9 Wash. 229 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— This is an action upon the alleged official bond of appellant, S. G. Allen, as prosecuting attorney of Spokane county, joining the sureties in said bond with their principal as parties defendant.
At the general election held in Spokane county on November 1, 1890, Allen was voted for and declared elected to the office of prosecuting attorney for the county of Spokane. On January 10, 1891, he qualified and gave the bond sued upon, and entered upon the discharge of his official duties. The pertinent condition of the bond was as follows:
“If said S. G. Allen shall well and truly perform all the duties required of him by law as prosecuting attorney aforesaid, and shall pay over any and all moneys that may come into his hands as such, then this obligation shall be void; otherwise of full force and effect."
The disposition we are compelled to make of this case renders it unnecessary to discuss the first technical objection made by the appellant, viz., that the complaint does not state a cause of action, for the reason that it does not appear affirmatively that the delinquent taxes described were taxes collected on real estate instead of personal property. We do not think there is any merit in the contention of appellant that there was no such officer, at the time the bond was given, as prosecuting attorney of the county. Outside of the facts in this case, which show that Allen was elected as prosecuting attorney for Spokane county, and gave his bond as prosecuting attorney for said county, we think, considering the provisions of the statute with relation to the provisions of the constitution, that the office of county attorney is identical with that of prosecuting attorney.
We have examined with attention and pleasure the'many
Nor' can we sustain the contention that it was the intention of the legislature that the attorney’s fees provided for in the collection of delinquent taxes should be appropriated by the county attorney as compensation for duties extrinsic to the office. Sec. 25 of art. 2 of the constitution provides that the compensation of any public officer shall not be increased or diminished during his term of office; and § 8 of art. IT provides that the legislature shall fix the compensation by salary of all county officers except certain officers, which exceptions do not embrace the office in question, and provides again that the salary of any county, city, town or municipal officer shall not be increased or diminished after his election; and the legislature at its next session after the adoption of the constitution proceeded to carry these provisions of the constitution into effect by fixing the salaries of the county officers, including that of the county attorney.
It would seem that giving a plain interpretation to the language of the constitution, twice expressed, would be conclusive of this proposition; but appellant cites this court to one of its own decisions, viz., State, ex rel. Seattle, v. Carson, 6 Wash. 250 (33 Pac. 428), in support of his con
But the responsibility of the bondsmen, as we have before intimated, rests upon entirely different grounds. It
“The contract entered into by the sureties is ordinarily to be construed by reference to that law, and that only, which was in effect at the time their contract was made and which they then had in contemplation. . . . As a rule the sureties upon an official bond can be held liable for the faithful performance of those duties only which adhered or were germane to the office at the time their undertaking was entered into, and not for other and different duties added to the office after the execution of the bond. Where the bond is given to secure the faithful execution of a given office and, after the execution of the bond, the whole nature of the office is changed, the bond ceases to be obligatory, because the office is no longer the same within the meaning of the bond. ’ ’
In King County v. Ferry, 5 Wash. 536 (32 Pac. 538), this court held that where the legislature had extended the term of office of an officer beyond the limit fixed by law at the time of his election and qualification, the sureties upon
“As a general rule the sureties on an official bond are liable for the faithful performance of all duties imposed upon such officer, whether by laws enacted previous or subsequent to the execution of the bond, which properly belonged to and come within the scope of the particular office. They are not, however, liable for after imposed duties which cannot be presumed to have entered into the contemplation of the parties at the time the bond was executed.”
Assuming the correctness of the law thus announced, it seems to us unreasonable to presume that the sureties could have contemplated the imposing of these absolutely distinct duties upon the prosecuting attorney, which not only did not properly belong to and come within the scope of his office, but which had by the settled policy of the law for many years been invested in other officers.
Anders, Scott and Stiles, JJ., concur.
Dissenting Opinion
(dissenting). — One of the duties of the prosecuting attorney under the law in force at the time the bond in question was executed was to prosecute suits in favor of the county, and as incident to that power to receive payment before suit, and pay over the moneys so received to the county. This being so, I think that the legislation by which it was made his duty to collect taxes due the county by suit, and as incident thereto, to receive them for the county before suit, if offered, was germane to his duties under the law at the time the bond was executed. For this reason such legislation did not confer such new duties as would relieve his bondsmen of responsibility in regard thereto. The judgment should be affirmed.