42 W. Va. 178 | W. Va. | 1896
On the 7th day of May, 1894, the board of education of Glade district, of the county of Webster, obtained a judgment in the Circuit Court of Braxton county on the general bond of H. W. Bader, former sheriff, against him and his sureties, for the sum of one thousand seven hundred and five dollars and seventy four cents, due on the teachers’ fund, and two thousand one hundred seventy four dollars and sixteen cents, due on the building fund.
The first error assigned on the writ of error obtained to this Court is as follows, to wit: “First. The court erred in overruling the motion of petitioners to quash notice, because this proceeding is upon the general bond of said Bader as sheriff; no proceeding having been had on the special school bond required by law to be given, and no excuse given or averred for not so proceeding upon such special bond.”
This at once presents the question mooted, but not decided, in the case of State v. Hill, 17 W. Va. 452, as to whether, as the law was at the time of the execution of the bond now in controversy, the sureties on the general bond of the sheriff would be liable for school taxes collected under and by virtue of his special bond given to secure such school taxes.
The sheriff was elected October 12, 1880, and his term of office began January 1, 1881, and on the 1st day of November, 1880, he gave his general bond as such sheriff, in the penalty of twenty thousand dollars. The law governing the case is section 46, chapter 77, Acts 1877, and is in these words, to wit: “The sheriff'or collector of the county shall receive, collect and disburse all school moneys for the several districts and independent districts therein, both that levied by said districts and that distributed thereto by the state. He shall be required by the county court to give in addition to his bond as collector of the state and county taxes a special bond with approved security in a penalty equal to double the amount of school money -which will
We conclude, therefore, that the sureties on the general bond are not liable for his default properly coming under his special bond. This conclusion is in harmony with the case of State v. Hill et al., cited, and in accord with Anderson v. Thompson, 10 Bush, 132, and Board v. Ehlers, 45 Wis. 281. In the latter case it is said: “The general rule is.that where an officer is required to perform a dutyj'special in its nature, and to give a special bond for its faithful performance, no liability therefor attaches to his general bondsmen, in the absence of any declaration that they shall also be liable.” Not only is such declaration wanting in this case, but, explicitly, the general bond is limited to the state and county taxes; and the special bond, to the school taxes. The sureties are entitled to have their contracts construed in accordance with their legal undertakings, strictly. State v. Enslow (decided at this term) 41 W. Va. 744 (24 S. E. 679); Poling v. Maddox 41 W. Va. 779 (24 S. E. 999).
The judgment is reversed, the motion to quash sustained, and the ease dismissed.