52 Mo. 122 | Mo. | 1873
delivered the opinion of the court.
This is an action on the bond of Philip H. Murphy as auditor of the City of St. Louis, against the defendants as his sureties. The condition of the bond is as follows, namely: Now if the said Philip H. Murphy shall faithfully perform all the acts and duties required of him in said office by any law of the State of Missouri or ordinance of the City of St. Louis, now existing or hereafter passed, this obligation to be void; otherwise to remain in force. The bond bears date April 5th, 1867. The breach alleged is, that by an ordinance of the said City of St. Louis passed on the 6th day of September, 1864, the auditor is required at the end of each month to pay over to the treasurer of said city, all monies that may remain unpaid on any pay roll appertaining to his office, and that during the years 1868 and 1869 and whilst the said Murphy continued to be such auditor, he the said Murphy, in the discharge of his duties as such auditor, drew from time to time from the treasury of the plaintiff divers large sums of money on the payrolls appertaining to his office, to be paid out during the respective months in which they were so drawn to the persons respectively entitled thereto, and if not so paid the same were, at the end of the months in which they were drawn, to be paid over to the City Treasury according to the ordinance aforesaid; and plaintiff says that of the sums so drawn by said Murphy from said treasury, he during said period drew the sum' — in the aggregate — of $3,075 30-100,’which he failed and refused to pay over to the persons thereto entitled, and which he also failed and refused to pay over to said treasurer at the end of-the month in which it was received or at any other time, and which said sum the said Murphy failed and refused to pay at anytime to plaintiff or to its said treasurer, and the said
The suit was dismissed as to Murphy after he filed his answer. The other defendants, Sickles and Cafferata filed separate answers, which however are the same in substance. These answers deny that there was any breach of the bond as alleged, and for further answer and defense to the action, state that under the laws and ordinances the said auditor was an accounting officer of said city and nothing more, it being his duty to audit and allow accounts and claims against said city and certify the same to the treasurer of said city, and that it was no part of his official duty under said laws and ordinances at the time he executed his said bond or at anytime since, to receive or pay out money belonging to said city, and that they became the sureties of said Murphy with this understanding of his duties as such auditor. That if said auditor was permitted to draw money from the treasury as alleged, it was by reason of the misconduct of plaintiff, and they ought not to be held responsible therefor.
The evidence tended to prove that warrants bad been issued and paid by the treasurer 'at the end of the various months; that.it was the practice of the auditor’s office during the time Murphy held it for the auditor to receive the money from the treasurer on warrants for the pay rolls, and pay the same to the various city officers, and that he failed to pay said moneys to the parties entitled to receive the same on said rolls for the years 1868 and 1869, but converted the same to his own use, and that he failed to pay any of said sums of money to the City Treasurer at the end of the respective months in which he received the same or at any time before or after.
These warrants were drawn by the auditor, countersigned by the comptroller and made payable “to pay roll or order.” It further appeared in evidence that after said Murphy went out of office the practice was changed and warrants were drawn directly in favor of the parties named in the pay roll, and the money paid to them.
This instruction was refused, to which ruling of the court plaintiff excepted.
At the instance of the defendants, the court declared the law to be. That the sureties of the Auditor cannot be held for any deficit or default in regard to moneys of the city in the auditor’s hands, unless it appears affirmatively that such moneys came to the auditor’s possession in his official capacity and under some law of the State-, or some ordinance of the city. These facts not appearing, there is no liability on the sureties shown.
There was a finding and judgment for defendants! A motion for a new trial being overruled, plaintiff' brings the cause to this court by appeal.
The City Charter provides for an auditor and comptroller,, who in addition to the duties prescribed by the act shall perform such other duties as may be prescribed by ordinance, Acts 1867,' Art. 6, See. 10, p.--. By section 3 of the same article, it is made the duty of the City Auditor to prescribe the mode of keeping, stating and rendering all accounts, unless otherwise provided for by ordinance, between the city and any person or body corporate. The following section, 14, makes it the* duty of the City Treasurer to’receive and keep the money of the City and to pay out the same on warrants drawn by the Comptroller and audited by the City Auditor.
An ordinance of the City — 5453, Rev. Ord. 1866, p. 559, made it the duty of the Treasurer to receive and keep all
The contract of the sureties is only for the faithful performance of those trusts that properly and legally belong to his office. (Blair vs. Perpetual Ins. Co., 10 Mo., 560.) The sureties of a public officer whose duties are defined by law, are
■ No law or ordinance constituted- the auditor the agent of the persons named in the pay-roll to receive and disburse the moneys. If he received the money due those persons it was by an unauthorized act of the Treasurer, and not in his official capacity, and it was therefore no breach of the obligatiori entered into by defendants as his sureties. The
The judgment is affirmed.