74 Ill. 482 | Ill. | 1874
delivered the opinion of the Court:
Unless the collection and custody of the fund involved in this controversy can be held to have been fairly within the contemplation of the parties at the time of the execution of the bond, there can be no recovery, for no principle of law is better settled than that the contract of a surety is to be construed strictly, and his liability cannot be extended by implication beyond the terms of his obligation. As observed by Stout, J., in Miller v. Stewart et al. 9 Wheat. 680: “ To the extent, and in the manner and under the circumstances pointed out in his obligation, he is bound, and no further.” Reynolds v. Hall et al. 1 Scam. 35; People, etc., v. Moon, 3 id. 123; Governor, etc., v. Ridgway, 12 Ill. 14; C. & A. R. R. Co. v. Higgins et al. 58 id. 128; Smith v. Peoria County, 59 id. 425.
By the fourteenth section of the “ act to regulate public warehouses, and the warehousing and inspection of grain, and to give effect to article thirteen of the constitution of this State,” in force July 1, 1872, Laws of 1872, pp. 767-8, it is made the duty of the governor, by and with the advice and consent of the senate, to appoint a person having the qualifications therein prescribed chief inspector of grain for every city in which is located a warehouse of class A, who shall hold his office for the term of two years, unless sooner removed. It is the duty of the inspector thus appointed to have a general supervision of the inspection of grain, as required by the act or the laws of the State, under the advice and immediate direction of the board of commissioners of railroads and warehouses. He is authorized to nominate to the commissioners of railroads and warehouses assistant inspectors, and such other employees as may be necessary to properly conduct the business of his office, and the commissioners are authorized to make the appointments. Upon entering upon the duties of his office the chief inspector is required to execute a bond to the people of the State in the penal sum of $50,000, with sureties to be approved by the board of commissioners of railroads and warehouses, conditioned that “ he will faithfully and strictly discharge the duties of his said office of inspector according to law, and the rules and regulations prescribing his duties, and that he will pay all damages to any person or persons who may be injured by reason of his neglect, refusal or failure to comply with the law and the rules and regulations aforesaid.” The assistant inspectors are required to execute bonds in the penal sum of $5,000, in form the same as that of the chief inspector, and it is provided that suits maybe brought upon all such bonds for the use of any person injured’, but there is no provision expressly authorizing suits to be brought thereon for the use of successors in office.
The bond follows the language of the statute, but neither in its condition nor in any part of the statute is there language referring directly to the anticipated collection and custody of money by the chief inspector, on any account. True, power is conferred by the statute upon the commissioners of railroads and warehouses to fix the rate of charges for the inspection of grain and the manner in which it shall be collected, but it does not designate the chief inspector, nor require that he shall be selected as the collector and custodian of the fund thus to be raised. The duty expressly enjoined upon the chief inspector is to have a general supervision of the inspection of grain, as required by the act or the laws of the State, which is to be discharged under the advice and immediate direction of the board ot commissioners of railroads and warehouses, who are empowered to make all proper rules and regulations for the inspection of grain. The sureties of the chief inspector, when executing the bond, must have within their contemplation whatever may relate to the supervision of inspection, but the collection of the charges for inspection, and the custody of the fund thus to be raised are distinct and independent acts, and the duty to perform them cannot be necessarily implied from the duty to have supervision over inspections, for manifestly they might be performed by some person other than the chief inspector, with equal propriety. Undoubtedly, the chief inspector may be selected to perform these acts, but it is impossible to foresee that he will be selected until the board of commissioners of railroads and warehouses have so indicated by their action.
When the bond of Tompkins was executed therefor, his sureties were not chargeable with knowledge by the law that he would be required to collect and have the custody of the fund in controversy, and since the declaration shows that the commissioners of railroads and warehouses did not, until after the execution of the bond, adopt the rules and regulations by virtue of which he did collect and obtain the custody of that fund, it follows it cannot be held within the contemplation of the parties in executing the bond that they were assuming any liability on that account, and that the demurrer was properly sustained.
Had the duty been enjoined upon Tompkins, as chief inspector, when the bond was executed, to collect this fund and retain its custody, a different and much stronger case in favor of the plaintiffs would have been presented. It is sufficient for the present, however, that no such case is presented by this record, and its merits need not be discussed.
The judgment, against the People for costs was erroneous, but this will be modified and the proper judgment rendered in this court, the error being purely formal and incapable of producing substantial injury to the people.
The judgment below is modified and affirmed.
Judgment affirmed,.
Scott and Craig, JJ., dissenting.
