City of Chicago v. Gage.

set up in defense to the bond by the signers, or a portion of them, that they signed the bond upon the condition and agreement that all or certain named of the obligors mentioned in the bond were to sign it before delivery, and that they had not done so. In such case the bonds purported to be the bonds of those who never executed them and indicated on their face that they had not been completed according to the original intention, and properly enough the obligees were held to be put upon inquiry whether those who had signed consented to the bonds being delivered without the signatures of the others who were named as co-obligors, the defect in the bond indicating on the face of the instrument the very thing which was set up in defeat of the bond.

Of the other two cases thus cited, one was that of the erasure of the signature of one of the sureties to a bond before its approval. The defense was this alteration of the bond. The alteration was apparent on the face of the bond.

The other case was that of a collector's bond being altered after its execution, by reducing the amount of the taxes to be collected without the knowledge or consent of the sureties. The alteration appeared upon the face of the bond, and was held notice to the parties receiving it.

Thus it will be seen that in every one of these cases the very matter of exception taken to the validity of the bond was indicated upon the face thereof, or the circumstance of incompleteness in the instrument pointed at and indicated on the face of the bond the existence of that particular secret condition or agreement which was set up as attending the signing of the bond, and as defeating it.

This is all that the exhaustive research of the very able counsel for appellees has produced in the way of authority in support of this last position, that a defect in a bond is notice, and we do not consider that the authorities at all meet the exigency of the present case.

The point in this respect of notice is not whether there was knowledge of the existence of these blanks unfilled, but whether there was notice of this secret understanding in regard to the amount of the penalty of the bond. It is in reality a question of good faith-whether these blanks in the bond indicated the existence of the secret understanding as to the amount of the penalty, and should have put the obligee upon inquiry whether the sureties

City of Chicago v. Gage.

consented to the delivery of a bond with a larger penalty than $250,000. We do not think such a circumstance as the blanks in the bond was in any way indicative of such a secret understanding, or excited any suspicion of its existence, or put the obligee upon any inquiry as to such an understanding, and we must believe the obligee acted in entire good faith in taking the bond.

The cases cited by appellees' counsel do not, as we view them, decide any thing to the contrary. There may be found in one or more of them some such general expression as that the instrument when delivered must be perfect on its face, or otherwise the obligee is chargeable with notice of the facts, and cannot claim the benefit of this rule of protection; but such general observation must be taken with reference to the facts of the particular case, and as applying to an imperfection of the character there appearing; the defect in the case where the language was used being, as before said, that one whose name was in the body of the bond had not signed it.

The bond signed and sealed by the sureties was presented by Gage to the common council as his required official bond. The common council were not to suppose that the sureties had done a mere idle thing, or that they were dealing deceitfully with the council in tendering this bond for their acceptance, and having in reserve a secret understanding which should nullify the bond. But they had the right to think the sureties meant honestly, and intended that the instrument they had signed should be accepted as, and serve for, the official bond of Gage. And although there were the unfilled blanks in the instrument, they saw that Gage had implied authority to fill them in such appropriate manner as might be necessary to make it such that it would be accepted by the common council as Gage's official bond as city treasurer, as they were so informed by decisions of the highest courts in the land. Of course then the blanks in the bond were no indication of the want of authority, and could not put the obligee upon inquiry as to its existence.

Another point which is made against the validity of the bond is, that failure to file the bond within fifteen days after the canvass vacated the office therein described, and thereupon all liability under the bond terminated.

The position is, that the provision requiring a bond to be filed by the treasurer elect within fifteen days after the official canvası

City of Chicago v. Gage.

has been declared is mandatory, and that a failure to file the bond within that time eo instanti, upon the termination of the time, absolutely vacates the office.

It is insisted on the contrary, that the sections of the charter on this subject taken together were intended merely to empower the mayor and council, in their discretion, to declare a vacancy and appoint a successor, or to waive the default as to the mere time of filing bond, and to accept and approve it when afterward filed; therefore, a failure to file in time does not, of itself, annul or avoid the right or title to the office, but merely renders it voidable or defeasible. That if the officer files his bond strictly in time, his right and title to the office are indefeasible. If he files it afterward, and it be accepted and approved, his right and title thereupon become equally indefeasible.

This latter seems a reasonable construction, and is one which we are disposed to adopt. Gage derived his title to the office from the election. The law does not favor forfeitures, and "in enforcing forfeitures courts should never search for that construction of language which must produce a forfeiture, when it will bear another reasonable construction." Hartford Ins. Co. v. Walsh, 54 Ill. 168; s. c., 5 Am. Rep. 115.

Supposing the filing of the bond within the fifteen days had been prevented by some inevitable accident, but the very next day after the officer filed his bond, which was accepted and approved,- in reason, why should not that suffice, and the officer have right to the office for the term for which he was elected? The aim of the statute would be fulfilled. The object of the statute was not a change of person to hold the office, but to secure an official bond. That having been given, the person whom the people had elected would seem the more proper person to have the office, than one appointed by the mayor and council.

It is conceded that after the expiration of the fifteen days the mayor and council would have been fully justified in refusing to accept and approve this bond, because of this default; and in appointing Gage's successor, as in the case of Ross v. People, 78 Ill. 375. Had they so elected, Gage's right to the office would have been forfeited, and a person appointed who would give a bond. But (in theory at least) the rights and interests of the public were made equally secure by electing to waive the right of forfeiture and accepting and approving the bond in suit, after the fifteen days.

City of Chicago v. Gage.

"There is a known distinction," says Lord MANSFIELD, "between circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory. The precise time, in many cases, is not of the essence." Rex v. Loxdale. 1 Burr. 447. It seems reasonable that it is only when "the rights of the public, or of third persons depend upon the exercise of the power or the performance of the duty to which it refers," that the statute should be held mandatory, and otherwise but directory. Kane v. Footh, 70 Ill. 590; and see Sedgw. Stat. and Const. Law, 368-74. Here, the essence of the thing to be done,- that upon. which the rights of the public depend, is the giving of the bond, not the precise time when it is done.

There are numerous authorities that a provision of law, that an officer shall give bond within a prescribed time after his election, is directory only. People v. Holley, 12 Wend. 481; State v. Churchill, 41 Mo. 41; State v. Porter, 7 Ind. 204; and see Kearney v. Andrews, 2 Stock. Ch. 70; Speake v. United States, 9 Cr. 28. The other clauses in the charter, "he shall be deemed to have refused said office and the same shall be filled by appointment," or (if held to apply here) "the office shall become vacant," it may be held do not change the rule, as the following authorities show, in the case of words even more explicit than these.

In State v. Toomer, 7 Rich. (Law) 216, the statute required the master in chancery, within three weeks after his election, to tender his bond for approval, and upon its approval, to deposit it with the treasurer and sue out his commission, and that "upon his neglect or failure to do so within the said time, his office shall be deemed absolutely vacant, and shall be filled by election or appointment, as heretofore provided."

But the court held that the failure to comply with this requirement was only cause of forfeiture, but not a forfeiture ipso facto. That by a strict compliance with the directions of the statute, the title of the office was protected against forfeiture, "and that if the State sees proper to excuse his delinquency by granting him his commission, the defects of his title are cured, and it is converted into a title de jure, having relation back to the time of his election."

In Sprowl v. Lawrence, 33 Ala. 674, the statute required the sheriff to file his official bond in the office of the probate judge, before entering upon the duties of his office, and within fifteen days. VOL. XXXV-25

City of Chicago v. Gage.

after his election. The statute also expressly declared that if he failed to file his bond within the time prescribed by law, he vacated his office. The court there say: "By virtue of his election, Duncan was sheriff, so far as his mere right to the office was concerned, before he executed his bond. * * The election having thus invested him with his title to the office, the statute requiring him to file his bond within fifteen days, and providing that on his failure to do so he "vacates his office," operates as a defeasance, and not as a condition precedent," and concluding as follows: "Our conclusion is, that the failure of a legally elected sheriff to file his bond within the time prescribed, does not, by its unaided force, operate his instantaneous removal from office; and that a bond executed by him more than fifteen days after his election, and before any steps or proceeding on the part of the State to affect his amotion, must be considered as the bond of an officer,' within the meaning of section 132 of the Code," that is, of an officer de jure.

It is suggested by appellees' counsel, that this last case has been overruled by that of State ex rel. v. Tucker, 54 Ala. 205. But upon examination, we understand this to be so only in part, that is, in so far only as the former case seemed to require a judicial ascertainment of the vacancy before the appointment of a successor could be made.

Appellees lay stress upon these particular words in the condition of the bond, "or until said office shall be otherwise legally vacated." As the bond was signed by the sureties before the expiration of the fifteen days, it is contended that these words have reference to this very contingency of not filing the bond within fifteen days, and that by such express words of limitation, the sureties were not to be liable upon the bond if it was not filed within the fifteen days. We do not think it can fairly be said that in the use of these words the sureties intended to express the idea that they would not be liable upon the bond if it was not filed within the fifteen days; or that any special significance is to be attached to the use of the words.

The condition, in describing the office to which Gage had been elected, proceeds to speak of the length of the term of office, using the words, "to hold said office for the period of two years, and until his successor shall be duly elected and qualified or until said office shall be otherwise legally vacated" - but reciting what was the legal duration of the office. We think that these words referred