Montana Attorney General Opinion 15-5

Opinion No. 5 Public Officel-s-Official Bond, Tardy Filing of. HELD: Statutes requiring an oath of office and bond at'e usually directory in their nature; and unless the failure to take the oath or give the bond by the time prescribed is expressly de- clared, ipso facto, to vacate the office. the oath may be taken or the bond given afterwards, before the term he- gins if no vacancy has been declared. January 9, 1933. Your request for nn opinion respect- ing the status of Marie A. McLean, act- ing Count~' Clerk of Deer Lodge County, has been received. According to the facts before us, ~Iarie A. McLean received a majority of all the \'otes cast a,t the last general election for the office of County Clerk of Deer Lodge County and was given notice of her election on or about the 24th day of November, 1932, but she did not file her official bond (after ap- proval hy the District Judge) and the oath of office until the 30th day of December, 1932. 'l'he Board of County Commissioners of Deer Lodge County, however, took no affirmative action in the matter prior /Xl her qualification as such County Clerk. In view of the circumstances we think the ca'se of State ex reI. Wallace v. Callow, 78 Mont. 308, is controlling. There the Supreme Court held that sec- tion 432, Revised Codes of Montana, 1921, is directory only and that thc fruilure of the officer-elect to qualify within the thirty-day period did not, ipso facto, work a forfeiture. The Court further held, in effect, that if an of- ficer-elect file the oa th and bond after the lapse of the thirty-day period but before the term of office begins and the appointing authority remain quiescent up to the time such filing occurs, then the power to declare a vacancy after- wards and make an appointment is lost. The great weight of authorit)', in- deed, is to the effect that "Statutes re- quiring an oath of office and bond are usually directory in their nature; lind unless the failure to take the oath or give the bond by the time prescribed is expressly declared, ipso facto, to va- cate the office, the oath may be taken or the bond gh'en afterwards, if no va- cancy has been declared." (Dillon on ;\Jun. Corp. 4th Ed. ; ,Vallace v. Callow, sup I'll ; In re Bank of Mt. Moriah's Liquidiation-CanBey, Com't·. v. VHlage of Mt. Moriah. 4!) S. W. (2d) 275.) 24 OPI~IONS OF THE ATTOR~EY GE~ERAL In conclusion, we think l\iarie A. Mc· Lean is the de jure County Clerk of Deer IJOdge County and entitled to all the rights and emoluments of the office.