52 Kan. 622 | Kan. | 1894
This was an action by the board of county commissioners of Graham county, in which they seek to recover upon the official bond executed by B. Van Slyck, as county clerk, and Jerome Shoup and William Wells, as sureties thereon. In the petition, it is alleged that Van Slyck was duly elected county clerk in November, 1885, and that he duly qualified and entered upon the duties of the office on January 11, 1886. It is then averred that he has received various amounts as fees for official services of which he failed and neglected to keep an account or present a statement of the same to the board of county commissioners, as the law requires, and that these fees have never at any time been deducted from the salary allowed the county clerk, nor from any quarterly installment of his salary, as the statute requires. It is alleged that, on four different occasions, he received different sums of money as statutory fees for services in and about the sale and transfer of school lands, namely: $37.75, on April 2,1887; $63.70, on July 2,1887; $25.50, on January 3, 1888; and $27.90, on October 1, 1888. It is then alleged that, at various times from January 11, 1886, to January 9, 1888, he collected as transfer fees for entering various conveyances of lands and town lots the aggregate sum of $91.80. These several amounts are set forth in separate counts of the petition, and it is averred that, on December 19, 1892, the county attorney made a demand in writing for the return and payment of the same, which was refused, and in each count there is a demand that the court in rendering judgment shall add 100 per cent, as a penalty to the amount of recovery, and also a fee of $25 to the county attorney for the prosecution of the action. Defendants demurred to the petition of the plaintiff, and, among other grounds, alleged that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court, and, the plaintiff electing to stand upon its petition, it was
Upon the first question, there is little room for discussion or interpretation. The county clerk is allowed a fixed salary, graduated according to the population of the county, and the statute prescribes that such salary is allowed as full compensation for all services by law required to be performed by him. Originally, the compensation of county clerks was derived from fees alone, which they were authorized to collect for their services, and they were permitted to retain all fees earned and collected; but, in 1875, the policy of the state was changed in this respect, as far as practicable, when it was enacted that the county clerk should be allowed a fixed salary, to be paid by the county. (Laws of 1875, ch. 96.) To carry out this policy and statutory provision, the county clerk was required to keep an account of the fees collected, in a book to be provided for that purpose, showing the amount charged, the amount received, from whom, for what purpose, and the date thereof. Another requirement was, that he should present to the board of county commissioners a quarterly statement, under oath, of the amount thus received by him during the preceding quarter, together with the amount of fees charged and which were due and unpaid, and that the same should be filed with the register of deeds. Another section fixes the salary of the county clerk in accordance with the population of the county, and provides that such salary should be paid “as full compensation,” and that the same should “be in full for all the services by law required to be performed in their respective offices whatsoever.” It was further provided, that the salaries should be paid in quarterly installments, upon the order of the county commissioners; but it was provided “that
“The bond does not give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffer by reason of such wrongs or delicts; and while the statute cited by plaintiff operates to bar every action brought upon the bond to enforce a cause of action which accrued more than five years prior to the commencement of the action, yet such statute does not operate to suspend the operation of the other statutes of limitation, or to continue in force or revive a cause of action which had already been barred by some one of the other statutes of limitation. Whenever a cause of action is barred by any statute of limitations, the right to maintain an action therefor upon a bond which simply operates as a security for the same thing must necessarily cease to exist.”
(See, also, The State v. Conway, 18 Ohio, 235; The State v. Blake, 2 Ohio St. 147; The State v. Newman, 2 id. 567; Mount
Even if a demand had been necessary, it should have been made within a reasonable time, and there being no good reason for- delay the cause of action must have accrued more than three years before its commencement. (A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kas. 629; Bauserman v. Charlott, 46 id. 480; same case, 50 id. 794; Rork v. Comm’rs of Douglas Co., 46 id. 175.)
In any view of the case the action is barred, and hence the ruling and judgment of the court must be affirmed.