32 Cal. 145 | Cal. | 1867
Lead Opinion
This action is against the principal and his sureties on the official bond of the County Treasurer of Mendocino County. The appeal is from the judgment, and there being no statement or bill of exceptions, the only questions presented arise on the judgment roll. There was no error in overruling the demurrer to the complaint. A copy of the bond purports to be annexed to the complaint as Schedule A. Said copy does not contain the signature of Morris, the principal. It is claimed that there is no cause of action shown against Morris for the want of his signature, and that, for the same reason, the bond is void as to the sureties. It is unnecessary, however, to determine the effect of the failure of the principal to execute the bond. The complaint distinctly avers the execution of the bond by all the defendants. The defendants, in their answer, have taken issue upon the averments, and the verdict is in favor of the plaintiff on the issues. It must be presumed that the omission of the name of the principal in the copy appended to the complaint is a clerical error. Upon
The facts set forth, we think show, a breach of the condition of the bond and a cause of action. The moneys for which the Treasurer is in default are alleged to belong to the County of Mendocino, and the action is properly brought in the name of the county. The fact that the bond was approved by the County Judge, instead of the Board of Supervisors, is no defense to the action. The liability of the sureties does not depend upon the approval of the bond by the proper officers. (People v. Edwards, 9 Cal. 286; People v. Evans, 29 Cal. 436.) Besides, although the bond appears, to have been approved by the County Judge, there is nothing in the record to show that it was not also approved by the Board of Supervisors. Ho question of this kind appears to have been raised in the Court below.
The action is on the bond for damages resulting from a
It may be that a judgment for coin could be recovered against the principal in a proper suit for the moneys received by him in his fiduciary capacity; but this is not an action of that kind. Morris is sued with his sureties as one of the obligors on the bond only. The bond alone is the basis on which the action rests; and, in a suit upon the bond, all the parties stand upon the «same footing, and are entitled to rest on the terms of the undertaking. The only recovery that can be had on the bond is the damages resulting from the failure of Morris to discharge his duties in the mode prescribed by law; and the damages can only be required to be paid in money generally, according to the terms of the bond. We observe that, in some cases brought before us, the officers approving official bonds have required them to be made payable in coin. This practice seems to be a safe precaution.
All that portion of the transcript after folio sixty-nine, except the notice of appeal, was improperly inserted. It constitutes no part of the record on this appeal.
The judgment of the District Court is modified by striking out all those portions directing payment to be made in coin, and costs are awarded to appellant, except as to that portion of the_ transcript improperly inserted, as indicated in this opinion.
Dissenting Opinion
There is but one point in this case upon which I desire to express an opinion. The point involves the question whether the plaintiff is entitled to a judgment payable in coin only. A majority of my associates are of the opinion that the plaintiff is not entitled to insist upon payment in coin, and the reason given is substantially the same as that given for a like conclusion in Fox v. Minor, ante, 111. My reasons
But first, assuming that the Specific Contract Act is the sole test, and that under its provisions the principal can be made to pay coin but his sureties cannot, I hold that'°he can be made to do so in this action as well as in any other, and I so hold for the reasons which are stated in my opinion in Fox v. Minor. The idea that in this State and under our system of practice, which recognizes no distinction between the forms of actions, certain relief can be obtained by the same party against the same party in one action and not in another, based upon substantially the same state of facts, is new to me. If a plaintiff recovers under our system it is because of the facts which are stated in his complaint and not by reason of the form in which they are stated. As against the principal on the bond in suit, no facts can be stated in another action which are not stated in this, and if the plaintiff is entitled to recover gold at all, or, in any event, it is so entitled upon the facts stated in the present case. This seems to me to be too obvious for argument. If, as my associates hold, the plaintiff is entitled to recover gold as to the principal, but not as to the sureties, there is no difficulty in so adjudging in the present case, and so disposing of the whole matter in one suit. Under our system there is no legal impediment in the way of granting different measures of relief against different defendants if,
Under the rule adopted by my associates in this case the door to the most stupendous frauds is opened, and those who have the collection, custody and disbursement of the public funds, and the sureties upon their official bonds, are invited to enter and divide the spoils. Under it those persons, as contradictory as it may seem, may lawfully do what the law has expressly prohibited under penalty of fine and imprisonment. Under it the Treasurer of State may, upon the expiration of his term of office, or at any other" time, pocket the hundreds of thousands in his vaults, paid by the people of the State in gold coin, as required by law, for the support of the Government, and quietly wait to be sued upon his official bond for its recovery, and when judgment is rendered against him legally satisfy the same in full with the same number of dollars in legal tender notes, making by the transaction a clear profit of a quarter or a half million in gold, according as the Treasury is more or less plethoric. The same is true of every other officer throughout the State who has anything to do with the collection or custody of public moneys. It is true that the law provides that any officer who may change in any way or use in any manner the public funds in his custody, other than as provided by law, shall be deemed guilty of a misdemeanor, and punished by fine and imprisonment. But if he may lawfully do what this Court holds he may in this
Where consequences so absurd follow, it is certainly safe and judicious to look a little further into the matter and see whether the law is really as represented. If it is, the Courts are not responsible for the consequences, however absurd they may be.
It is proper for me to say at the outset that I do not claim that the sureties in this case are affected by the Specific Contract Act, or that the plaintiff is entitled to a judgment in express terms payable in coin, though I see no sufficient reason for not inserting those terms in the judgment. While I claim that the principal is bound by the Specific Contract Act, the same as in the case of Fox v. Minor, I admit that the sureties are not, for they have neither agreed to pay gold, nor have they received the money in a fiduciary capacity, or in any other capacity. The bond in this case does not belong to the same class as the bond in Irwin v. Backus or in Fox v. Minor, and is not therefore within the rule announced in the former case and contented for by me in the latter. What I do claim, however, is that under the laws of this State, as
I do not propose to open the question whether the legislation of this State, to which I am about to refer, is or is not repugnant to the Legal Tender Act, and if so therefore unconstitutional, or whether this Court erred in deciding as it did in the cases to which I am about to refer. All that I propose to do is to show that under the laws of this State, as interpreted in the former decisions of this Court, the defendants in this case cannot discharge the claim of the plaintiff by the payment of legal tender notes, but can only do so by the payment of coin of the United States.
The General Revenue Act, passed on the 17th of May, 1861 (Statutes, 419, Sec. 2), provides that all taxes for State or county purposes “ shall be paid in the legal coin of the United States, or in foreign coin at the value fixed by the laws of the United States,” with a proviso that county taxes levied in accordance with any special Act may be collected in such funds as the special Act may designate.
“ An Act concerning the State revenue,” passed on the 4th of April, 1864 (Statutes 1863-4, p. 364), provides that “ all taxes upon real or personal estate, all poll or other taxes, and all licenses levied, in whole or in part, for the use and benefit of the State, shall be collected and paid into the State Treasury exclusively in the gold and silver coin of the United States, * * * and all dues to the public treasury of the State, or of any county or city, shall be payable and be paid exclusively in the gold and silver coin of the United States.”
This provision of the Act of the 17th of May, 1861, came before this Court in the case of Perry v. Washburn, 20 Cal. 318. The case was an application for a mandamus to compel the defendant, who was Tax Collector of the City and County of San Francisco, to receive from the relator legal tender notes in payment of his taxes, which the defendant claimed were
The Act of the 4th of April, 1864, came before this Court in Ex parte Whipple, on habeas corpus, at the January term, 1866. The case has not been reported. Whipple had been convicted of a violation of the law against gaming, and fined in the sum of one thousand dollars, and ordered to be imprisoned until the fine was paid at the rate of two dollars per day. He had tendered in payment of his fine the requisite sum in United States treasury notes, which had been refused on the ground that the fine was a public “ due ” within the meaning of the Act of the 4th of April, 1864, and therefore could be paid only in gold and silver coin of the United States. Thereupon he sued out a writ of habeas corpus and came before • this Court claiming to be entitled to be discharged from custody by reason of the premises. The Court denied his petition and remanded him, holding that United States treasury notes were not a legal tender in payment of the fine. The opinion of the Court was delivered by Mr. Justice Sawyer, who, among other things, said: “ We also think the fine in question in this case was required by the Act of the 4th of April, 1864, to be paid exclusively in the gold and silver coin of the United States.” So this Court held that the fine was a “ due to the public treasury,” in the language of that Act, and therefore payable only in United States gold and silver coin.
It is obvious from the statutes to which I have referred, that it is and has been the clear intent of the Legislature of this State to save its finances of all kinds from the operation of the Legal Tender Act of the Federal Government, and to
That the two cases to which I have referred are sound I have no doubt. There might be much said in addition to what has been said in those cases, and other cases, involving questions of currency decided by this Court in support of the validity of the legislation of this State and of the soundness of the doctrine announced in those cases, and for which I am now contending; but the question does not possess the interest which it once did, and I forbear further discussion. It is sufficient to say that where there are two or' more kinds of money, either of which is equally lawful and a legal tender for the payment of debts or the discharge of legal claims of any kind, it cannot, in the nature of things, be unlawful for individuals or States to elect in which kind they will transact their business or make and discharge their obligations; and, having elected, there cannot, in the nature of things, be any valid reason why they should not be held to their election ; to hold to a contrary rule would be to offer a premium for Punic faith and give countenance to moral dishonesty. The mere fact that two kinds of money exist in which parties may lawfully perform their promises, of different values in fact, if not in law, necessitates a choice between them, for the minds of contracting parties cannot meet intelligently until a common standard of value in fact has been agreed upon, and no amount of legislation can obviate such necessity. If it is lawful to pay gold it must of necessity be lawful to agree to pay it, and if both be lawful, the Courts may not only lawfully enforce the promise, but a refusal on their part to do so would outrage justice and shock the moral sense of mankind. This is truth crystalized, and no amount of blind patriotism, partisan clamor or legal sophistry can resolve it.
If, as this Court has repeatedly held, the Specific Contract
But, as already stated, I do not propose to discuss this question. My present purpose has no further scope than to show that the claim in suit is a “public due” which cannot be paid, under the laws of this State and the former decisions of this Court, except in coin; that the collection and payment of “ public dues ” stand precisely where they stood before the passage of the Legal Tender Act—precisely where they would have stood had that Act never been passed, and that if it is possible for the Legislature to so declare, it has done so in language not to be misunderstood.
I am of the opinion that the judgment in this case, so far as it involves the question in hand, should be affirmed.
Mr. Chief Justice Cubeey did not express any opinion.