56 Ala. 1 | Ala. | 1876
The first proposition, to which the argument of counsel for appellants has been directed, is, that a county superintendent of education has not authority to sue a defaulting county treasurer, for the recovery of the poll tax received by him from the tax collector, or the portion of the State tax which the tax collector has paid to him, and which formed the school fund of the county. If he has such authority, and sues on the bond of the treasurer, the suit must be prosecuted in the name of the county, the obligee of the bond, for his use, and not in the name of the superintendent in his official capacity only. We propose to consider, first, the last branch of the proposition.
The rule of the common law was without exception, that actions on contracts, whether for the payment of money, or the performance of a duty — whether express or implied j by parol, or under seal, or by matter of record — must be prosecuted by the party having the legal title, irrespective of equitable or beneficial interests. As a general principle, if the express terms of the contract did not vary it, the legal title and interest resided in the party with whom tbe contract was made, or to whom the promise was made. Official bonds, of statutory creation, taken as a security for the performance of official duties, and indemnity to the State, or the citizen, against damage from official misfeasance, malfeasance, or nonfeasance, were made payable to the State, the county,, or a public officer; and actions thereon, by a party aggrieved by official delinquency, were authorized. Such actions, if not otherwise prescribed by statute, were maintainable only in the name of the obligee, for the use of the person aggrived, who was entitled to the recovery. — Governor v. Gantt, 1 Stew. 388; Perkins v. Moore, 16 Ala. 9; Chaudron v. Fitzpatrick, 19 Ala. 649.
The Code has wrought radical changes in these common-law principles. Actions founded on promissory notes, bonds,
2. There is another section, in which, if authority can be found to sustain the suit in its present form, it must be found; proceeding, for the present, on the supposition, that the county superintendent has authority to sue for the default of which complaint is made. The section reads as follows : “For any breach of any official bond or undertaking of any officer of this State, executor, administrator, or guardian, or of any bond or undertaking given in an official capacity to the State of Alabama, or any officer thereof, the person aggrieved may sue in his own name, assigning the appropriate breach.” — B. C. § 2552. This section is remedial ; and when it is compared with the pre-existing law, its purpose is unmistakable. It was intended that suits on official bonds, or the bonds of an executor, administrator, or guardian, should be prosecuted by the party really aggrieved, in his own name, dispensing with the mere form, which obedience to the rule of the common law required,, of introducing on the record, as nominal plaintiff, the obligee of the bond, who had no right or interest involved, and who could not control the suit — who was not answerable for costs, and could not release or discharge the recovery. The bond of a county treasurer, he being peculiarly an officer of the county, as distinguishable from an officer of the . State, payable to the county, and not to the State, or an officer thereof, may not be within the words of the section, if they are taken in a narrow or a strict sense. The section is remedial, and is part of a system of pleading, in which there is a clear intention to require the prosecution of suits in the name of the party having the beneficial interest — the right to receive, release, or discharge the recovery — and against whom defenses arising from his acts or admissions can be made, dis
3. This brings us to the inquiry, is the county superintendent of education, within the meaning of the section, “the party aggrieved ” by the failure of the county treasurer to pay over the poll tax, and other moneys received by him as the school fund, from the tax collector ? Without now inquiring what were the powers or duties of county superintendents, in respect to the school fund of the county, prior to the act of March 19, 1875 (Pamph. Acts 1874-5, p. 56), the 8th section of that act confers on them full authority to receive, and imposes the duty of collecting from the county treasurer, all school moneys in his hands at the time of its enactment, and all he should thereafter receive. It is insisted the act has reference only to the county treasurers then in office, and who should subsequently come into office, and not the county treasurers whose term of office had ceased, and who had not accounted for school moneys they had received. The purpose of this act was to transfer to the county superintendent the custody and disbursement of the school fund, which, under the act of April 19, 1873, had been intrusted to the county treasurer. It was intended to transfer to a county officer, whose duties appertained exclusively to public instruction, the school fund, keeping it separate and distinct from all county moneys, rendering it impossible to mingle it therewith; an officer under the supervision and control of the superintendent of public instruction, and removable by him for infidelity or incompetency in the performance of- his duties. The act is not, as supposed, retroactive in its operation, if applied to county treasurers whose term of office had expired, and who had not accounted for the school fund they had received. They were bound to account for such fund, and the act designates the officer to whom they can properly, and must make payment. No reason has been assigned for limiting it in oj)eration, so as to exclude delinquent county treasurers whose term of office had expired; and if such limitation was recognized, the act
4. The important question of the case is, whether the sureties on the general official bond of the treasurer, executed prior to the statute giving him authority, and imposing on him the duty, to receive from the tax collector the poll tax and other moneys forming the school fund, are liable for his defaults in reference to this fund. There can be no doubt of the general principle, that sureties have the right to stand on the terms of their contract, and that no change in it can be wrought without their consent. Subsequent distinct agreements may be made between the principal and the creditor; but they have no influence on the liability of the surety, unless prejudicial to his rights and interests, and their effect then may be to discharge him. If the engagement of suretyship relates to a particular office, with prescribed duties, it extends only to such duties as are prescribed when the engagement is entered into, and not to such as may be subsequently attached to the office. — 1 Chit. Con. 765, note (11th Am. ed). The cases usually referred to, in illustration, are Bartlett v. Attorney-General, Parker, 277; Bowdage v. Attorney-General, Ib. 488; in which a surety for a collector of the customs revenue, upon his appointment in 1691, was held not liable in respect of the custqm on coal, which was first imposed in 1698. Statutory official bonds must be read and construed,- in determining the extent of their obligation, and the liability the sureties thereon assume, in connection with the statutes which create the office,
5. The 7th section of the act of April 19, 1873, which conferred the authority on the treasurer, and which was of force when the money was received it is now sought to recover, reads: “That before any money shall be paid over to the treasurer under this such treasurer shall increase
If the new bond been given, there would have been no community of burden — no relation whatever between the sureties on it and the sureties on the original bond. They would not have been bound for the performance of the same duties, but by separate instruments, for the performance of distinct duties. Contribution could not have been compelled by the one sustaining loss, from the other, who had not entered into the engagement which was broken. — 1 Leading Cases in Eq. 156-7. The act contemplating and requiring from the treasurer a new bond, as a distinct,'independent security for the performance of the new duties it imposes, with a condition limited to a violation of such duties, and a new and different penalty, the sureties on his general bond are not liable for his defaults in respect to these new duties. State v. Bradshaw, 10 Iredell, 229 ; Crumpler v. Governor, 1 Dev. 52; Governor v. Barr, Ib. 65; Same v. Mattock, Ib. 214.
Sureties on official bonds guaranty only the performance of official duty. For the acts or transactions of the principal without the line of his duty, and not under color of office, they do not engage. If no statute Had been passed imposing on the treasurer the duty of receiving from the tax collector the poll tax and other school moneys, a payment of them to him would have been unwarranted, not discharging the collector from liability.— Governor v. Walker, 22 Ala. 118; Van Dyke v. State, 24 Ala. 81. The receipt of such moneys by the treasurer would have imposed no liability on his sureties. The legislature does not confer on the treasurer an absolute, unconditional authority to receive these moneys. The authority is conditional, and so is the duty of payment. The authority and duty, by the express words of the act, are dependent on the execution of the bond required. Before any part of the money can be paid, the treasurer must have increased his officiaí bond; and the bond can not be increased, until the superintendent of public instruction, having the means of knowing the extent to which it ought to be increased, has prescribed the amount or penalty. It is pub-
The result is, the Circuit Court erred in holding that a recovery could be had on the original or general bond of the treasurer, for his defaults in not accounting for any school money the tax collector may have paid to him.
The judgment, for -this error, must be reversed, and the cause remanded.