42 P. 133 | Or. | 1895
Opinion by
This is an action to recover upon the official bond of the defendant S. F. Murphy as treasurer of Baker City. The defendants J. H. Parker and Henry Rust are his sureties upon the bond. Murphy was duly elected treasurer at the regular annual election of the city November 7, 1892; and, having filed his oath of office, he executed and filed the bond in question on the 25th day of April, 1893, the condition of which is that the said S. F. Murphy “shall honestly and faithfully discharge his duties as treasurer of Baker City during his continuance in such office.” This bond was executed and delivered in pursuance of an ordinance of the city adopted January 7, 1891, requiring the treasurer to execute an official undertaking to plaintiff. The complaint alleges, among other things: “That on the 25th day of April, 1893, said S. F. Murphy duly entered upon the duties of his said office, and continued to act by virtue of said election until the 19th day of December, 1893; that the term of office of the said S. F. Murphy expired on the 6th day of November, 1893, but that said Murphy contested the election held on said date, and retained possession of all the property of said office, and refused to deliver the samé, and was the de facto treasurer of said city until the 19th day of December, 1893, when the said Murphy resigned all his right, title, and interest to said office. * * * That on and between the 30th day of April, 1893, and the 7th day of November, 1893, the said S. F. Murphy received various sums of money as such
The defendants, by their answer, among other things, “deny that said S. F. Murphy continued to act by virtue of his said election until the 19th day of December, 1893, or at any time after the 6th day of November, 1893, at which time his said term of office expired, and he succeeded himself as the alleged de facto treasurer of said Baker City; admit that the term of office of the said S. F. Murphy expired on the 6th day of November, 1893, but deny- any knowledge or information as to whether Murphy contested the election held on said date; admit that the said Murphy retained possession of all the property of said office, and refused to deliver the same, and aver his retention of said property and his refusal to deliver the same was based upon a valid claim that he was at said time (November 6, 1893) elected his own successor in said office”; and “admit that the said S. F. Murphy was the de facto treasurer of said city, at least, if not the duly elected treasurer, on and between the 7th day of November, 1893, and the 19th day of December, 1893; and defendants aver the fact to be that said plaintiff, Baker City, its mayor, and common council, acknowledged said Murphy and held him out to the world and these defendants as its duly elected, qualified, and acting treasurer on and between said dates, and as his own successor of, in, and
This recital of the pleadings is sufficient for a fair understanding of the questions arising thereunder. The bill of exceptions does not disclose whether any evidence was offered to show that Murphy was re-elected' as city treasurer November 6, 1893, or that the city or its authorities ever subsequently treated or dealt with him as having entered upon a second term; it does disclose evidence, however, tending to show that on November 4, 1893, he filed his official report, which was referred back to him by the city council for the purpose of having it made more definite and certain, and was afterwards, in December, 1893, handed to the finance committee, who were charged with the duty of procuring a settlement with him in behalf of the city. In the performance of this duty the committee made demand upon Murphy about December 23, 1893, for the funds then in his hands, and received from him the sum of $1,025 m money and $20 in warrants. The balance he refused to pay. Subsequently his successor, J. W. Wisdom, who was appointed treasurer December 19, 1893, made a like demand upon him in January, 1894, but payment was refused. The evidence further tends to show that, prior to November 6, 1893, Murphy received most, if not all, the funds alleged to have been misappropriated, and there is some evidence tending to show that he had the larger portion of it on hand at that date, and subsequent thereto, and some of it as late as December 16, 1893. A trial being had before a jury resulted in a verdict and judgment in favor of plaintiff for the amount ■demanded.
This record, together with the instructions of the court to the jury, present the question whether the sureties upon the official bond of a public officer elected for a term of one year, under a city charter providing that he
It is a well-settled rule of law, recognized generally, if not by all the authorities, that bonds or obligations given to secure the performance of official duties are to be construed with reference to the term for which the incumbent is elected or appointed; and it is equally well settled that
In the State constitution (Art. XV, § 1), it is provided that “All officers — except members of the legislative assembly — shall hold their offices until their successors are
Can it be said, then, that the treasurer’s term of office had come to an end on the 6th day of November, 1893?
In State v. Sullivan, 45 Minn. 309 (11 L. R. A. 272, 22 Am. St. Rep. 729, 47 N. W. 802), it is held, that “the incumbent of an office, the term of which is for a specified period, ‘and until his successor is elected and qualified,’ is entitled to retain the office after the lapse of the specified period, in the event of the election of another person to succeed him who is ineligible.” See also, in support of this doctrine, State v. Benedict, 15 Minn. 198; and People v. Tilton, 37 Cal. 614. And if no vacancy occurs the incumbent’s term must be continuous. In State v. Howe, 25 Ohio St. 597 (18 Am. Rep. 321), it is held that an incumbent so holding over after the technical term is in office de jure; but it was there thought that the time intervening between the expiration of the period fixed by the statute and the election and qualification of a successor was not a part of the preceding term, and that the holding over was pro tempore. In other cases it is held that the holding over is but an occupancy of that proportion of the successor’s term. See Riddel v. School District, 15 Kan. 170. One thing, however, is palpably manifest, that the right to hold over is by virtue of the previous appointment or election and qualification;' it is a right accorded by statutes regulating the tenure of office. The holding does not come to an end on the day of the expiration of the statutory period, unless there comes a duly elected and qualified .officer to cut it off, or unless his recognized successor is inducted into the office. In one sense, the holding over is pro tempore, because the time of the holding is dependent upon the election or appointment of a successor; and in another it may be considered as the occupancy of a successor’s term, which is shortened by that length of time. But the holding for the technical term and the holding over is a recognized right arising from one
Nor is King County v. Ferry, 5 Wash. 536 (19 L. R. A. 500, 34 Am. St. Rep. 880, 33 Pac. 538), opposed to this view. There the legislature enlarged or extended the term after the execution of the bond. This was held, and correctly, too, to be an impairment of the sureties’ con
Many authorities are cited by counsel for appellant, of which Chelmsford Company v. Demarest, 7 Gray, 1, is the leading case, in support of the contention that the sureties are not held beyond the particular term. But it will be found, upon an examination of these authorities, that they nearly all consist of cases where the incumbents have been re-elected or re-appointed to the same office, and the authorities have permitted them to continue in office without again qualifying. In such a case it is the duty of the authorities to require the incumbent to requalify, and upon his failure or refusal to comply with the requirement to declare the office vacant, failing in which the
Objections were made by defendants at the trial to the introduction of all the testimony, as it was offered, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and it is contended that the complaint is faulty in that it contains no direct allegation that the defendant was not elected his own successor. If tested by a demurrer, we are not sure but this would have been a vital objection: Thompson v. State, 37 Miss. 522. But the defendants have answered over, and the objection is taken for the first time at the trial. In such a case the pleadings will receive a liberal construction, to the end that the case may be permitted to go to the jury upon the merits. Thayer, J., in Specht v. Allen, 12 Or. 122 (6 Pac. 494), says, “that a party in such a case should be compelled to. resort to a motion for judgment notwithstanding the verdict, in case one were to be rendered against him, as the party interposing the pleading ought, when it had not been demurred to, to be entitled to the presumption a verdict in his favor would afford.’'
Affirmed.