# In re Knight

> Tennessee Supreme Court · December 15, 1879 · 71 Tenn. 401

URL: https://www.frixlaw.com/law-library/cases/8296479

## Case

- **Full name:** In the Matter of W. A. Knight Ex parte
- **Court:** Tennessee Supreme Court
- **Decided:** December 15, 1879
- **Citations:** 71 Tenn. 401
- **Precedential status:** Published
- **Opinion:** Dissent by Freeman
- **Judges:** Freeman, McFarland, Tupjstey
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Freeman, J.,
delivered the following dissenting opinion :
This is a. proceeding had before the Hon. Frank T. Eeid, Judge of the Circuit Court of Davidson county,. in which the office of trustee, held by Knight, is declared vacant because of assumed failure of Knight to *439 give sufficient bonds as required by law, on tlie requisition of said Judge or court.
The following sections of the Code are necessary to be cited for properly understanding this case.
By section 725 of the Code: “ The clerk of the County Court shall produce to the Judge of the Circuit Court for his examination, at the first Circuit Court in his county, on the second day of the term, after the first Monday in April in each year, the bonds of all county officers taken in such year by the County Court.”
Section 726 is: If upon said examination said bonds shall, in the opinion of the Judge, have been taken according to law, he shall write upon them “examined and approved,” and sign his name thereto. But if any such bonds shall not have been taken agreeably to law, the clerk of said Circuit Court shall issue subpoena instanter for such officer to appear before said Judge immediately, to enter into bond, with 'surety, according to law.
Section 727, provides for declaring the office vacant, if the person so notified fails or refuses to give the bonds, as required.
By section 777, and succeeding sections of the Code, it is provided, first, that it is the duty of the Governor to require new or additional bonds from the Comptroller, Treasurer and Secretary of State, when, in his opinion, the interest of the State demands it.
By section 778, and sub-sections, “All other public officers who are compelled to give official bonds, may *440 be required by the court or officer whose duty it is to take or approve such bonds, to give additional security, or new bonds, in the following cases:
1. When the security of the original bond has become insufficient, by the subsequent insolvency, death, or removal of the sureties thereto, or any of them.
2. Where there is good reason to fear the public interest may suffer for want of such new and additional security.
3. When the Grand Jury of the county, or a majority thereof, certify the insufficiency of the original bond.
The requisition to give the additional bonds, is to be signed by the officer making it, and state the day and place when and where the officer cited shall appear and give such bond, and a copy is to be served on the officer before the day specified therein.
By section 780, such officer is to give the additional bond within ten days after the day specified in such requisition, and failing to do so, vacates his office, and the officer making the requisition shall at once certify the fact to the appointing power, by whom the vacancy shall be filled.
By section 5079, and sub-sections, it is made the duty of the Grand Jury to inquire into various matters of county administration, among others, into the condition of the county treasury, and the bonds of county officers with regard to their correctness and sufficiency, and into the misconduct in office of county officers.
The facts in this case are briefly as follows: The *441 motion was made on the 18tb of June, 1879, in the Circuit Court, to vacate the office of Knight, based on the statement of a report of the Grand Jury made to Judge Quarles of the Criminal Court, of the irregularity and insufficiency of his bonds as county trustee. Subpoena was issued for Knight to appear on the next day.
The Judge being sick, did no come into court until the 20th, when Knight appeared, and, after some contest, an order was made and entered on the minutes of the court, that “from an inspection of the four bonds given by him,” and the report of the Grand Jury, said bonds were irregular and had not been taken according to law, and that the amount of bonds was not sufficient it was therefore ordered that Knight be granted till the first of July to give new bonds, (the amount of each bond being fixed), and if he fail to do so, his office to be declared vacant. On the 28th of June, Knight appeared by counsel, and took a bill of exceptions, excepting in general terms to the reading of the report of the Grand Jury, and then moved the court to justify existing bonds, which was refused.
On the 1st of July he presented new bonds, with the affidavits of parties to the same, before the court, specifying the amount and value of the property assumed to be owned by the bondsmen, so as to show they were probably good for the amount, on their own estimate of the value of their property. The Judge seems to have taken these bonds under advisement. And while so advising, took the affidavits of various real estate agents, as to their estimate of the value of said *442 property, and on this basis, reached the conclusion that the bondsmen lacked upwards of $37,000 of being worth as much as the sum required — and on the 5th of July he delivered an opinion, announcing this conclusion, with his reasons for it, and entered a final order vacating the .office.
After this, perhaps on the 7th of July, an offer was made to increase the amount of the bonds, but this was refused, and a bill of exceptions (or which is claimed to be one), signed by the Judge — an appeal having been refused — and the case is now before us on writ of error and supersedeas, granted by one of the Judges of this, court.
Two leading questions are presented on this statement.
First: Whether this proceeding is judicial in its character, and as such subject to review by this court by appeal or writ of error as a substitute for an appeal, or whether the action of the Circuit Judge is merely a ' matter of administration, in the nature of a special tribunal, assigned to the duty of accepting or-rejecting these bonds, whose action is final, and from which no appeal lies, and as we understand it, no remedy whatever existent, by which the propriety of this action can be effectually tested.
This question is one of no little difficulty. The statutes conferring the authority have said nothing to enlighten us on this question. We are, therefore, compelled to arrive at our conclusion from the nature of the duties imposed, the tribunal to which it is assigned, and the general analogies of law, as found in our local jurisprudence.
*443 On the part of those who maintain that this is not a judicial proceeding and no appeal lies, the argument from inconvenience and detriment to the public service, under a contrary practice, is pressed with much force, and made controlling in reaching the conclusion arrived at in support of the negative.
It is assumed the duties of the Circuit Judge, in a case like this, are the same in kind as that performed by the County Court, or a County Judge wben one exists, in taking the bonds originally, and that in case the County Court or County Judge should refuse to accept bonds tendered by an officer for any cause, no appeal would lie, and probably no remedy exists whatever — at any rate, the remedy is not definitely pointed out. This is based on the confession that would or might grow out of a contest over such a question — the officer ' not being inducted into office until bond given, and the injury to the public service by having no officer to perform the functions of the office. While this is felt to be of great weight, and as applied to the question of induction into office originally, might or might not be controlling, thé question is, is there not a difference between the case of an applicant to be inducted into office, and the one of an officer already in office, who is to be turned out of office by the proceeding? It might very plausibly be maintained, that in the first case, the tribunal appointed' fco take the bonds, being the county officials familiar "with the citizens of the county, would be the fittest tribunals possible to determine on the solvency of the parties to such bonds, and that this question could' *444 well be left to them, as it must be reposed somewhere. But the argument would entirely fail in almost every case, in our State, where the Circuit Judges preside over from four to even as high as nine counties, and even in the two or three cases where he presides ■over but one county or part of a county, the nature of his office and duties renders it next to impossible he shall have any such peculiar knowledge.
But I think the distinction in the two cases is very well marked by this fact. In the one case, the ■County Court as the representative body, having control of the police and administration of the county, may and does properly decide on the solvency of the parties to all official bonds. In the case before us, an officer is in the possession and enjoyment of his ■office; it is a well-settled property right, one having emoluments of value, and having honors that in a republican government are sometimes deemed of equal or greater value. Is it the same thing precisely to be oustecl from the enjoyment of these upon the arbitrary decree •of a Circuit Judge, based on a mere inspection of his bonds, or his adjudication, not judicially made even, that the bonds tendered by him are insufficient? It seems to me there is enough of difference in the two cases, in connection with the difference in the tribunals, on which to base a distinction in favor of the right of revision in the latter case, even though denied in the first.
But let us turn for a moment to the other side of this question, and see if there are not arguments to be drawn from the same source of equal, if not *445 greater weight in favor of the idea, that this is a judicial proceeding, and as such to be conducted on legal investigation, and fan improper or erroneous judgment subject to be corrected and revised, as in other eases.
Eirst. I think there is no more of inconvenience1 or danger to the public interest in suspending the judgment of the Judge removing from office, than there would be in the common case of a contested election.
In the case of Blackburn v. Vick, 2 Heis., 381, this court held, that notwithstanding there was no statute providing either the mode or tribunal in which a revenue collector’s election should be contested, that nevertheless, such a contest could be made before the County Court, and that from this decision an appeal lay to the Circuit Court, and then to this court. This conclusion was based on the fact that the county court was to induct the party elected into office and take his bonds, etc., and then on the further ground, that the right to be elected to the office involved the right “to assert, prove and maintain the right to the office.” The court say: “If, however, another party U’ay take the office, regardless of the question of who is elected, then unless his right can be contested and tried before the tribunals of the country, there is no remedy. He has a right, but no remedy for its infringement.”
I think this reasoning sound, and its application to this case forcible. The party is in office — has a right to it by law — has been by the County Court regularly inducted into office, giving the bonds required *446 by that court. A grand jury, on an ex parte investigation, reports that these bonds are insufficient. If the theory maintained be true;I then this or any other county officer may be turned out of office on this report, although his bonds tendered in response to this report may be perfectly solvent, all that the law requires in order to its enjoyment. I confess, that while conceding the force of the argument of ineonve-nienti, in this case, I have a more determined and inveterate objection to the exercise of irresponsible power, than I can ever find to the production of mere inconvenience in public administration. These inconveniencies in the warmth of argument will generally be more or less exaggerated, but in practice will be found to be much modified, and far less than an acute mind can show them to be, when pushing the results of a principle to its utmost limits, besides they can be readily remedied by legislative action
But the evils of irresponsible power by which a man’s property, whether in an office or any other species of property, are so real and so far reaching,, have so many consequences that cannot be foreseen, are so abhorrent to the genius of our government, and subversive of the enjoyment of rights by the citizen, that there can be but little exaggeration in this direction. Its exercise is everywhere felt to be the essence of tyranny, and not to be permitted in a free government. The axioms of liberty embodied in our Constitution, taken from Magna Charter, but express the universal sentiment of all free persons on this subject: “No man shall be taken or imprisoned, or *447 disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” I need not say that the law of the land does not mean either an arbitrary enactment of the Legislature, or an arbitrary judgment, without an investigation, or a right to be heard. This is all axiomatic in our jurisprudence.
The proceeding by which a man is deprived of a right of property, must be by due process of law, a trial, investigation and determination, • after a hearing, in which the facts are presented — and this is a judicial proceeding, whatever its form may be or however informal.
In the case cited, from 2 Heis., there was no provision of the statute for contesting the election of the particular officer then before the court. Yet we held that in such a case it was the duty of the court which was to induct into office, to try such contest and to prescribe the form of an issue that should be made up, so as to present the question to be decided, and if not made up in the County Court in the first instance, it was the duty of the Circuit Court, on appeal, to have such issues made, hear the evidence, and decide the question. In this we followed the case of Boring v. Griffith, 1 Heis., 456, — opinion by my Brother McFarland. In that case it was further held, that when the contest had been commenced, the right should be tried and contest determined, even after the one claimant had been inducted into office. This necessarily involves the result that such officer might *448 be turned out of office — but both cases hold it is a judicial proceeding, subject to appeal and revision. This is beyond dispute. Now if these cases be not overruled, then I cannot see how they can be distinguished in principle from the present case. The only element of difference is in favor of the right in this case, there being no question as to the party having been elected, and regularly inducted into office.
The one is a contest to assert a right to an office by election alone — the other is the assertion of the right, after induction into office. In the one case there is a claim that another is entitled to the office,' and so there is an element of doubt as to the right of the contestant and the other claimant, as the case may be decided in favor of either the one or the other. In this there is no such element of doubt, no right of any one being possibly interfered with — only the defendant arbitrarily deprived of his office, with no remedy for the wrong.
It does seem to me, that if a party merely claiming the right to be inducted into office, is entitled to a trial and be heard before the courts of the country, before that right shall be determined against him, that much more shall he who already has the office, be entitled" to the same measure of right before he can be deprived of his acknowledged and valuable property — certainly it devolves on those asserting the contrary, to distinguish between the two cases, or show at least a plain requirement of the Legislature in favor of the contrary view in a case like the present. To rely upon inference, and that, to say the least of it, *449 not very fairly drawn, as I think, cannot in my opinion be justifiable.
In addition, I may say, the action of the County Court as to induction into office, including of necessity the taking of the bond, was held in the above cases judicial action, and so the argument is, in some degree at least, real, that the County Court acts in the first place arbitrarily in the matter of induction into office, and on this assumption much of the argument of the majority opinion stands for its support.
Again, by the Constitution, bill of rights, sec. 17, “ All courts shall be open, and every man for an injury done to him in his lands, goods, person or reputation, shall have remedy by due course of law, and' right and justice administered, without sale, denial or delay.”
In view of these fundamental provisions, I feel bound to hold (unless the contrary is expressly declared), that all proceedings by which a party is to be deprived of his right are judicial, and therefore not arbitrary; and if judicial, then subject to revision and correction in the common course and ordinary mode in which such action is regulated or revised by this court.
It is a question in fact, where no rule is positively prescribed, as to whether we shall favor arbitrary or judicial action in a case involving a valuable right. On such a question, I cannot hesitate to decide in favor of judicial, rather than the rule of arbitrary will. This, I think, presents sharply the real issue. There is no mandate of the Legislature forbidding the infer *450 ence that the action of the Circuit Judge is judicial in its character. All is to be inferred — all the weight of traditions of our jurisprudence, as well as requirements of our Constitution, are in favor of the construction that makes it judicial, and all these are against the opposite view.
Let us for a moment look at the nature of the duty to be performed, and the tribunal performing it. It is, that he shall be required to give new and sufficient bonds, where they are insufficient. The sufficiency of a bond to secure the revenue collected by .such an officer, is a question of fact to be ascertained as other facts are ascertained, by testimony or other evidence appropriate to elicit the truth in the case. The investigation in this case involves in it no element different in essential features from any other investigation of the solvency of parties in our courts— such, for instance, as' to whether a voluntary conveyance shall be held good by reason of the maker having retained sufficient property to meet his liabilities. If this be so, there is the nature of the thing to be done in favor of the view that what is to be done is a judicial act.
Assuming that it is a proper holding for the sake of the argument, that the Circuit Judge is the officer to act on the report of a grand jury, then the fact that the action is to be taken by a Judge, carries with it a strong inference, that his action is to be judicial action. This is controlling to my mind, unless the nature of the act to be performed repels this idea. "We have seen it does not. This ought then to be *451 met by a mandate of the Legislature showing a contrary purpose. This is not to be found — and neither existing, I can see no escape on these grounds from the conclusion that the act is judicial.
But when we look at the requirements of the Code, this view is still stronger,- as I think. Taking all the sections together, they may be summarized in about this: That where the bonds are not taken according to law, that is m the prescribed form or amounts, the party shall be summoned before the Judge immediately to give sucl] bonds, and on failure to give them, the office is to be declared vacant. But suppose he does in fact tender them, does it not follow it is not vacant, and cannot be so declared? But if the action of the Judge is not judicial, and no appeal, then we are left to his unchecked will. But to proceed, on the report of the grand jury of the county or a majority of them, that the bonds are insufficient, then the party is to be cited to appear and give such bond as is sufficient. Pie shall give the bond within ten days after the day specified in the requisition, and failing, the office is to be declared vacant. His right is clear to remain in the office, if he gives the bond required by law. This fact, then, must be adjudged by the tribunal which is to take it. That tribunal being a judicial officer, on what principle we are to assume he is to act unjudicially (so to speak), when it is not said so, I am at a loss to see.
The reports of grand juries in every case, except three or four in our State where we have special *452 criminal courts, will be made directly (if this court has jurisdiction), to the Circuit Court during its session. It seems to me eminently proper, that whatever tribunal shall perform this duty, there should be a record made of so important a matter as the removal of an officer from his office. If the court acts judicially, this will always be done on the minutes of the court. If not, then no such record will exist, and a simple statement sent to the appointing power, will be all that shall evidence the vacation of the office by the officer chosen by the people, and the only warrant for filling the vacancy thus created. I confess this does not accord with a well-administered system of government in any view.
But another view presses itself upon us. Our officers of this character are filled by election of the voters of the county. This gives the right, under-our Constitution and laws. The view which I am combating involves the proposition, and that to the fullest extent, that this election, and this right resulting from it, even after induction into office, may be all nullified and rendered of no effect, by the will of one man, and it may be, and in most cases will be, by a citizen of another county. The case need but be, of a report of a grand jury or seven of that body, of the insufficiency of the bond of an officer. He is required to give a sufficient one. He tenders one amply good, as the law requires, but the Judge says, I refuse to accept the bond tendered, and he goes out of office. No reason need be assigned, no record is to be kept. The only writing is the notification to *453 the appointing power. Is there no remedy for this, no cheek on such action? On the theory maintained, I see none.
If you say a mandamus would lie to compel a Judge to do his duty, as a ministerial officer, then does not the same inconvenience occur, as in the case under the view I have contended for, or may not the confession be worse? For if the right to a mandamus is conceded, then it may be successful, and then yon have the question as to who was entitled to the office and its perquisites during the time of the contest, to settle, whether an appointee, as on a vacancy that did not in fact exist, or the officer having the right. "Whether the office could be held vacant and filled during the pendency of the proceeding to compel the acceptance of the bonds, I need not determine. Be that as it may, there is difficulty enough in the case.
This being so, I think the argument from inconvenience is sufficiently met, and certainly the only fair •construction is, that there is no remedy, or none that is effective, which is the same thing. And that brings us to the simple question, whether the Legislature has the power to authorize a party to be deprived of his office arbitrarily, at the will of any man or tribunal, with no remedy in case his right is infringed. To this I but answer in the language of the bill of rights already quoted: “ No man shall be disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed, or de.prived of his life, liberty or property, but by the judgment of his peers or the law of the land.”
*454 If an emergency or public exigency can create an. exception in the case of the right to an office, it may equally do so in the case of imprisonment, of disseizin of his freehold, or exile, or even his life. I see no place where the line can be drawn which shall say, so far you may go, and no further, and therefore I shrink from the first step, as I would from all that might follow.
I see no great practical inconvenience to follow from this view. The bonds taken by the County Court or Judge, will in most cases be good, or' approximately so. In most cases the officer, when required, will tender good ones, and the Judge accept them. The county will have the original security of the first bonds for their protection, and the new bonds tendered, if accepted at last at the end of the contest, to cover all liabilities, and this will be ample. When a contest is pending, the officer will be likely to be careful in the performance of official duties, besides be watched by interested sureties. So that all the probabilities are in favor of a faithful performance of duties during the period. Besides, there is the supervision of a grand jury every four months, together with the general supervisory power of the County Court or County Judge. The influences and checks may better be trusted to, I think, than to permit any man arbitrarily to exercise the function of depriving an officer of his right to his office, its honors and emoluments. The public interest, I think, cannot seriously suffer' during the trial of the question of the sufficiency of his bonds. Constitutional liberty must *455 always receive a shock, wben arbitrary power is exercised to tbe injury of the right of the citizen. I do-not feel at liberty to measure the extent to which this may reach. It is sufficient to know it is the exercise of arbitrary power, to say, it might not, it cannot be, under our Constitution of government. Conceding, but not admitting, for the sake of argument, that the fair construction of the provision of the Code is, that the Legislature intended to give the Circuit Judge, 'individually, but not as a Judge, nor judicially,, the power to decide upon the right of an officer to continue in his office, and to deprive him of that right, and that this decision should be made practically at his will, and be final, not subject to appeal or revision, I .do not think the case is helped in the least. The Leg-lature can no more deprive a man of his rights by authorizing another man to deprive him of them, than it can do so by a direct enactment to that effect. What it cannot do arbitrarily, it cannot authorize to be done in the same way. This certainly does not need authority to sustain it.
If admitted, then the fact that Frank T. Reid, as a special tribunal, not bound by tbe forms of law, nor' acting as a judicial tribunal, has said that the trustee of Davidson county shall be deprived of his office, can have no more force, than if the Legislature had said it, and that would have none whatever. In short, I deny the power of the Legislature to confer the power on any man, or body of men, to deprive a citizen of any property or right whatever. This can only be done by authorized judicial tribunals, acting *456 through the established forms of law, after due investigation according to such forms, in other words, by the law of the land, or the judgment of his peers. It certainly never can be maintained, that while a man cannot be deprived of the right to a horse or cow by the arbitrary enactment of a Legislature, either directly or indirectly by authorizing another to declare it forfeited, yet that an office to which he has been legally elected, and which he then holds, shall be taken from him arbitrarily without remedy, that may yield an income of five thousand dollars, enough to purchase fifty horses or cows or more. Yet this is the result of the theory of the majority opinion, as I understand it. All this too is sustained, not by the express language of the Legislature, but from the influence solely of the argument ab inoonvenienli, and danger of public inconvenience. Conceding the just weight due the argument from this source, it can never rightly be as the dust in the balance, as compared with the evils incident to the exercise of arbitrary power, to deprive a citizen of a valuable right.
The truth is, that supposed demand of sudden exigencies can never be made a sound basis for general rules of law or right. Decisions made to meet such cases will always be found incongruous, and impossible to be fitted into our general system, the leading idea of which is, that all rights are' to be determined by the regularly established exponents of the law of the land, acting under the responsibilities of judicial position, with its wholesome legal and traditional restraints and limitations. After careful thought, however, I *457 conclude tlie Circuit Judge has no jurisdiction, either as a court or as a special tribunal, over the question of the bonds of the county officers, except in the case specified in section 725, where the clerk of the County Court produces the bonds of all county officers, at the first Circuit Court in his county, on the' second day of the term, after the first Monday in April in each year. In this case I think the court acts judicially. He is to act at the first Circuit Court and on the 2d day of the term, thus implying it is a part of the business of the court during that term, and he is to decide on the validity, as a matter of law, of the bonds. This is a legal question, placed under the jurisdiction of the Circuit Court, of which it takes cognizance at the specified term every year.
But let us turn to the provisions of section 778 ■and sub-sections, that all public officers who are compelled to give official bonds, may be required by the court, or officer whose duty it is to “ take or approve such bonds, to give additional surety or new bonds in the following cases:
1. Where the security in the original bond has become insufficient, by the subsequent insolvency, death or removal of the sureties thereto, or any of them.
How it is clear that this case is not referred to the Circuit Court or Circuit Judge, for he as such cannot be made cognizant of the facts, living, as he does in most cases, out of the county, (he can but reside in one), he has not the means of knowledge of the facts specified on which the new bonds are to be taken, and no mode of bringing the facts to his at *458 tention is provided. The duty is an appropriate one to the chairman of the County Court, or that court, or the County Judge, where there is one, and we take it that this would be conceded, that in the case under this sub-section, the court or officer approving or taking the bonds in the first instance, is the one to require the new bonds.
The second sub-section is, where there is good reason to believe the public interest may suffer for want of such new and additional bond. Certainly it would not be claimed that so general a duty as looking after the public interest of a county, and of each county in his circuit, in reference to official bonds, was intended to be imposed on a Circuit Judge, and that to the exclusion of the County Court or chairman, the-body having general supervision of county administration. The fact that some of these Judges have as many as nine counties in their circuits, and all as many as four, except three or four, would preclude this conclusion. The fact, too, that this is a matter of county administration, which belongs under our system peculiarly to the County Court or County Judge, would render this absolutely certain, unless the Legislature had, in terms unmistakable, so expressed its will. This has not been done.
Then follows the third sub-section — when the grand jury of the county, or a majority of them, certify the insufficiency of the original bond.
To sustain the jurisdiction of the Circuit Court, it must be shown, that in this last case the duty of taking the new bond is to be performed by a differ *459 ent official or tribunal, from the one to which the eases in the first and second sub-sections are referred. But the section 778 expressly fixes the duty in each ease on the same court or officer, that is, “the eowrt or officer, whose duty it is to take or approve such bonds;” that is, as I construe it, in the first instance, as the regularly established official or officers, whose ordinary duty by law is to take these bonds. It would but be natural, that the same tribunal that took or approved originally, should be charged with the duty of seeing that the bonds taken should continue-equal to the end for which they were designed, and this whether the knowledge of the need of new bonds should come to the officials charged with the duty, from observation, or by the report of the grand inquest of the county. The language of the sections defining the duties of the Circuit Judge, section 725, and that of 778 and 779, tends to aid this view. In the first case, it is that the clerk shall present the bonds to the “Judge of the Circuit Court” — the “Judge shall examine,” and the officer is to be summoned to appear before “said Judge.” In this case, however, 779, the requisition to give the additional bonds shall in 'all cases be signed by the officer making it — not the Judge. The officer making the requisition shall certify to the appointing power, etc. If the same officer was intended, to-wit, the Circuit Judge, it is strange that in the one case it is so said, and in the other left under the indefinite designation, officer. This, however, may well apply to the Chairman of the County Court or-a County Judge
*460 But section 426a of tbe Code, (act of 1868-9, eh. 41), it seems to me, makes this view still stronger as to the county trustee. It provides: “ It shall be the duty of the County Courts, or board of commissioners in this State, to examine into the solvency of the county trustee’s bonds, and if found to be insufficient, •as provided by law, it shall be the duty of the court to notify him of the fact, and require him to give new additional security in such sums as may be fixed upon by the court, sufficient in their judgment to cover the revenue of the county, and if the bond or security be not given on or before the ensuing term of the court, then it shall be the duty of said court to declare the office vacant, and to elect or appoint his successor, who shall be required to give bond,” etc.
This section, fairly construed, would seem to impose the duty of examination into the sufficiency of this bond on the County Court, and manifest the legislative intent to be, that this body was the body charged with the supervision of this branch of county administration. The County Judge or chairman of the County Court, by section 421, is made the accounting officer, and general agent of the county. As such general agent, the County Judge and chairman is the officer to whom the report of the grand jury should be made, and who is to make the requisition to give the additional bonds in the first two cases provided for in the sub-sections; and if so, it seems to me, it fellows inevitably that the same duty is to be performed by the same officer in the latter case. Certainly no reason is found for the duty being imposed. *461 on the Circuit Judge, and all tbe analogies ■ of our system of administration require it to be performed by the County Judge or chairman, as the general agent of the county. "Why take it from the general agent of the county, and give it to an irresponsible individual, who is Circuit Judge — not to that' court?
This act of 1868, requires the performance of the precise duty that has been performed here, to be performed by the County Court. Why may this court not as well look after and examine into the solvency of the bonds of the trustee, on the report of the grand jury, as the Circuit Judge? We see no reason against this practice. This statute has but to be held to modify the former statute, as to the time to be given, and give the jurisdiction directly to the County Court in the case of county trustee, and you have the whole system of county administration in harmony, and confided where it ought to be,, to responsible representatives of the county, familiar with the question on' which it is to act.
For these and other reasons, I am for reversing the action of the Circuit Judge in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8296479. Public record. Not legal advice.