People v. Stacy

74 Cal. 373 | Cal. | 1887

Belcher, C. C.

It is alleged in the complaint that on the third day of August, 1885, one H. T. Walker was appointed by the board of supervisors of San Bernardino County a license-tax collector for the first supervisoral district of that county; that to secure the faithful performance of the duties of the office, Walker gave a bond in the penal sum of three thousand dollars, which was accepted and approved by the chairman of the board; and that subsequently one of the sureties on his bond withdrew, and he thereupon gave a supplemental bond, which was also acceptéd and approved by the chairman of the board. It is further alleged that Walker, while acting as such tax collector, collected the sum of $1,650.50 for licenses, and that he converted the money to his own use, and failed to pay over any part of it to the county. This action was brought against the sureties on his bonds to recover the amount of money alleged to have been so collected and appropriated. In the court below, judgment was rendered in favor of the plaintiff, and from that judgment the defendants have appealed.

I. It is claimed for the appellants that the action was improperly brought in the name of the people of the state of California. The answer to this objection is, that the board of supervisors had authority to appoint a collector of license taxes (People v. Ferguson, 65 Cal. 288; County of Amador v. Kennedy, 70 Cal. 458), and the bonds given by their appointee for the faithful per-1 formance of his duties were official bonds. (Hubert v. Mendheim, 64 Cal. 213.) The Political Code provides that “ all official bonds must be ... . made payable to the state of California” (section 958), and “every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein to and for the state of California, and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity.” (Sec. 961.) The Code of Civil Procedure also provides that “ an executor or administrator, or trustee of an express trust, or the person expressly authorized by statute, may sue without joining with him the persons for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section.” (Sec. 369.) ¡Now, the contracts sued on in this case were made in the name of the state for the benefit of the county, and an action upon them was therefore expressly authorized to be brought in the name of the state. (See Shelby Co. v. Simmonds, 33 Iowa, 345.)

2. It is further claimed that the original bond was void because one William Reed was named as a surety in the sum of one thousand dollars in the body of the bond, but never signed it; and because one C. P. Hall signed the bond, but no sum was stated in the body of it for which he was bound. The principal was bound in the sum of three thousand dollars, and each of the sureties in the sum of one thousand dollars; and so far as appears, there were no conditions or stipulations by the sureties,, when they signed, requiring other signatures or affixing any limitations to their liability. The sureties became therefore jointly and severally liable on the bond when it was accepted and approved. (Pol. Code, sec. 956.) A bond signed under such circumstances is valid as against the parties signing it. It was so held in Los Angeles v. Mellus, 59 Cal. 444, where similar objections were made to the bond involved in that case. (See also State v. Pepper, 31 Ind. 76.) The objections of appellants cannot therefore be maintained; and as the foregoing are the only points made by them, the judgment should be affirmed.

Hayne, C., and Foote, C., concurred.

The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.