Roberts v. Board of County Commissioners

| Wyo. | Apr 3, 1899

Lead Opinion

Potter, Chibe Justice.

From the admitted facts in this case it appears that John Roberts, who had been duly elected-county treasurer of Laramie County for the term of two years commencing on the first Monday in January, 1893, before entering upon the discharge of his duties, presented his official bond signed by himself and the other plaintiffs in error as sureties (excepting Max Idelman, administrator, who stands in the place of the decedent, Abram Idelman, , one of the sureties) in the penal sum of one hundred fifty-five thousand dollars, which bond was then approved by the board of commissioners. The condition of the bond is as follows: “Now, therefore, the condition of this obligation is such that if the said John Roberts and his deputies, and all the persons employed in his office, shall faithfully and promptly perform the duties of said office, and if said John Roberts shall pay, according to law, all moneys that shall come into his hands as treasurer, and shall render a just and true account thereof whenever required by the board of county commissioners of the county of Laramie, or by any provision of law, and shall deliver over to his successor in office or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto, or belonging to his office of county treasurer, the above obligation to be void; otherwise to remain in full force and effect.”

For an assignment of a breach of the bond, the petition alleges that the said Roberts did not, as treasurer, faithfully and promptly perform the duties of the office, and did not pay over, deliver,, or transfer to his successor in office all moneys which he had received and collected and which came into his hands as such treasurer, and that he did not render a just and true account thereof, and did not ' ■ deliver to his successor in office, nor to any other person authorized by law to receive the same, the sum of twelve thousand six hundred and forty-two dollars and thirty-three cents, appertaining to and belonging to his said office of county treasurer, which moneys were the property of the plaintiff, and had come into the hands of said Roberts by virtue of his office as county treasurer, and which moneys it was his duty to pay over to his successor in office on the 7th day of January, 1895.

Upon the trial the jury were instructed to return a verdict for the plaintiff, the defendant in error here, for the sum of $12,642.33, with interest at eight per cent per annum from January,7, 1895, and in accordance with such instruction a verdict was returned for $15,999.56,

Motion for new trial was made and overruled and judgment rendered upon the verdict. The case comes to this court on error.

1. We will first consider the errors assigned in relation to the refusal of the court to admit in evidence certain new bonds given by the said treasurer during the same term of office.

The answer alleged as separate defenses, the giving of two new bonds on October 8, 1893, and October 3, 1894, respectively, in pursuance of orders made by the board of county commissioners, which bonds were alleged to have been respectively given and accepted as substitutes for previous bonds; and it was alleged that upon the giving of the first of the new bonds the sureties on the original bond were released from all acts, misconduct, or defaults thereafter occurring; and further, that none of the defaults set forth in the petition occurred, if at all, prior to the acceptance of such substituted bond.

On-behalf of the plaintiffs in error the said new bonds, together with the records of the board exhibiting the call therefor, were offered in evidence, but, upon objection, were excluded.

They are incorporated in the record and were doubtless examined by the trial court to determine their admissibility. It appears that they were given on the respective dates mentioned in the answer, contained like conditions as the bond in suit, and were each given for the sum of one hundred and twenty thousand dollars.

There were, therefore, three bonds furnished by the treasurer during the term of office covering the period of two years commencing in January, 1893, and securing the performance of the general duties of the office. The first was given at the beginning of the term, and is the one upon which the right to recovery is predicated in this action. The second was required on account of the insolvency of one of the sureties upon the first.- The death of a surety upon the second occasioned the call for the third. The statutory authority under .which the new bonds were required is found in Section 1911 of the Revised Statutes of 1887, and reads as follows: “If at any time the sureties, or any of them, upon any official bond, shall die, remove from this State, become insolvent, or from any other cause cease to possess the qualifications required by this chapter, the board of county commissioners shall require the officer giving such bond to give a new bond, with sureties as are required by this chapter. ’ ’

The statute contains no express limitation upon the obligation .of the old or former bond. If is silent in that particular. There is another provision of the statute which affords an opportunity to sureties upon a treasurer’s bond to ask for and obtain a discharge from further liability; and, when on account of such request a new bond from the officer is required, such original sureties remain liable only for the official acts from the time of the execution of the original bond to the filing of the new, or the expiration of the time allowed therefor. Rev. Stat. 1887, Secs. 3042, 3043.

Counsel for the county in the case at bar contends that under the statute and circumstances under which the new bonds in question were given, the sureties upon the original bond are not released from any liability, but that the bond continues in force throughout the official term, and bound for all acts and delinquencies occurring after as well as before the execution of a new bond.

On the other hand it is insisted that the original sureties are discharged from liability from defaults arising subsequent to the giving of the new bond, and that the latter is taken as a substitute for the bond previously given. Hence it is urged that as the default alleged is the failure to pay over to a successor in office, and such default occurred, if at all, after the execution of the new bonds, the original sureties can not be holden therefor.

We do not regard it as material to the present controversy whether or not the bond sued on continued in force so $.s to cover defaults or misconduct respecting money which came into the treasurer’s hands for the first time after the execution and acceptance of the new bond, or even money received by him, prior thereto, but actually remaining in his hands when the new bond took effect. Neither is it necessary or proper to decide whether the sureties upon either or both of the new bonds are liable for the default alleged in this case, or whether in case of a recovery against the original sureties they would, upon payment, be entitled to contribution from the sureties on the other bonds.

It clearly appears from the evidence that prior to July 20, 1893, the treasurer, Eoberts, had deposited certain public moneys belonging to the county in the bank of Thomas A. Kent, which bank failed on or about that date while some of the moneys remained there on deposit; also that such moneys, which constitute the principal of the amount sued for, did not at any subsequent time reach the hands of the treasurer, and that he did not pay the same to his successor in office. When asked as a witness if he had not lost $12,642.33 of the money which had come into his hands as treasurer, which the county had never received, he answered, ‘1 There is that amount that has not been paid to the county from Kent’s bank,” and he testified that he did not pay that over to himself as his own successor.

When the State examiner made an examination of the treasurer’s books and accounts in 1894, the latter reported to him that of the cash shown by his books $14,153.98 was in the shape of a claim in the Kent bank, and upon a subsequent examination it was shown that by the payment of dividends, said claim had been reduced to something over $12,000.

The original bond is at least clearly holden for the acts of the treasurer during the period intervening between its execution and acceptance of the new bond; and upon the facts above noted, the said original bond is bound, and the sureties thereon are liable, for whatever the responsibility of the treasurer* may be for the loss of the money occurring in July, 1893, when said bond was the only one in existence.

Whatever difficulty may seem to be in the way of a correct solution of the present question, arises from the character of the default or breach alleged, and the time when it is charged to have occurred; viz., the failure to pay the money to the successor of Roberts at the expiration of his term, after another bond had been required and given.

It is, however, apparent that the county would suffer no damage on account of the loss of the money bj the bank’s failure, and probably the cause of action therefor would not accrue until it should become the duty of the treasurer to pay out or dispose of the money according to law, and he should fail in the performance of that .duty, for, prior to such time it might have been replaced. According to the pleadings and evidence, the time for such payment or disposition did not arrive until the induction of a successor in the office. The liability of the plaintiffs in error upon their bond did not, in any event, cease until the money received by the officer under it had been accounted for in some mode recognized by the law. Whether in case all the money received -by the treasurer during the period of the first bond, and before the execution of the second, had been either duly paid out or disposed of as by law required, or actually remained in his possession after the execution of the seco'nd bond, would amount to such an accounting as to release the sureties upon the original bond, we do not care now to decide. The money sought to be recovered was not in his possession at any time after the date of the second bond, and he did not pay it out as by law required. If, therefore,' he is not in a position to be exonerated from the loss, he has not accounted for it in any manner.

Although it would probably have been better pleading to have charged the officer with the duty of safely preserving the public money from loss, and alleging that it had been lost in July, 1893, under such circumstances as to render him responsible therefor, and then to have averred the failure to pay the same to his successor, thus showing that the default had become complete, and that a damage and cause of action had accrued; we are of the opinion that upon the pleadings as they stand, and the evidence adduced, the county is entitled to recover upon said bond under the breach assigned, if the duty was incumbent upon the officer to pay or deliver the money aforesaid to his successor.

Technically, it is true, that the breach is grounded upon a failure of duty occurring after the giving of the new bonds, but the proof establishes that such breach was the direct result of acts and circumstances occurring prior to the giving of the new bonds. The bond secured a proper disposition of the funds which should come into the hands of the treasurer, and if he was under an obligation to replace the money in question and pay it out or deliver it for the benefit of the county, he defaulted in that' obligation, and it matters not that before the time for fulfilling that obligation his further acts were secured by other bonds given during the same term of office. The following are some of the authorities sustaining these views: Yost v. State, 80 Ind., 350" court="Ind." date_filed="1881-11-15" href="https://app.midpage.ai/document/yost-v-state-ex-rel-bouslog-7044921?utm_source=webapp" opinion_id="7044921">80 Ind., 350; Conover’s case, 35 N. J. Eq., 108; State v. Drury, 36 Mo., 281" court="Mo." date_filed="1865-10-15" href="https://app.midpage.ai/document/state-v-drury-8001702?utm_source=webapp" opinion_id="8001702">36 Mo., 281; County of Mahaska v. Ingalls, 16 Iowa, 81" court="Iowa" date_filed="1864-04-18" href="https://app.midpage.ai/document/county-of-mahaska-v-ingalls-7092945?utm_source=webapp" opinion_id="7092945">16 Ia., 81; State v. Moses, 20 S. C., 465; State v. Berning, 6 Mo. App., 105" court="Mo. Ct. App." date_filed="1878-05-28" href="https://app.midpage.ai/document/state-ex-rel-wolf-v-berning-8258114?utm_source=webapp" opinion_id="8258114">6 Mo. App., 105; Lloyd v. City of Ft. Worth, 82 Tex., 249" court="Tex." date_filed="1891-11-18" href="https://app.midpage.ai/document/loyd-v-city-of-fort-worth-3904499?utm_source=webapp" opinion_id="3904499">82 Tex., 249; State v. Lackey, 3 Ired., 25; Morgan v. Smith, 95 N.C., 396" court="N.C." date_filed="1886-10-05" href="https://app.midpage.ai/document/state-ex-rel-morgan-v-smith-3654003?utm_source=webapp" opinion_id="3654003">95 N. C., 396.

We do not regard the case of State ex rel. v. Finn, 23 Mo. App., 290" court="Mo. Ct. App." date_filed="1886-11-09" href="https://app.midpage.ai/document/state-ex-rel-knapp-stout--co-v-finn-6615290?utm_source=webapp" opinion_id="6615290">23 Mo. App., 290, .cited by plaintiffs in error, as in point. The decision in that case, which was a suit upon a second bond, yas based upon the fact that an intention contrary to the general rule was manifest by the terms of the bond, and rendered the sureties responsible for the officer’s conduct during his entire official term, thus covering that portion of his term preceding the bond as well as subsequent thereto. - The proof offered respecting the new bonds was therefore properly excluded.

2. The principal contention in the case arises out of the defense that the moneys sought to be recovered were lost without any fault or negligence on the part of the treasurer, and was not due to any misconduct on his part.

The evidence of the defendant in error, the plaintiff below, had disclosed that public moneys had been received by the treasurer and deposited in the bank of Thomas A. Kent, at Cheyenne, and that $12,642.33 thereof had been lost by reason of the failure of said bank in July, 1893.

On behalf of the plaintiffs in error, evidence was introduced showing the previous excellent standing and reputation of the bank as a place of deposit, the high character and standing, good business habits and ability of the banker, and the want of knowledge in the community of his approaching insolvency. A motion to strike out such evidence was sustained and plaintiffs in error excepted thereto. Several questions were then propounded to certain witnesses, and several offers of proof were made, all of which were objected to, the objections sustained, and the exceptions preserved. Among such offers fQllowing respectively questions relating thereto, may be mentioned the following, stating the substance thereof only : That the value of the banker’s property, at the time of his assignment, at the value which the same had maintained for years, was not less than one hundred thousand dollars in excess of all his liabilities; that prior to the assignment his bank business had been profitable; that his original absolute capital put into the business by himself was one hundred thousand dollars; that, outside of his banking business, he had, at the time of the assignment, not including his capital in tñe bank, nor any moneys which went into the bank, in any way, by deposits or otherwise, other property which had a value of not less than two hundred thousand dollars; that his failure was caused solely by a sudden and unprecedented panic such as this country had never before seen, and such as could not have been reasonably anticipated; that the custom of depositing public funds in a bank by the treasurers of Laramie County was a reasonable one, and was necessary for the safe keeping of the funds, and that there was no other way whereby the funds belonging to the county could be as safely or as securely kept as by depositing them in the manner in which they were deposited by the treasurer, Roberts; that the treasurer'had exercised all possible diligence as treasurer in the preservation of the funds sued for, and that no negligence in any degree whatever on his part as treasurer either caused, or in any degree whatever contributed to, the loss of the money here sued for, or any part of it.

It was proven that the moneys in question were deposited with other public moneys in the said bank in the name of John Roberts as county treasurer, and were not mingled with any private funds of the treasurer, and that the banker knew when deposited that they were moneys of the county. The custom of keeping public moneys in that manner for more than twenty years by county treasurers was admitted in the pleadings. The court refused to admit the evidence.

The theory of the plaintiffs in error is that the treasurer and his sureties are not liable for the loss of funds without fault or negligence on his part. On the other hand it is contended that the bond is absolute, and admits of no defense of diligence, faithfulness, skill, or honesty; but that under the statutes and bond, the treasurer is con-stitued an insurer of the safe keeping of the public funds intrusted to his care. This view was adopted by the trial court, and led to the exclusion of the testimony and offers respecting the treasurer’s honesty and diligence.

The judicial decisions of this country are not harmonious concerning the character of the responsibility assumed by public treasurers. TJpon the general question there exists a direct conflict, a majority of the courts, however, adhere to the doctrine of strict liability, and that the officer is not to be exonerated by any consideration of honesty, diligence, and faithfulness in the case of the loss of public moneys while in his hands unless, indeed, the loss shall have been occasioned by the act of God or the public enemy. A respectable minority refuse to accept that doctrine which is by all admitted to be a harsh one. The various reported cases upon this question further illustrate the divergence of judicial opinion by the respectable number of dissenting judges representing both sides of the controversy.

It is not a new question in this court, but had our very careful consideration, and was quite fully discussed in the case of State v. Gramm et al., 7 Wyo., 329, where the authorities were cited and many of them reviewed both in the majority and dissenting opinions. I da not believe that any decision up to that time had escaped our observation, notwithstanding that the learned judge who wrote the opinion in the recent case in Oklahoma, Van Trees v. Territory, 54 P., 495" court="Okla." date_filed="1898-07-30" href="https://app.midpage.ai/document/van-trees-v-territory-of-oklahoma-3832365?utm_source=webapp" opinion_id="3832365">54 Pac., 495, in alluding to the Gramm decision, states that we made no reference to the Colorado case of Gartley v. People. The learned judge is mistaken, as the case aforesaid was cited and referred to more than once in the majority opinion, and also in the dissenting opinion, and Colorado was mentioned as adopting the strict rule. He is also mistaken in the reasons which led to our conclusion in the Gramm case. So far as the general rule is concerned, the Oklahoma court was bound by the decisions of the Supreme Court of the United States, its court of last resort, wherein the strict doctrine was given birth, although in the application of the rule the Oklahoma court has gone as far as any other and enforced it respecting a bond much weaker in its terms and conditions than that passed upon in the leading case of U. S. v. Prescott, 3 How., 578" court="SCOTUS" date_filed="1845-02-18" href="https://app.midpage.ai/document/united-states-v-prescott-86333?utm_source=webapp" opinion_id="86333">3 How., 578, or in any other case before the United States Supreme Court.

In view of our comparatively recent decision in State v. Gramm et al., supra, we do not consider it either necessary or advisable to again cite or review the authorities. Nor do we consider it essential to again enter upon any elaborate discussion of the general question involved. It will be sufficient, I think, to restate briefly some of the legal propositions affecting the matter, which perhaps may be as well done by quoting from the Gramm case a statement of some of our conclusions then reached, and which agree with our present views. After showing that as to the bonds of executors,- guardians, receivers and the like, the doctrine of strict or absolute responsibility had never found lodgment in the jurisprudence of this country, and that in respect to bonds of public officers the doctrine was not applied or enforced in case of the loss of moneys belonging to others than the public, we said regarding said rule of strict liability, as follows : ‘ ‘ That principle is that, although the officer is a bailee, he has entered into a contract, with sureties, positively engaging to do something. The bond may fully express that engagement, or it may be aided by the statutes which prescribe the duties agreed to be performed. Finding a positive and solemn agreement, subject to no exception stated in the bond or statutes,' to distinguish between a bond in such case, and bonds in other cases to which reference has been made, the courts resort to the matter of public policy, which they hold requires that the absolute agreement or condition shall not be relaxed by any consideration of care or faithfulness, honesty, or skill, which may have been displayed by the officer. .That public policy is held to arise, and only to arise out of the possibility of fraud, and simulated defenses which public depositaries and their sureties could and would interpose, if any defense of lack of negligence or fraud on the officer’s part is to be permitted. As was stated in an earlier part of this opinion public policy is not invoked to alter any law of bailment. It does not act upon the common law obligations of a bailee, but is effectual only to keep the official strictly and absolutely to his bond and the conditions thereof. It is universally recognized and so stated in Boyden v. U. S.” (13 Wall., 17" court="SCOTUS" date_filed="1872-02-18" href="https://app.midpage.ai/document/boyden-v-united-states-88427?utm_source=webapp" opinion_id="88427">13 Wall., 17) “that virtute officii, the officer is not an insurer, but he may make himself so when he enters into a solemn obligation by contract. Such an obligation has been found to exist in bonds, and .under statutes supplemented by bond, which require the depositary of public funds to keep them safely, or to pay over to his successor, or to some other officer, all moneys which he shall have officially received, or to pay over all moneys belonging to his office, or language of similar, but as strong, import. ” * *■ * “ It is held that the condition of the bond in either event would be broken if the officer did not, in fact, pay over all moneys officially received by him, or did not keep the funds safely, or had failed to pay over all the money belonging to his office, as the case might be.”

In the Gramm case a majority of this court held that we were not required to assent to or dissent from the cases which refused to adopt the strict rule, but that the bond in that case did not bring it within the rule of strict liability.

. In the present case, however, it is earnestly insisted that the bond is one which by its terms and conditions calls for the application and enforcement of such rule, and it must be admitted at the outset that it does contain a condition which has been held in a very few of the later cases to constitute the officer an insurer, notably in Colorado, Gartley v. People, 49 Pac., 272, and in Oklahoma, Van Trees v. Territory, supra.

That condition is as follows : “And shall deliver over to his successor in office, or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto, or belonging to his office of county treasurer. ’ ’

Counsel for defendant in error in his brief inquires, “ Did the money lost in Kent’s bank pertain or belong to the office of county treasurer? ” “Was it,” referring to the condition, “an agreement to pay to his successor all money received, and not paid out on orders authorized by law? ”

The two inquiries are not identical. Neither are they necessarily entitled to the same answer. The money lost in the bank undoubtedly pertained and belonged to the office of' county treasurer at the time it was so lost. Whether the agreement of the bond amounted to a promise to pay to the successor all money received and not paid out on orders authorized by law depends upon a consideration of tbe question whether that money so lost continued to constitute money pertaining to the office in the sense in which those words are employed in the bond; and the answer to that question depends upon the character or degree of the responsibility of the treasurer for the safe keeping of the money, and whether if such responsibility is not absolute, the circumstances are such as to exonerate him from liability for said loss. It strikes us as illogical and unreasonable to say that when an officer handling public funds has solemnly contracted to keep them safely that he thereby becomes an insurer of their safety, and then to hold that without such an agreement one will be imported into a covenant to deliver all money belonging to the office to a successor in office. Such a condition, which has. a very obvious purpose, is thereby accorded an exceedingly comprehensive significance. It is thereby constituted the criterion of the degree of care or the measure of the responsibility resting upon the officer. Now, to us, it is clearly apparent that such a condition would be entirely consistent with .a provision of law or a separate condition of the bond limiting the official liability to cases wherein he can not establish his diligence, faithfulness, skill, and honesty, and when coupled with such a provision of law or such a condition of the bond the particular agreement or condition under consideration could not be held susceptible to the construction given it by a few courts for the purpose of applying the rule of strict liability. We are unable to find the measure of responsibility in the condition relied on. Its effect and the extent of the promise contained within its terms depend upon the duties devolving upon the officer in respect to the care of the funds in his hands, and the nature of the liability to be derived therefrom. If neither the bond otherwise nor the law has required that he shall keep the money safely so as to admit of no defense of diligence or skill, we do not believe the court is warranted in finding, or that the law requires it to find such a duty, or such a liability, in a condition to deliver all moneys, papers, etc., belonging to the office to a successor in the office. In that respect we find ourselves unable to agree with a few of the courts which follow the lead of the case of U. S. v. Prescott, supra. In our judgment those courts have unduly enlarged or extended the doctrine. In a recent enactment of our Legislature in regard to official bonds — passed since the Gramm decision — a form of bond is prescribed for public treasurers, the part material to this point being as follows : ‘ ‘ And shall with all reasonable skill, diligence, good faith, and honesty safely keep and be responsible for all funds coming into the hands of such officer by virtue of his office; • and pay over without delay to the. person or persons authorized by law to receive the same all moneys which may come into his hands by virtue of his said office.” Thus a promise.-to pay over all moneys to the person authorized by law to receive the same is associated with a condition to keep the moneys received by him with all reasonable diligence, skill, good faith, and honesty.

We do not undertake at this time to construe the late enactment. Such a course on the part of the court would be highly improper, but if said enactment imposes upon the treasurer the duty only of exercising diligence, skill, good faith, and honesty in the care of public moneys, it amounts to an expression of the policy of this State, which, hereafter at least, would control the judicial branch of the State government. Further than that, in view of the failure of the law heretofore, in respect at least of some public treasurers, to use language with reference to their duties sufficient to plainly constitute them insurers of the public funds, the late statute would seem to tend strongly in the direction of a denial of the previous existence of a policy which would exclude a defense of good faith, skill, honesty, and diligence when an officer and his sureties are. confronted with the loss of such funds.

In the bond before us there is no express covenant -to keep safely tbe moneys received. There are several provisions of law referring specially to the office of county treasurer. He is required to receive all moneys belonging to the county and State, and all moneys which may be by law directed to be paid to him, and to pay out the same only on the orders or warrants issued by the board of county- commissioners,- as prescribed by law, except where special provisions for the payment thereof shall be otherwise made by law. L. 1891, 178. He is required to keep a just and true account of the receipts and expenditures of all moneys which shall come into his hands by virtue of his office as treasurer. Id. The book or books in which are entered such account is to remain open at all times for the inspection of the board of commissioners or any member thereof, and to all county and State officers, or any citizen desiring to inspect the same, and at the annual board meeting in January, or at such other time as the board may direct, the treasurer is required to settle with the board his account as treasurer, and, for that purpose to exhibit to them all his books and accounts and all the vouchers relating thereto, to be audited and allowed; also, to make a report at each regular meeting of the amount received and expended during the intervening time if so required. E. S., 1887, Sec. 1826. It is required that the treasurer shall pay over to the territorial (State) treasurer, all territorial (State) taxes and other moneys received from the county-collector on account of the territory (State), in the same kind of funds in which received, and in so paying the same is to make a sworn statement that he has paid the same funds in kind as received by him, and has not exchanged or bartered any of the moneys, coin, bank bills, treasury notes, or -other currency received by him on account of • the territory for any auditor’s warrants, territorial (State) scrip or other certificates of indebtedness of the territory, nor caused nor permitted the same to be done, and that all warrants or other certificates of indebtedness of the territory (State) delivered by him to the treasurer, were received by him from the county collector in payment of territorial (State) taxes, of other moneys due the territory (Staté). Id., Sec. 1832.

Considerable stress seems to be laid upon this provision by counsel. A word in passing, therefore, with reference to it. It is evident that it is not intended to and does not relate in any manner to the degree or character of the responsibility of the treasurer for the safe keeping of the public funds. Its sole object was to secure to the territory and later the State, the proper payment to it of moneys paid to the treasurer on account of the territory or State. The county was and is made responsible to the territory and State for territorial and State taxes levied upon property within the county, which were and ' are required to be collected by .the county collector the same as county taxes. The identical money received was not required to be paid to the territorial or State treasurer, but only the same money in kind. If one kind of money allowed to be received should differ from another in value, the territorial or State treasury was not to be made to suffer by being paid in money of the poorer quality. If it ever subserved any useful purpose in the direction of that object, it has obviously been of no consequence for many years. The particular matter, however, clearly designed to be covered had relation to territorial and State warrants which were formerly receivable for territorial and State taxes. They have not been so receivable since 1895. The provision was calculated to prevent the treasurer from buying or speculating in territorial or State warrants with territorial or State money, and turning the same in for taxes paid to him in money.

With the exception of certain provisions of the criminal code, the above are all the statutory requirements concerning the office and duties of county treasurer as such which affect in any way the question in controversy.

The provisions of the criminal code are as follows: “Whoever being charged or in manner. intrusted with the collection, receipt, safe keeping, transfer, or disbursement of any money, funds, securities,- bonds, choses in action or other property belonging to or under the control of any county, school district, city, or town, converts to his own use, or the use of any other person, in any manner whatever contrary to law, or uses, by way of investment in any kind of property, or exchanges for other funds except as allowed by law, any portion of such money, funds, securities, bonds, choses in action, or other property, is guilty of embezzlement, and shall be imprisoned in the penitentiary not more than twenty-one years.” Laws 1890, Ch. 73, Sec. 51.

‘£ Any county treasurer ” * * * £ 1 who shall fraudulently fail or refuse, at the' expiration of the term for which he was elected or appointed, or at any time during such term when legally required by the proper person or authority to account for, deliver, and pay over to such person as may be legally entitled to receive the same, all moneys, choses in action, or other property which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement, and shall be imprisoned in the penitentiary for any period not more than five years.” Id., Sec. 52.

None of the above provisions of the statute expressly require the treasurer to safely keep the public moneys, or expressly constitute him absolutely responsible for their safe keeping, or expressly prescribe that he shall pay over to his successor all moneys which he shall have received and not paid out upon orders or warrants. The implied effect of the criminal sections — if any — upon that matter will shortly be considered.

We entertain no doubt whatever that one of the duties inherent in the office is to keep the public funds safely. That is a common law or implied duty. But no court has held that such a duty unless found to have been expressly contracted for by bond constitutes him an insurer of their safety. It is true that the bond in the case at bar secures the faithful and prompt discharge of all the duties devolving upon the treasurer, as well such as are implied as those which are expressed in the bond itself or the statute, but the distinction, as pointed out in the Gramm case, is this: The implied or common law obligation of safe keeping is not an absolute one, and although the officer is said to be charged with the safe keeping of the funds in his hands, the consequences of such an implied duty are such that, in reality, the obligation is to keep the moneys with all proper and reasonable skill," diligence, • faithfulness, and honesty.

Our statutory provisions upon the subject are quite similar to those of Colorado, and while a majority of that court were able to find in them and the bond sufficient to authorize and require the enforcement of the strict rule, I believe the views expressed in the dissenting opinion of Mr. Justice Goddard to be more in harmony with the principles of law governing such cases and the reasons underlying them. In his opinion he said, ‘ ‘ The question before us depends upon whether the provision of. the statute of this State prescribing the duties of county treasurers, impose an absolute duty to pay over the public moneys received by them.” And he failed to discover in them or in the condition of the bond, similar to the one in suit, any such absolute requirement. Gartley v. People, supra.

It may be that, as was said in the Prescott case, ‘ ‘ public policy requires that every depositary of public money should be held to a strict accountability,” hut that court did not, in my judgment, intend to assert that the depositary should be held to a stricter accountability than is prescribed in the bond or statute. Nor is there any reason, although possibly there may be some judicial authority, for such an assertion. To confine the officer strictly to his bond is one thing. To import into it some agreement which is omitted, and then hold him strictly to that is quite another. No element of public policy requires or authorizes the latter.

The treasurer is also ex-officio collector of taxes. Formerly the sheriff was ex-officio collector, and the provisions of the Revised Statutes with reference to certain duties of the' treasurer as collector as originally enacted, related to the sheriff as 'collector, but in the process of revising the commission having that matter in charge substituted for ‘ ‘ sheriff ’ ’ the ‘ ‘ treasurer.5 ’ This explanation is suggested to show that such duties were not connected with the treasurer’s office as such, but followed the office of collector of taxes and concerned that office exclusively. Among those duties may be mentioned the requirement for the keeping of a cash book, in which shall be entered every sum of money paid to him by virtue of his office with the date of payment, the name of the person paying the same, the account upon which the same was paid, and the nature of the funds so paid, whether gold, silver, United States treasury notes, bank bills or territorial (State) or auditor’s warrants, or other territorial (State) or county scrip, or evidences of territorial (State) or county indebtedness, and the amount of each separate kind; and that such cash book shall, at all reasonable hours of the day, be open to the inspection and examination of all persons desiring to inspect or examine the same. E. S. 1887, Sec. 1836. Also the penalty for a failure to keep such cash book in the manner directed. Id., Sec. 1839. We do not perceive how this provision affects the question before us one way or the other.

It is true that the bond of the treasurer is made, by statute, to cover any or all violation or violations of his duties as collector of taxes. L. 1890-91, Ch. 45,.Sec. 3. But no breach of the bond in that respect is charged in this case.

It is urged, however, that as the statute provides that the treasurer’s bond is made to cover all such violations of his duties as collector of taxes, and ‘ ‘ Any and all failure or failures on his part to pay over to the proper person or persons any moneys by him received as collector of taxes, and any. and all failure or failures of said treasurer to deliver to any person or persons authorized by law to receive the same any books, papers, or other things appertaining to his duties as collector of taxes, ” he is by such statute made absolutely responsible for the safe keeping of all moneys received by him as collector, while he holds them as such, and is an insurer as to them — no more liberal rule should be adopted, and the duties of the office of treasurer ought not to receive a more liberal construction after he has paid the moneys to himself and has control of them strictly as the treasurer and permanent custodian thereof.

If a more liberal rule has been adopted, or not so strict a rule prescribed, the fault if any lies with the Legislature. We are not called upon to determine the construction to be accorded the language above quoted, with reference to violations of the duties of collector. Should it be entitled to the construction counsel for the county assumes, we can not agree with him that it requires or even authorizes the court to hold the treasurer to the same kind of accountability after the funds are in his control strictly as treasurer. If persuasive at all, the fact that the Legislature ' may have constituted the bond of the treasurer security for the absolute safety of the funds in his hands ■as collector, and has failed to make as stringent declarations respecting the duties of treasurer, is an argument against the position of the county in this case. The provisions of the statute referred to specifically and with evident care apply solely to the office and duties of collector of taxes. If such a provision seems to counsel to have been absurd or useless as. applied to that office, and not also to the treasurer, we have only to say that it was and is the concern of the Legislature and not the court.

Eespecting the provisions of the criminal code herein-before quoted, they are not entitled to much consideration in determining this question unless the deposit in bank constituted an offense punishable under one or the other of those sections. Counsel for defendant in error contends that not only was there no authority for such a deposit, but that the statutes taken together deny the right to make such deposits, and that the treasurer violated the law when he made them, If hig act amounted to such a violation, be committed a criminal offense, and as it is admitted by the pleadings to have been the long-established custom for county treasurers to handle and keep the public funds in that manner, the law has been many times and constantly violated. Moreover, in the Gramm ease the same custom was conceded to have long existed in the case of territorial and State treasurers; and it is a matter of common knowledge that all public treasurers — county, school district, and municipal — throughout the territory and State have customarily kept the funds in their charge in the same way by deposit in banks. We are not prepared to accept the conclusion of counsel that all of them are guilty of the grave crime of embezzlement. There may not be, and there does not seem to be, any affirmative declaration of the statutes that public funds may be so deposited for safe keeping; but we have not observed any provision of law which expressly negatives the right of public treasurers to provide in that way for the safety of the funds intrusted to their' official custody. In view of the universal custom in the territory" and State, long continued and well known to Legislatures and citizens, we do not believe the court would be warranted in gathering from the statutes by implication a denial of the right of such officers to resort to that method which is the one adopted and approved by the best and most conservative business men in every community. It is not too much to say that it has been for years and is now regarded by those possessing the largest experience as the most certain means of securing public as well as private funds from loss. If the officer has been careless or negligent in selecting the bank through which to transact the public business, that is a matter not involved in the legal proposition.

In counsel’s brief, reference is made, and on oral argument attention was invited, to Section 7 of Article 15 of the constitution which provides that, “All money belonging to the State, or to any county, city, town, village, or other subdivision, except as herein otherwise provided, shall, whenever practicable, be deposited in a national bank or banks, or in a bank or banks incorporated under tbe laws of this State, provided that the bank or banks in which said money is deposited shall furnish security to be approved as provided by law, and shall also pay a reasonable rate of interest thereon. Such interest shall accrue to the fund from which it is derived. ” The constitutional debates were alluded to, for the purpose of ascertaining the object of the incorporation of that provision into the constitution. They do plainly interpret such object if it is not revealed in the section itself. The custom of depositing public moneys in banks was recognized, and it was sought to divorce as far as possible the matter of such deposits from favoritism and politics, and to further the idea therein elsewhere expressed that all accruing interest should benefit the public treasury, rather than the official custodian of the funds. In the opinion in the Gramm case it was expressed as our conviction that the provision was inoperative owing to the failure of the Legislature to enact the necessary laws for its enforcement. That failure continues, notwithstanding another legislative session has convened and adjourned. No provision for taking the security, or the approval thereof, or the selection of the banking depositaries has been made; and the direct representatives of the people during five sessions since the constitution became the fundamental law have by their silence deemed it proper to leave the selection of the banks for deposit and the manner of keeping the funds to the wisdom, skill, diligence, and honesty of the financial officers. It was not the design in the Gramm case to rest our decision upon any recognition of the right to make deposit of public funds in banks, disclosed in the constitutional provision referred to, and we do not think the opinion can reasonably bear any such construction. The matter was merely adverted to, in connection with the general knowledge of the people of the long-prevailing custom of public treasurers. There is no basis for the assumption of counsel that the. proposal of the constitution to -withdraw the money from the control of the officer and intrust it to banking depositaries under appropriate security, contemplated at the same time that the officer should stand as an insurer of its safety. That would be the gravest injustice.

The writer of this opinion has no apology to offer for his expression as a member of the constitutional convention when said provision was before it for consideration, nor for any variance between the views then expressed and now entertained. As a perfectly obvious explanation, however, it may be said that no investigation of the legal question^ or any examination of our statutes was then made, nor was there occasion or time to do so, and the statements as reported were based upon a mere general recollection that respecting public treasurers a doctrine of strict accountability had been announced by some courts. When the opinion in the Gramm case was prepared, I was well aware of the remarks as reported in the published constitutional debates, but deemed no reference, thereto necessary, nor do I now, but as counsel has apparently deemed it of some importance this brief mention is perhaps excusable.

The argument of counsel based upon the fact that the bank in which the money was deposited was a private institution, not being incorporated under the laws either of Congress or of this State, concerns merely the question of fault or negligence on the part of the officer. In the case of State v. Gramm we held that it was not negligence per se for a trustee to place the funds under his control in a private bank for safe keeping.

Upon the facts, the' question of diligence or good faith was excluded from the case in the trial court, and the facts are not before us for consideration.

The fact that Thomas A. Kent, in whose banking institution the moneys were deposited, was also one of the persons who signed the treasurer’s bond, is made the burden of an argument for an affirmance of the judgment. That argument is that as Kent lost the money he is certainly liable if Roberts is not; and that but one motion for a new trial haying been filed for all (except one) of the plaintiffs in error, and the judgment being proper, at least as against Kent, it can not, in this court, be successfully assailed by any of those joined in such motion, referring to the case of No. Platte Milling Co. v. Price, 4 Wyo., 293" court="Wyo." date_filed="1893-08-02" href="https://app.midpage.ai/document/north-platte-milling--elevator-co-v-price-6587344?utm_source=webapp" opinion_id="6587344">4 Wyo., 293.

The zeal of counsel has led him somewhat intemperately to embellish this argument with an array of most glaring sophistries. Proceeding from the proposition that the banker having received the money on deposit, and failing to return it, is responsible therefor, it is insisted rather than argued that his responsibility can be enforced in this case of a suit upon a bond, even if it should be found that none of the conditions had been broken, and notwithstanding the principal is not liable and has committed no breach of the bond against which he and' his sureties have obligated themselves. The argument is based upon a series of inquiries respecting the injustice-and absurdity of permitting the banker to excuse himself for the loss of the money and thereby escape liability. There is no doubt whatever that the banker remains x'esponsible for the repayment of the money deposited with' him, unless in some way or for .some reason he shall have become legally released, and in a proper suit to recover the same the defense interposed by Roberts and his sureties in this case would not avail him. But it seems mot to have occurred to counsel that the commonest principles of the law furnished a satisfactory, complete, and positive answer to his contention, and denial of its soundness.

If there is a liability upon the bond, it exists because of a default in some of its conditions. In the case at bar recovery is sought on account of an alleged default. No other cause of action is stated. As an abstract proposition Kent may be liable to account for the money deposited with him, though the treasurer should be exonerated; but this suit is brought upon an express written contract, and the right of recovery is founded upon an alleged breach of its conditions. No separate cause of action against Kent growing ont of his subsequent dealings with the treasurer and his relations to the money deposited with him is alleged, or could have been properly alleged in this case. It is charged in the pleadings that the plaintiffs in error, including Kent, obligated themselves and covenanted that the treasurer would perform certain duties, and pay over certain moneys. If it should be eventually determined that the treasurer had faithfully performed those duties and had paid over all the moneys he was by law or his contract required to pay over, then it will result that there has occurred no default in the contract sued on and no liability upon the obligation; and we are at a loss to understand what principle in the law would warrant the court in this case to hold Mr. Kent upon another and entirely distinct cause of action, not related to the one sued on, nor to any of the issues upon which the case was tried. Whatever may be the liability of any one as a purely abstract proposition, he is entitled to his day in court and to be heard in his defense. The conditions of the bond do not relate to the future conduct of the sureties, but cover the acts of the principal — the treasurer; and the bond provides that if. he performs those acts the obligation of the bond shall be void. The proposition is now made that notwithstanding that by the very terms of the bond the obligation thereof may be void, one of the parties thereto shall, nevertheless, be holden thereon. It is clear, however, that the indebtedness of Kent for the money lost while on deposit in his bank arises from obligations independent of the bond.

“It is unnecessary,” as was said by Mr. Justice Kel-son, ‘ ‘ to refer to authorities to show that the liability of the surety can not exceed that of his principal.” U. S. v. Allsbury, 4 Wall., 186" court="SCOTUS" date_filed="1866-12-26" href="https://app.midpage.ai/document/united-states-v-allsbury-87763?utm_source=webapp" opinion_id="87763">4 Wall., 186. While there are some well-defined exceptions to the general rule that wherever there is no principal there can be no surety; and whatever discharges the principal releases the surety, the circumstances of this ease do not bring it within any of the exceptions noted in the books. Such exceptions are those which are not inherent in or do not concern the debt, but are personal to the debtor, such for example as the minority of the principal, and defenses growing out of his insolvency or bankruptcy. The surety, however, may plead and is entitled to any defense which entirely avoids the obligation. 2 Brandt on Suretyship and Guaranty, 2d ed., Sec. 145.

For the reasons above given, the district court erred in excluding the testimony stricken out, and the proof offered to show that the treasurer had acted with prudence, diligence, good faith, honesty, and skill, and to establish his entire lack of fault or negligence.

For these reasons the judgment will be reversed, and the cause remanded for a new trial.

Reversed.

Knight, J., concurs.

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Dissenting Opinion

CoRN, J.,

dissenting.

Mr. Mechum, in his work on public officers, discussing the question of what loss occurring without his fault will excuse an officer from liability, says there are at least four theories. The first, that the officer having bound himself and his sureties without reservation by the express terms of his bond, this obligation can only be discharged by making such payment. The second, that he should be held to a strict accountability for the public money upon the ground of public policy. Third, that by force of the statutes governing the subject he becomes the debtor of the public for the moneys in his hands, and his liability therefore becomes absolute. The fourth view, he maintains, is more consonant with reason and justice, although the cases which maintain it are few. He states it as follows: “ By this view the officer is regarded as standing in the position of a bailee for hire and bound virtute officii, to exercise good faith and reasonable skill and diligence in the discharge of his trust, or, in other words, to bring to its discharge that prudence, caution, and attention which careful men usually exercise in the management of their own affairs, but not responsible for any loss occurring without any fault on his part. The statute may of course impose, or the officer may himself assume, a more onerous responsibility, but in the contemplation of this theory, a greater liability does not result from the simple undertaking to faithfully discharge the duties of the office.”

An examination of the authorities which sustain them, discloses that the distinction between what are here classed as the first and second theories is very narrow, if it exists at all. They hold alike that the officer and his sureties having entered into an obligation to pay, without reservation or qualification, loss of the funds without negligence or fault will not excuse performance. Some of them assign considerations of public policy as one of the reasons why such loss can not be allowed as an equitable excuse for non-performance, while others do not mention it. Even in cases decided upon the third theory that the officer is a debtor, the distinction is slight. For in such cases also the liability is measured by the terms of the contract of the bond and the technical ownership by the officer of the public funds is emphasized only as rebutting the claim that his liability is governed by the law of bail-ments. With reference to the fourth view under Mr. Mechem’s classification, it is to be observed that the language by which he describes the degree of the officer’s responsibility is quoted from the opinion in Cumberland v. Pennell, 69 Me., 357, the leading case supporting that view; and in that case the words are employed to define the common law liability of an officer ‘ ‘ in the absence of any statute enlarging it. ’ ’ And in the same case, after reciting that by the Maine statute the only condition required in the bond is “ for the faithful discharge of his duties,” it is said the officer “ might enter into a common law bond making him liable at all hazards.” And, in spite of some caustic criticisms of other decisions, the only important distinction actually insisted upon in the Maine case seems to be that the mere enumeration of additional duties in the statute does not have the effect, to increase the degree of the officer’s responsibility. And the court do not attempt to escape from the principle that, if an absolute liability is imposed by statute or assumed by the terms of the bond, such absolute liability must be enforced.

From a consideration of the reasoning of the authorities, thus briefly reviewed, I am of the opinion that the conclusion reached by this court upon the principal proposition in the pending case' can not be sustained upon the principles enunciated in any of the cases, including all those adopting what is termed the more liberal rule.

In State v. Gramm, 52 Pac., 532, the majority of this court held the officer and his sureties not liable, upon the ground that the bond containing no express obligation to pay over the funds, the obligation to keep such funds was not tantamount to an obligation to “ safely ” keep them; and that he was therefore excused' upon proof that he had performed his duties with fidelity and with reasonable skill and diligence. But the conditions of the bond having special reference to the liability of the treasurer in this action are that he ‘4 shall pay, according to law, all moneys that shall come into his hands as such treasurer, ’ ’ and that he “ shall deliver over to his successor in office, or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto, or belonging to his office of county treasurer.” Here is an obligation without reservation or qualification entered into by the officer and his sureties that he shall deliver over to his successor all moneys belonging to his office. By force of it, in my opinion, even under the reasoning in Cumberland v. Pennell, and like cases, the county ought to recover. It is an express contract, and the common law rule .of liability no longer applies,

But the majority of the court in discussing the latter clause of the condition say: “It strikes us as illogical and unreasonable to say that when an officer handling public funds has solemnly contracted to keep them safely, that he thereby becomes an insurer of their safety, and then to hold that without such an agreement one will be imported into a covenant to deliver all money belonging to an office to a successor. ’ ’ In my opinion a covenant to deliver the moneys to his successor imports a covenant to keep them safely, because unless he has kept them safely he will be unable to deliver them. But just preceding the last words quoted the court uses this language, “Whether the agreement of the bond amounted to a promise to pay to the successor all money received and not paid out on orders authorized by law, depends upon a consideration of the question whether that money so lost continued to constitute money pertaining to the office in the sense in which those words are employed in the bond; and the answer to that question depends upon the character or degree of the responsibility of the treasurer for the safe keeping of the money, and whether if such responsibility is not absolute, the circumstances are such as to exonerate him from liability for said loss.” I am unable to assent to this method of construing the contract. The words seem to be used in their ordinary meaning. Whether the moneys belonged or appertained to the office is a question of fact. Whether the officer was strictly bound or not bound at all for their safe keeping, they belonged and appertained to the office until disposed of according to law.

Of course, if the funds are finally lost or destroyed, they can not be said to belong to the office, because having disappeared or having no existence there can be no title to or ownership in them. But that they can not be said to belong to the office after they are lost is unimportant, from the fact that the responsibility for such loss is the very subject matter of this suit. I do not understand, however, that counsel for plaintiff in error rely upon, or that my associates have sanctioned any such juggling of words as would be involved in such a construction. And I think it is clear that within the meaning of the contract they belong to the office until disposed of according to law. Under any other interpretation the words of the bond would be entirely nugatory. For if the funds are deemed as no longer belonging or appertaining to the office when they become unavailable by the failure of a bank, the same result would follow in case they had been embezzled or otherwise misappropriated by the treasurer himself. They would in both cases be unavailable, and upon the same reasoning no longer belong or appertain to the office. In my opinion the words have only their usual and ordinary meaning. Property is said to “belong ” to an individual when he is rightfully the owner of it, when he has not been lawfully divested of the title. There is nowhere in the bond or the statutes any intimation that the words are used otherwise in this case.

But, in my opinion, Section 7 of Art. 15 of our constitution is strongly persuasive of the liability of an officer in this State in a case like the present, where the funds were deposited in a private bank without security. It provides for the deposit of public moneys in national banks, or banks incorporated under the laws of this State, provided such banks shall furnish security to be approved as provided by law. It is said that this is inoperative, because the Legislature has never provided for the approval of the security spoken of. I am not in sympathy with any method of legal interpretation by which the act, or failure to act of the Legislature may be permitted to defeat a positive provision of the constitution. While it is true there is no power anywhere to compel legislative action, the courts are not absolved from the duty of giving such force and effect to every provision of the constitution as is practicable in the absence of appropriate legislation. And it can not be doubted that this clause was so far operative, at least, that it was the duty of the Legislature to make such provision. Flor can it be doubted that it is so far operative that since its adoption the Legislature has no power to direct or authorize the deposit of public moneys in a private bank without security. If the Legislature then could not direct or authorize such deposit in a private bank, it is going very far to say that the treasurer without such legislative authority may do what the Legislature is prohibited by the constitution from authorizing him to do, and yet be held harmless in case of loss. And if it is meant that it is inoperative because the treasurer, by reason of such failure of the Legislature, could not substantially comply with its requirements, it is scarcely true that he could not haye substantially complied. He could have deposited íd a bank of the kind prescribed. He could have taken security for the deposit, and, whether approved under the provisions of any statute or not, such security would have been valid and binding as a common law obligation, and would have protected the county against loss.

It is also strongly persuasive that the rule of strict liability should be adopted by this court, that at the time the statutes governing this subject were adopted, Wyoming was a territory and the Supreme Court of the United States was its court of last resort. That court has always adhered to the rule of strict liability, never going farther than (as in U. S. v. Thomas) to except' cases where the loss was by the act of God or the public enemy. By a familiar rule, when the Legislature of the territory adopted those provisions they did so with the construction already placed upon them by that court.

I am of the opinion that the evidence was properly excluded and that the judgment should be affirmed.