Page:State v. Johnson.pdf/20

300  Rh   therefore, he is required to take an oath of office, and he declines to do it within the time prescribed by law, while such neglect does not, ipso facto, vacate his office, the body, of which he is a member, may declare the office vacant, upon the ground of his refusal or neglect to assume the responsibilities in the mode directed by law." This lucid statement of the law, by that learned court, needs no comment.

In the case of Heath and others, the Supreme Court of New York say: "Nothing is better settled, as a general rule, than that, where a statute requires an act to he done by an officer within a certain time, for a public purpose, the statute shall be taken to be merely directory; and though he neglect his duty, by allowing the time to go by, if he afterwards perform, the public shall not suffer by the delay." 3 Hill, 47; see, also, 6 Wend., 486.

In the case before the court, it certainly will not be insisted that the taking of this oath, by the Lieutenant Governor, was an act to be done for a public purpose; and this very learned court say, a neglect of duty in letting the time go by, if he afterwards perform, the public shall not suffer by the delay. And no vacancy is alleged to have occurred, nor injury done, in this instance.

We are clearly of the opinion that qualification and entering upon duty by the Lieutenant Governor, after the expiration of the fifteen days, would entitle him to the office. The schedule, in its whole scope and spirit, is a directory act, and no negative words are used prohibiting the taking of the oath at any time after the fifteen days, and no penalty is affixed for failing to take it within that time.

The taking of the oath was collateral and preliminary to the main object of filling and exercising the functions of the office, and not the essence of holding or doing the duties thereof.

For the same reasons that this demurrer should have been held good, we are of opinion the demurrer to the respondent's second plea should have been overruled.

We also disagree with a majority of the court upon the