Page:State v. Johnson.pdf/16

296   Rh    Governor without warrant or sufficient authority, admits his election to that office, but alleges that he failed to take his oath of office and enter upon the duties thereof, within fifteen days after he was notified of his said election.

Second. That he refused to qualify according to law, and filed a copy of his oath in the office of the secretary of State, whereby he had forfeited any right he may have had to that office.

It has been intimated, in argument, that a quo warranto is a favored prosecution; but upon the demurrer to this writ, it has not been contended that the attorney general, in his relation, is not bound to state facts which, if true, by law, the respondent is not entitled to hold the office; in other words, he must state facts which show that the State is entitled to a judgment of ouster.

In this, as in other suits at law, the pleader should state facts, matters issuable, and not conclusions or inferences of law; and if the facts charged constitute no cause of action against them accused, he may suggest that to the court, and be relieved from making any response. This is the ground assumed by the respondent here, and denied by the relator.

The latter clause of the tenth article of the schedule to the Constitution of 1868, declares that, "all officers shall qualify and enter upon the discharge of the duties of their offices within fifteen (15) days after they have been duly notified of their election or appointment."

The principal questions urged upon the attention of the court are:

First. The relator urges that this clause in the schedule is mandatory, and must be complied with; and if respondent failed to comply therewith he forfeited all rights he had acquired to the office, and could not afterwards assume the franchises, powers and privileges of that office. And the respondent urges that this clause of the schedule is directory, and if the party does not take the oath of office within the time stated he may thereafter take such oath and enter upon the duties of