1 Dakota 403 | Supreme Court Of The Territory Of Dakota | 1877
The parties in their pleadings do not differ materially in their statement of the facts in this case, and they have presented them in such a way as to have the question of defendants’ liability determined on demurrer.
It is not my purpose to notice all the points made in the briefs of counsel, or in the order in which they are furnished, but only such as I deem essential to the determination of the
It must further be borne in mind that at the date of the execution of said bond there was no provision of statute requiring the judge of probate, as such officer, to give any other or
After a careful examination of all the statutes passed at that same session relating to matters properly cognizable in a probate court, I fail to find a solitary provision making the judge of that court responsible for any money or property, or any mention of his liability on his official bond. Turning again to section 25, chapter 28, laws of 1862, we find the following provision: “ They,” the' several judges of probate, in their capacity as county treasurers ex-officio, “ shall report the amount of county funds in their hands to the board of county commissioners of their respective counties at their annual meeting, on the first Monday in June of each year, and as often thereafter as demanded by them, and disburse the same subject to their order.”
Now can it be contended with,any show of reason that the Legislature intended that the bond provided for in section 22, same act, should cover only acts of malfeasance or misfeasance in his office as judge of the probate court, and leave the public revenue coming into his hands as county treasurer wholly unsecured. He was made ex-officio county treasurer— that is, by virtue of his office as judge of probate, by virtue of his election to that office alone, was he authorized and empowered to perform these additional duties and receive therefor the emoluments provided by law. There was no provision for a separate qualification or the execution of a separate bond. When he had qualified as judge of probate, and exe
Throughout years of subsequent legislation, and until the Act of January 15th, 1875, the provisions of said sections 23 and 25 remained unchanged (with but one exception which I shall presently refer to) and* in full force. This subsequent legislation included several acts relating to the revenue, covering the acts and responsibilities of the county treasurer, with numerous allusions to his official bond.
I am clear in the opinion, that under the law as it then stood, when the bond in this suit was executed, the judge of probate was required to execute but one bond, and according to the rules of reasonable construction, and the intent of the Legislature gathered from the wording of the statute and all kindred enactments, that bond covered his duties as county treasurer, and on it he and his sureties must be held liable for any violation by him of the provisions of the Revenue law. I think but little light would be thrown on this question by an examination of the authorities cited, as the decision of most of the 'cases to which the attention of this court has been called, turned upon the peculiar phraseology of the statutes which the courts were called upon to construe.
This prepares us for an inquiry into the objection that the penalty of the bond in suit, is in excess of the statutory requirement.
And here again I must ask to be excused from following counsel through all the enchanting labyrinths of legal lore, which they in their able arguments have explored, as I think there is no difficulty whatever in finding a solution of the question in the statute. As above stated the statutes of 1862, providing for the bond of the judge of probate remained unchanged, with one exception, until the Act of January 15,1875.
Now that being the bond, the board of county commissioners is authorized and-empowered to require an additional bond in such sum as they may direct. And here it may be claimed that this can only be required after the original bond has been executed. But this, I think, would be a very narrow construction. The law does not require vain things, an^ it would be worse than folly to hold that the treasurer must first execute a bond in the penal sum of four thousand dollars, enter upon the discharge of the duties of his office, become possessed of money and property in value, it may be ten times in excess of' the penalty in the bond, before he can be called upon to give the additional .security provided for the protection of the very same funds and property which he already holds and controls. Such a construction might defeat the very object and purpose of this enactment.
I find in this provision ample authority given the board to increase the penalty in the treasurer’s bond, or, to speak more accurately, the bond of the judge of probate, in view of his increased liability as ex officio coxmty treasurer, over and above $4,000.00, and it matters not, in contemplation of this statute, whether the security furnished the county is in one, two or three separate instruments, so that the board does not abuse its discretion, and require an unreasonable bond, of which there is no complaint in this case.
This view of the case disposes of the point that the bond was not a voluntary bond, but extorted under color of office.
The rule is well settled that upon the argument of a demurrer to the answer, the defendant may attack the complaint upon the grounds that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, and if it appears that the objections thus raised are well taken, the defendant will be entitled to judgment, notwithstanding the defects in the answer. (2 Wait’s Practice, 466, and authorities cited.)
Under this rule, counsel for defendants have urged various objections to the complaint, the first of which is that there is no breach of the bond sufficiently alleged. The allegation in the complaint is as follows:
“ That thereafter, to-wit: on or about the 22d day of January, 1875, defendant R. J. Simonsen resigned his said office to the board of county commissioners of said county, who*429 thereupon appointed as his successor in said office, William Shriner; that said William Shriner has long since filed his bond, properly approved as the law directs, and entered upon the discharge of the duties of said office, but that said R. J. Simonsen has failed and refused, and still fails and refuses to account for said money, books, records, papers'and documents, or any part thereof, or to deliver the same to his successor in office, or to any other person or persons authorized by law to receive the same.”
The law in force at the time of the alleged breach (§ 36, ch. 4, laws 1868-9) required the county treasurer to render his account to, and settle with, the county commissioners, at the time required by law, and pay into the county treasury any balance which may be due the county. The commissioners might require the treasurer to settle with them at any time, but he was absolutely required to make full and complete settlements at three particularly designated times; these were on the first Mondays of May and October of each year, (§ 80, ch. 25, law’s 1868-9) and a final one on going out of office, when it is made his duty to deliver to his successor in office all public moneys, books, accounts, papers .and documents in bis possession. (§ 98, ibid.)
What it might have been necessary for the commissioners to have done, and the complaint to liáve stated, different, had this case originated in one of the semi-annual settlements, or one made or refused on demand of the board, or whether the requirements of the statutes are the same in all cases, it is unnecessary here to discuss. This case is one where the treasurer, on going out of office, has failed and refused to settle and account.
There are three acts of omission on the part of the treasurer, specifically mentioned in the statute, (§ 99; ibid) which constitute a breach of his official bond, for any one of which upon its occurrence, suit may be brought. These are: 1, If he shall fail to make return; 2, Fail to make settlement; or, 3, Fail to pay over all money with which he may stand charged, at the time and in the manner prescribed by law.
Section 37, chapter 4, laws 1868-9 provides that “if any person thus chargeable, shall neglect or refuse to render true accounts, or settle as aforesaid, the county commissioners shall adjust the accounts of such delinquent, according to the best information they can obtain, and ascertain the balance due the county, and order suit to be brought in the name of the county therefor.” This provision makes it the imperative duty of the board to ascertain the balance due the county and order suit brought. How are they to ascertain the balance due, when the person chargeable neglects or refuses to render true accounts? “According to the lest information they can obtain.” Can it be claimed that that information, the source from which it was obtained, the basis on which the computation or calculation was made, with copies of all record entries, papers, vouchers, &c., if any, used or examined by the board in adjusting the accounts, should be alleged and set out in the complaint? Certainly not. The words, “ facts constituting a cause of action,” as used in our Code of Civil Procedure, mean those facts which the evidence upon the trial will.prove, and not the evidence which will be required to prove the existence of the facts. Every fact which the plaintiff must prove, to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred and set forth according to their legal effect and operation, and not the evidence of those facts, nor arguments, nor inferences, nor matters of law only. It is error to assume that there can be no breach on part of the treasurer
The second point, that there is no allegation in the complaint of any demand upon the treasurer to report the funds in his hands, is not well taken. Upon going out of office it is made his imperative duty to deliver to his successor in office all public moneys, books, accounts, papers, and documents in his possession. This presupposes a return made by him, an adjustment of his accounts, and settlement with the board. He should, at that time, exhibit to the board, without de
We hold that the facts stated in the complaint are sufficient to constitute a cause of action; that the instrument sued on is a valid legal bond, substantially complying with the requirements of the statute, and covering the duties of judge of probate in his capacity as ex-officio county treasurer, and that for the breaches alleged, the principal and his sureties are liable, unless the matters pleaded in the answer are sufficient to constitute a defense.
The conditions of the bond are absolute, and provide that he “ shall well and faithfully and impartially perform the duties and execute the office * * without fraud, deceit or oppression.” These duties are defined by the provisions of the statute, and the performance of them is only well done, faithful and impartial, when in strict compliance with these provisions; and under these provisions and the obligations of his bond, he is bound, not to exercise due care and diligence in the discharge of his duty, but to perform it absolutely, without conditions or exceptions, unless the party can estab
In Greenleaf on Evidence, (2 Vol., § 219,) the learned author, after giving Lord Mansfield’s definition of the phrase, uses the following language: “ Therefore if the loss happened by the wrongful act of a third person, or by an accidental fire, not caused by lightning, * * * the carrier is liable.” Citing Hyde v. Trent & Mersey Nav. Co., 5 T. R., 387, and Forward v. Pittard, 1 T. R., 27. The same doctrine has been held in the case of The Dist. Tp. of Union v. Smith, 39 Iowa, 9.
Accidental fire, therefore, not- caused by lightning, is not “ an irresistable super-human cause,” and will not excuse from the performance of an obligation unless specially so stipulated, or when the.party is bound only to the exercise of reasonable care and diligence, (Ross v. Hatch, 5 Iowa, 149,) and no such facts appearing from the pleadings in this case, these points need not be noticed.
The case of District Township of Taylor v. Morton, 37 Iowa, 550, was an action brought against defendant on his official bond as the treasurer of plaintiff. The law required him to give bond “ conditioned for the faithful performance of his duty,” and the condition'of his bond read, “ if the said Morton, as treasurer, shall faithfully and impartially discharge the duties of said office as required by law,” etc.
The allegation in relation to the loss of the property, was in similar language to the answer in this case, except it was there alleged that the money was stolen; here it was burned. Mr. Chief Justice Beck, in delivering the opinion of the Court, says:
“ His liability rests on the conditions of his bond, and if by them he is required to do an act which, without his fault, becomes impossible on account of anything occurring subsequently to the contract, he will not be released. These rules are applicable to all contracts, and the public interests demand that, at this day, when public funds in such vast amounts are committed to the custody of such an immense*435 number of officers, they should not be relaxed when applied to official bonds. A denial of their application in such cases would serve as an invitation to delinquencies, which are already so frequent as to cause alarm.”
This we deem settled law; and settled too on the highest considerations of public policy, as well as in strict justice to those who by their solemn obligations undertake to answer for the custody and safe keeping of public funds and property. It is the well recognized doctrine of the Supreme Court of the United States, as held in the following cases: The United States v. Prescott, 3 How., 578; The Harriman, 9 Wal., 161; Boyden, v. United States, 13 ibid, 17; The United States v. Thomas, 15 ibid, 337; see, also, Harmony v. Bingham, 12 N. Y., 99; Tompkins v. Dudley, 25 N. Y., 272; The Dist. Tp. of Union v. Smith, supra; Fowler, et. al. v. Bott, et. al., 6 Mass., 63; School Dist. No. 1. v. Dauchey, 25 Conn., 530.
In commenting on the phraseology of the statute requiring the treasurer on going out of office to deliver to his successor in office all public moneys, books, &c., in his possession, much stress has been laid by counsel for defendant on the last three words, “ in his possession.” . And it has been insisted that the property having been destroyed by fire, is not in his possession, and therefore could not be turned over. Neither would it have been any more in his possession had it been stolen, or by him embezzled and transferred to the possession of a guilty confederate. The position is a very lame one. The law presumes the treasurer to have possession of all public funds and property that-may have come into his hands by virtue of his office, and which he has not paid out or disposed of in some manner authorized and prescribed by statute. If he has not the funds or property in his possession, and cannot show that they have been applied and disposed of as directed by law, and can plead no legal excuse for the non-performance of his obligation, then he must answer on Ms bond. Any other rule would be dangerous to community, and open the door to all manner of villainy, by “ encouraging defenses which would so frequently be false and fraudulent.”
There is one other point made by counsel for appellants, which should have been noticed in its proper place.. It is insisted that the words, “ without fraud, deceit, or oppression,” contained in the conditions of the bond, explain the preceding language, and are a limitation on defendant Simon-sen’s liability. This cannot be (admitting this to be words of limitation, which is not at all clear,) unless authorized to be inserted by the statute, which is not claimed in this case. A party assuming the duties and responsibilities of a public official trust, takes it "with all the obligations and liabilities imposed by law, and cannot be permitted to engraft ihto his bond conditions foreign to the statutory provisions for the purpose of limiting the legal obligations imposed. If such language is used it will be treated as surplusage, and advantage cannot be .taken of it for the purpose of avoiding legal liability.
Finding no error in the record, the judgment of the court below sustaining plaintiff’s demurrer to the answer is affirmed and the cause remanded for such other and further proceedings as may be authorized by law.