22 Haw. 272 | Haw. | 1914
OPINION OF THE COURT BY
The plaintiff commenced this action against the defendant Purdy as principal and The United States Fidelity & Guaranty Company of Baltimore, Maryland, as surety, upon two official bonds given under the provisions of Act 39, Session Laws 1905, known as the County Act. The bonds were executed in the form prescribed in section 25 of said act, one approved by the circuit judge of the fourth circuit on the second day of January, 1911, and the other approved January 6, 1913. In each the conditions are stated as follows: “Now Therefore, if the said bounden William N. Purdy shall faithfully perform all the duties of his said office as prescribed by law; shall safely keep all moneys which may come into his possession by virtue of his
This case has been ably presented by the respective parties by written briefs and oral arguments. A large number of authorities have been cited on behalf of the respective parties, it being urged on behalf of the defendant surety company that the acts of the defendant Purdy complained of, were not done by virtue of office, but under color of office, and therefore, the same did not constitute breaches of the bonds sued on. The questions raised call for an inquiry into the powers and duties of county supervisors. The defendant contends that county supervisors can only act conjointly, or as a board; that an individual supervisor cannot sell county property, nor do any act that will bind the county, and therefore the acts of defendant Purdy in question do not constitute breaches of the conditions of the said bonds for wdiich the defendant surety is liable; that sureties are favored in the law, and the conditions of their undertaking strictly construed in their favor, their liabilities never being extended beyond the letter of their contracts. Many decisions have been cited in support of defendant’s contentions. A careful consideration of the authorities shows that they are sus
The important questions in the case at bar are:
Was the defendant Purdy acting by virtue of his office, and, by his conduct, and acts, shown in the complaint and agreed facts, faithfully performing, or failing to faithfully perforin, his duties as a supervisor? To determine these questions we must look to the statutes prescribing the powers and duties of county supervisors, found in Act 39, Session Laws 1905. Chapter 4 of that act provides, inter alia: “Each County shall have the following powers * * *: To purchase and otherwise acquire, take on lease and hold real and personal property ■within its defined boundaries and to manage and dispose of the same as the interests of the inhabitants thereof may rquire; * * * to make contracts and do all things necessary and proper to carry into execution the foregoing powers and all other powers vésted in said County or in any officer thereof.” In chapter 14 of said Act it is provided: “The Board of Supervisors of each County shall have general supervision and control of all the public affairs of their respective Counties and the supervision of all subordinate officers, and, without prejudice to the generality of the foregoing powers, shall have the following specific powers: * * * To authorize and supervise the expenditure of all funds belonging to the County; * * * A majority of the members of the Board of Supervisors shall constitute a quorum for the transaction of business, but in order to pass any ordinance or to order the disposal of any property of the County, * * * it shall be necessary that such ordinance or order shall receive the approval of a majority of the members of the Board.” It is seen that the general powers of the supervisors are exceedingly broad and the duties devolving upon them are numerous, embracing the conduct, control and supervision of all of the business affairs of the county, as well as the supervision of all subordinate officers, while the special power and duty of supervising all expenditures of the county is placed upon them.
County supervisors act in legislative and administrative capacities. In the enactment of ordinances they are exercising judgment, but in doing the acts complained of in this case, it is not a question of judgment, or of error of judgment, but failure to'perform positive duties enjoined by law. The ultimate facts shown by the complaint and agreed statement of facts are sufficient to establish the failure of the defendant Purdy to perform positive duties resting upon him by virtue of his office. It neither requires logic nor extended argument to show that where an officer is acting in his official capacity and fails to perform a duty resting upon him, that he is not faithfully performing his duty.
That the board had determined to sell crushed rock in the Hamakua district, and authorized defendant Purdy as a committee of one to do so, is a reasonable inference from the stipulated facts' Power to sell carried with it power to receive the purchase money. The statutes containing no provision forbidding the purchaser to pay it to the board, or to‘a committee of the board, such collection was within the line of the duty of defendant Purdy. Having received the purchase money, it was his duty, by virtue of his office, to pay it into the county treasury. He was acting ministerially in making the sale and re
The case at bar is distinguishable from that of People v. Pennock, 60 N. Y. 421. In that case it was held that the stipu
It is contended on behalf of the appellant that the judgment is not supported by the pleadings and the evidence. The theory upon which the declaration seems to have been drafted is that the money received by defendant Purdy was received by virtue of his office, although the acts charged are alleged to have been done by “virtue and color of his office” of supervisor, while acting and claiming to act as supervisor. If the declaration be defective, which it is not necessary to decide, the defects were cured by the appellant by stipulating the facts, and trying the case without objection to the sufficiency of the complaint, and by the judgment. The complaint did not allege the custom under which each supervisor acted in the matter of selling crushed rock and looking after the pay-rolls in the district from which he was elected. It is too late now to raise that question.
It is contended on behalf of the county, appellee, that the defendant being a surety company must be regarded as an insurer, the contract strictly construed against it, and many authorities are cited to that effect. Suffice it to say that it does not appear in the record that the appellant, as surety, was paid any fee or fees for executing the said bonds, hence, it is unnecessary to pass upon the question.
The exceptions are overruled with costs to the appellee.