company in Chicago. There is no rule of this court which authorizes the clerk to file papers as of any other date than that on which they are actually received by him. It is not a ministerial, but a judicial, function to determine that papers shall be filed nunc pro tunc as of a date other than that of their actual reception by the clerk. The official reporter of the court at once, after the expiration of the 25 days allowed for the filing of petitions for rehearing, publishes in the "Official Reporter" all opinions in which petitions for rehearings have not been filed. In this case, the opinion of the court was so published by the official court reporter as the final action of the court in the case.

The motion is denied.

166 Ohio St. 612)

STATE ex rel. TRAUGER ▼. NASH, Gover

nor.

(Supreme Court of Ohio.

June 26, 1902.) MANDAMUS TO GOVERNOR-LIEUTENANT GOVERNOR-VACANCY IN OFFICE-FILLING BY APPOINTMENT.

1. The attorney general not having become such, a private citizen may be the relator in a mandamus proceeding to enforce the performance of a public duty affecting himself as a citizen and the citizens of the state at large.

2. In such case a writ of mandamus may issue against the governor, commanding him to perform a purely ministerial act, but not to control his discretion in the performance thereof. State v. Chase, 5 Ohio St. 528, approved and followed.

3. The duty and power of making appointment to fill a vacancy in the office of lieutenant governor is not specially conferred on the executive branch of the government by the constitution, and rests wherever the legislature may vest it. Article 2, § 27. Such duty being imposed on the governor by statute, it is not an -executive function but is a ministerial duty.

4. There is no provision in the constitution for filling a vacancy in the office of lieutenant governor, except as authorized under section 27, art. 2; and when such vacancy occurs it must in all cases be filled by appointment by the governor as provided in Rev. St. § 81.

5. The term of office of such appointee shall be for the unexpired portion of the term, and until his successor is elected and qualified as provided in Rev. St. § 11; and "the first proper election" is the first election at which a lieutenant governor would have been chosen had no such vacancy occurred.

(Syllabus by the Court.)

Application by the state, on the relation of John L. Trauger, for writ of mandamus to George K. Nash, governor. Writ awarded.

This action is on a petition in mandamus filed by leave of the court. The petition is as follows: "The relator says that he is an elector, citizen, and taxpayer of, and the owner in fee simple of real estate in, the city of Columbus, state of Ohio; that the defendant, George K. Nash, is the duly elected, qualified, and acting governor of the state of Ohio. The relator further says that Carl L. Nippert was on November 5, 1901, duly elected to the office of lieutenant governor of the said state of Ohio; that on January 13, 1902, he duly qualified as such lieutenant governor, and entered upon the discharge of the duties of said office, and continued in the said office and in the discharge of said duties until May 2, 1902, when he duly resigned from said office; that by reason of said resignation a vacancy arose in said office of lieutenant governor, which vacancy still continues to exist; that it is the duty of the said defendant, George K. Nash, as such governor, enjoined upon him by force of sections 11 and 81 of the Revised statutes of Ohio, to appoint an elector of the state of Ohio to fill said vacancy in the office of lieutenant governor, to hold the same until his successor is elected and qualified. The said defendant, George K. Nash, governor as aforesaid, entertaining doubts with respect to his duty in the premises, neglects, declines, 12 See Mandamus, vol. 33, Cent. Dig. 129.

and refuses to, and declares that he will not, fill said vacancy by appointing an elector to said office. The relator says that by the ordinary course of the law he has no adequate remedy against the said defendant for so refusing. Wherefore the relator prays that the defendant, George K. Nash, governor of the state of Ohio, may be compelled to appoint an elector of the state of Ohio to the office of lieutenant governor, to hold the same until his successor is elected and qualified, by mandamus from this court; that an alternative writ of mandamus may first issue, requiring the defendant to show cause, by a day to be named therein, why he does not appoint the same; and that on final hearing a peremptory writ of mandamus may be awarded to compel the defendant to appoint an elector to said office of lieutenant governor; and for such other and further relief as the nature of the case may require."

The issuing and service of an alternative writ of mandamus was waived and appearance entered by the defendant, who filed a demurrer to the petition for the reason that the same does not state facts sufficient to warrant the relief prayed for.

George B. Okey and Otway J. Cosgrave, for relator. J. M. Sheets, Atty. Gen., and J. E. Todd, Asst. Atty. Gen., for defendant. W. H. West, as amicus curiæ, filed a brief.

DAVIS, J. (after stating the facts). It is to be regretted that the defendant did not see fit to answer, as has been sometimes done in like cases before, submitting the question of law to the court, and expressing a willSuch a ingness to abide by its decision.

course would have relieved us from some embarrassing considerations; but the case is before us on demurrer to the petition, and, in addition to the main question, it is urged by the attorney general, who appears as counsel for the defendant: First, that the relator has no such beneficial interest in the act which he seeks to have performed as entitles him to apply for a writ of mandamus; and, second, that the court has no power to require the performance of an official act by the governor of the state.

Concerning the first proposition of the attorney general, it may be conceded that a majority of the courts which have pronounced opinions on the subject have held that a private relator applying for a mandamus must show a special interest in himself; but even in some of those jurisdictions it has been said that "the rule which rejects the intervention of private complainants against public grievances is one of discretion, and not of law." People v. Board of State Auditors, 42 Mich. 422, 429, 4 N. W. 274. And in the same case (pages 429-430) the court made the following observations, which are very pertinent here: "In the present case the officer whose duty it usually is to enforce the rights of the state in this court has, in the performance of his

*

official functions as adviser of the state officers, placed himself in an adverse position, and appears for the respondents on this application. Inasmuch, then, as the attorney general refuses to appear and seek the enforcement of the statutory provisions, does his refusal preclude its enforcement? And if not, is the relator authorized to bring the matter before this court? There may, perhaps, be others who have interests that would justify their appearance, but there is no one else whose duty it is to appear when the attorney general declines to do so. * * There are serious objections against allowing mere interlopers to meddle with the affairs of the state, and it is not usually allowed unless under circumstances when the public injury by its refusal will be serious. * But we find no reason to consider the matter as one lying outside of judicial discretion, which is always involved in mandamus cases, concerning the relief, as well as other questions." In Railroad Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428, the court say: "There is, we think, a decided preponderance of American authority in favor of the doctrine that private persons may move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law officer." The same ruling was made in Railroad Co. v. Suffern, 129 Ill. 274, 21 N. E. 824, and in State v. Weld, 39 Minn. 426, 40 N. W. 561. See High, Extr. Rem. (3d Ed.) § 431. The right of a citizen to enforce a public right without the intervention of the attorney general has been established in this state in two cases, viz., State v. Brown, 38 Ohio St. 344; State v. Tanzey, 49 Ohio St. 656, 32 N. E. 750.

We now come to the attorney general's second contention; that is, that "this court has no power to require the performance of an official act by the governor of the state." If reference is here made to the physical power to enforce obedience to the writ, we will say that we are not concerned with that suggestion. We will assume that the governor is just as ready to respect the law and the mandates of the courts as any other officer who has taken an oath to support the constitution and to faithfully perform the duties of his office. If this expression is intended as a denial of our jurisdiction, or of our duty to issue a writ of mandamus against the governor in a proper case, we pause long enough to state our reasons for holding to the contrary view: First, the judges of this court, after argument by eminent counsel on both sides, were unanimous in the conclusion that, in regard to a ministerial act which might have been devolved on any other officer of the state, the governor might be made amenable to the compulsory process of this court by mandamus. State v. Chase, 5 Ohio St. 528. And on consideration now we see no sufficient reason for overruling that decision. While there is irreconcilable conflict in the opinions on this sub

ject, we think that the better reasoning is found in those cases which reach the conclusion that a writ of mandamus may be directed to the governor, or any other officer, to compel the performance of clear legal and mandatory duties. See cases collected in 6 Am. & Eng. Enc. Law (2d Ed.) 1013. See also, dissenting opinions in State v. Board of Canvassers, 17 Fla. 9; People v. Morton, 156 N. Y. 136, 50 N. E. 791, 41 L. R. A. 231, 66 Am. St. Rep. 547. The legislative, executive, and judicial departments of the state government are not so absolutely distinct that an arbitrary exercise of power, or, what is the same thing, an arbitrary refusal to exercise power, could not be checked or opposed by either of the other departments. Such a theory is opposed to the principle of checks and balances upon which the federal and state constitutions have been framed. Indeed, it does not seem clear to us, if the judicial department may annul an act of the legislature by declaring it unconstitutional, why it may not constitutionally exercise its functions in requiring the executive department to perform a clear legal duty which it neglects or refuses to perform. Neither are we ready to acknowledge that any office or officer is so high that the law cannot reach him. And now it is necessary to define more distinctly what are ministerial duties and ministerial acts. Perhaps no better definition can be found than that given by the supreme court of Indiana in Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468, which is as follows: "A ministerial act may perhaps be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act being done." Assuming for the present purpose that the duty of the governor to act when a vacancy occurs in the office of lieutenant governor is found in Rev. St. § 81, it is clear that the duty thus imposed is mandatory. The governor is allowed no discretion as to acting, however much discretion he must necessarily exercise in selecting the person whom he shall appoint. It is equally clear, we think, that this power is not essentially an executive function, but is derived wholly from the command of the statute, and that under the constitution (article 2, § 27) the legislature might just as lawfully have imposed the duty on some other officer; for the appointment of all officers and the filling of all vacancies not otherwise provided for in the constitution shall be made in such manner as may be directed by law. The power to appoint officers does not inhere in the office of governor. When no such power is conferred on the governor by the constitution or by a valid enactment by the legislature, he cannot exercise such power. The power to appoint to fill a vacancy has been delegated by the people to the legislative branch

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