18 Haw. 523 | Haw. | 1908
Lead Opinion
' OPINION OF THE COURT BY
This was an action on the official bond of Edward Vivian Richardson, a clerk in the burean of water works. Judgment was given against the principal and sureties, and the sureties bring a bill of exceptions of which we find it necessary to consider only those relating to their liability.
* There is no statute creating the office of clerk in the bureau of water works nor defining his duties, but the appointment was made in pursuance of an appropriation for “Salary of Clerk” under the head “Department of Public Works” and subhead “Bureau of Water Works.” The superintendent of public works appointed Richardson as clerk and, in accordance
R. L. Sec. 555 provides: “The said superintendent shall appoint some discreet and capable person, to be superintendent of waterworks, whose duty it shall be to keep the conduits or pipes for the conveyance of water in repair; collect all water rates from ships and persons in Honolulu, or its vicinity, and perform such other duties in connection therewith as the said superintendent of public works may prescribe.”
Richardson was entrusted with the collection of water rates and failed to account for a considerable sum.
The rule is well established that sureties on an official bond are liable only for sxich money as is paid their principal strictly in his official capacity. Thus they are not liable for xvater rates collected by a superintendent of water works, whose express authority was conferred subsequent to the execution of the bond, either upon the theory that his duties were implied from his title or that such collection must have been referred to in the undertaking that he should pay over all moneys that might-come into his hands as such superintendent. City of Lafayette v. James, 92 Ind. 240. They are not liable for moneys payable by statute to a prison agent but paid to and embezzled b) his clerk, Hulin v. People, 31 Mich. 323. See also Scott v. State, 46 Ind. 203; Mahaska County v. Ruan, 45 Ia. 328.
If it is desired to hold sureties in cases like these, the bond of the official should cover moneys received by color of his office as well as by law. Thomas v. Connelly, 104 N. C. 342.
In the present instance this court overruled a demurrer to the indictment of the clerk for -embezzlement on the ground that he could be guilty if charged with the safe keeping, transfer or disbursement of the money by regulation or appointment as well as by law. R. L. Sec/ 2966. Territory v. Richardson,
The exceptions of the sureties are sustained and the judgment being joint a new trial is ordered.
Dissenting Opinion
DISSENTING OPINION OP
I dissent. The duties of the clerk of the bureau of water works, for the faithful performance of which the bond was given, include, in the absence of any statute prescribing his duties, assisting the superintendent in collecting water rates as well as in the performance of any other duties imposed by statute upon the superintendent and this, T think, must have been contemplated by the sureties in making their contract of surety-ship. If this bond is insufficient to hold the sureties for the reason that the statute'does not prescribe the clerk’s duties then no bond would avail which is intended to secure his faithful performance of his duties as clerk, and the statute, See. 116