58 Neb. 557 | Neb. | 1899
In 1887 there was passed and approved an act of the legislature providing for the appointment of a state inspector of oils, defining his duties, fixing his fees, and prescribing penalties. (Compiled Statutes 1887, ch. 64, art. 2.) In March, 1893, Lozein F. Hilton was, under the authority of this statute, appointed state inspector of oils. He accepted the appointment and, in compliance with section 4 of the act, executed to the state of Nebraska a bond conditioned as follows: “The condition of this bond is such, that whereas the above bounden, Lozein F. Hilton, has been duly appointed by the governor of the state of Nebraska to the office of state inspector of oils:' Now, therefore, if the said Lozein F. Hilton shall well and faithfully perform the duties of said office as imposed upon him by law in that behalf, then this obligation to be void; otherwise to be and remain in full force and effect.” The sureties upon this obligation were Richard Blaco, W. C. Walton, E. A. Stewart, and John A. McKeen. On 3 anuary 31, 1895, Hilton retired from office without having accounted for the sum of $5,622.56, which, it is claimed, was received by him in his official capacity. This action was thereupon instituted against him and his sureties to recover the alleged shortage. u The cause was tried to a jury, and the trial resulted in a verdict against all of the defendants for the full amount claimed in the petition. A motion for a new trial was overruled and judgment rendered on the verdict. The sureties prosecute error, making Hilton a party defendant.
The first ground upon which it is claimed there should be a reversal of the judgment in favor of the state is that the law creating the office of state inspector of oils is unconstitutional, and that Hilton’s official bond is therefore void. We need not in this action concern ourselves with the validity of the law. Whether it is void or valid is altogether immaterial. Under its authority Hilton accepted a commission from the governor, and for nearly
Another defense to the action relied on in the trial court was that a large part of the fees collected by Hilton was for the inspection of gasoline, and that such inspection was not required nor contemplated by the statute. We think it was. Section 1 of the act is as follows: (Compiled Statutes 1887, ch. 61. art. 2.) “All mineral or petroleum oil, or any oil, fluid, or substance which is a product of petroleum or into which petroleum or any product of petroleum enters or is found as a constituent element, whether manufactured in this state or not, shall be inspected as provided in this act before being offered for sale for consumption for illuminating purposes in the state.” Section 11 distinctly recognizes gasoline as a product of petroleum; and the evidence conclusively shows that it is such product and that it is used to some extent as an illuminant. What, under the law, is the duty of the state inspector of oils? By section 2 he is required to “examine and test the quality of all such oils offered for sale” and stamp upon the package, barrel, or cask the result of his inspection. The words “such oils” refer, of course, to the oils mentioned in the preceding section. It is also provided in section 2 that the inspector, or his deputies, may enter upon any premises and inspect
But it is insisted that as no quality or grade of gasoline will bear the prescribed test, the legislature could not have contemplated its inspection. This argument has weight, but it is not conclusive. The design of the law, as Ave interpret it, was not merely to prescribe a test for those products of petroleum which might or might not, according to their quality, be dangerously inflammable, but rather to require an effective inspection of every product of petroleum kept, or intended, for sale for illuminating purposes. An owner of gasoline kept or intended for sale as an illuminating oil was, under the act of 1887, legally bound to submit it for inspection,, and he was also bound to pay the inspector the statutory fees for the services rendered. Such fees, then, were received for the performance of official acts. They Avere received in an official capacity and are undoubtedly within the purview of the inspector’s bond.
It is said, hoAvever, that Hilton did not in fact subject gasoline to the Foster test, and that he usually failed to brand the vessels in which it was contained. It is true that the Foster test was not applied, and that frequently —perhaps most frequently — the inspector’s brand was not affixed by the hand of either himself or a deputy. But this surely is no answer to an action on the bond. How can the irregularity of the-inspection concern the sureties? The person called upon to pay fees might, indeed, demand the effective test for Avhich the law provides, but if. he Avaive the test and consent that his oil may be marked “Rejected for illuminating purposes,” no one else can justly complain. The object of the statute was accomplished and the interests of the public prop
The balance in the hands of Hilton on January 31,1895, clearly belonged to the state, and the laAV imposed upon him the duty to pay it over to the state treasurer. Whether he has so paid it is one of the questions upon Avhich the parties are not agreed. The sureties assert that he has, predicating their assertion on the general presumption that public officers execute Avith fidelity the duties with which they are charged. This presumption is a mere arbitrary rule of law. It possesses no inherent probative force, and Avhen met by opposing evidence is entirely destroyed. In this case it was met by opposing proof. When Hilton went out of office he left behind him a record in his own handAvriting which shows that he was then indebted to the state in the sum of |5,622.56. This record evidences the state of Hilton’s account at the last moment of his official life, and, being an admission against interest, it has evidential value apart from the presumption that the entries are true. Besides, the answer impliedly admits that all the moneys received for the inspection of gasoline were not lawfully disbursed.
Another and final reason assigned for a reversal of the judgment is that the clerk of the district court failed, in recording the judgment, to certify that Hilton was principal and that the other defendants were sureties on the bond in suit. Section 511 of the Code of Civil Procedure requires such certification, and it has been held in several cases that a failure to comply with its provisions is reversible error. (Van Etten v. Kosters, 48 Neb. 152; Kroncke v. Madsen, 56 Neb. 609, 77 N. W. Rep. 202; Maxwell v. Home Fire Ins. Co., 57 Neb. 207.) The statute, while enjoining a duty on the clerk, undoubtedly contemplates action by the court. The judgment is reversed and the cause remanded with direction to the district court to render a judgment on the verdict and certify therein that Hilton is principal and that the plaintiffs in error are sureties on the bond.
Reversed and remanded.