This action sought a declaratory judgment construing and applying Chapter 297, Laws of Nebraska, 1947, now section 79-2715, R. S. Supp., 1947, with relation to the bond of the treasurer of the board of education for plaintiff district in Omaha, a city of the metropolitan class, which bond was theretofore duly executed in conformity with section 79-2715, R. S. 1943, prior to amendment of the latter section by the foregoing act.
After hearing upon the merits, the district court entered a decree finding and adjudging the issues generally for plaintiff and against defendants. The decree
Motion for new trial was overruled, and defendants appealed, assigning substantially that the judgment was contrary to law. We sustain the assignment.
There was no dispute about the facts. Defendant Ernest A. Adams, hereinafter generally designated treasurer, was duly elected and qualified as county treasurer of Douglas County for a term of four years, beginning January 9, 1947, the first Thursday after the first Tuesday in January next succeeding his election. Upon election as such, and subsequent qualification for the office, he was concededly ex officio treasurer of the board of education for plaintiff district, hereinafter generally designated as plaintiff. On January 9, 1947, in conformity with section 79-2715, R. S. 1943, and certain other statutes in pari materia therewith, the treasurer as principal, and defendant Continental Casualty Company, as surety, hereinafter generally designated as such, with approval of plaintiff’s board of education, executed an official bond payable to plaintiff in the principal sum of $500,000, which bond was duly filed as required by law.
The bond specifically provided: “THE CONDITION OF THIS OBLIGATION IS SUCH, that WHEREAS, the above bounden, ERNEST A. ADAMS, has been elected to the office of TREASURER OF THE SCHOOL DISTRICT OF THE CITY OF OMAHA, in the County of
“NOW, THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that if the said ERNEST A. ADAMS shall render a true account of his office and of the duties therein to the proper authorities when required thereby or by law; and shall promptly pay over and deliver to the person or officers entitled thereto, all money and property which may come into his hands by virtue of his said office, and shall faithfully account for all balances of money remaining in his hands at the termination of his office, and shall hereafter exercise all reasonable diligence and care in the preservation and lawful disposal of all money,, books, papers and securities or other property appertaining to his said office, and deliver them to his successor or to any person authorized to receive the same; and if he shall faithfully and impartially discharge all other duties now or hereafter required of his office, by law; then this obligation shall be void, otherwise to be and remain in full force and effect.” (Italics supplied.)
In that connection, contrary to plaintiff’s contention, any statutory requirement that the treasurer should give a bond would not be a duty of his office, but rather, as hereinafter observed, would be a required precedent element of qualification as distinguished from eligibility for the office in order to avoid a vacancy and permit him to legally hold the office and perform the duties thereof then or thereafter required by law. The conditions and obligations recited in the bond had reference solely to the duties of his office after qualification therefor by execution of the bond.
Concededly, the agreed annual premium charges for the bond were $2,000 for the first year, which sum plaintiff paid the surety when the bond was executed,
In that regard, the term of an official statutory bond is not ordinarily measured by annual premium charges but by the fixed term of the public office for which the bond was given, or the term as specifically provided in the bond itself. Jaeger Mfg. Co. v Massachusetts Bonding & Ins. Co.,
Fidelity & Deposit Co. v. Libby,
When the original bond was executed, section 79-2715, R. S. 1943, insofar as important herein, provided: “He shall give bond, payable to the board of education in an amount equal to the sum that may be in his possession at any one time of moneys belonging to or under the control of the board of education, but such sum shall not be less than the maximum sum that may be in his possession at any time of moneys belonging to or under the control of the board of education, and the bond shall be signed by one or more surety companies of recognized responsibility. The cost of the bond shall be paid by the school district.”-
The foregoing section, as amended by what is now section 79-2715, R. S. Supp., 1947, was approved May
It will be observed that the original bond was comprehensive of both the foregoing sections.
On October 20, 1947, assuming and contending that the statute as amended was operative retrospectively and by its terms and provisions gave it power and authority to do so, plaintiff’s board of education adopted a resolution, the effect of which was to request that defendants submit for its approval a new bond in the reduced penal sum of $200,000, found by it to be sufficient, conditioned therein according to the statute as amended, which new bond upon approval thereof should be substituted for the original theretofore in force and effect, and that said original bond should then be cancelled.
On October 22, 1947, the attorney for the board of education wrote a letter to the local agent for defendant surety, referring to the resolution and requesting such agent to ascertain the rate on such a new bond to be thus substituted and the pro rata amount of the unearned premium that would be due and payable to plaintiff on cancellation of the original, insofar as it affected future defaults. It also suggested that if a reduction in the penal amount, of the original bond by its amendment,' to include the reduced penalty and the purportedly new statutory duties imposed upon the treasurer would effect the same
Defendants refused to comply with the request to reduce the penalty of the original bond, either by substitution of a new bond and cancellation of the original, or by amendment of the original. This was done upon the premise that the statute as amended was operative only prospectively, and that neither its provisions nor the ■provisions of any other statute gave the board of education any retrospective authority, actual or implied, to reduce the penalty or cancel the original bond or release and discharge the surety before final termination of the contractual term, and that to hold otherwise would contravene Article I, section 10, Constitution of the United States,- and Article I, section 16, Constitution of Nebraska, by impairing the obligation of contract.
Defendants also refused to incorporate in the original bond, by amendment or otherwise, as conditions or obligations thereof, the new duties set forth in the amended statute, upon the premise that the provisions of the original bond were all inclusive thereof, not only by virtue of controlling applicable law but also because of the general and specific language appearing therein, particularly that part requiring the treasurer to “faithfully and impartially discharge all other duties now or hereafter required of his office, by law; * *
In the light of the foregoing, the surety also refused to refund plaintiff $3,060 premiums already paid on the original bond for the full four-year term, which sum represented the pro rata portion of the unearned premium on the bond at the reduced penalty rate from January 1, 1948, to the end of the term.
No accounting was ever had by or demanded of the treasurer and the bank balance, representing moneys belonging to or under the control of the board of education, was $526,546.25 for October 1947. Thereafter, throughout 1947 and 1948, such balances were substantially larger for several months, and they were never
The issues in this case are to be decided upon the basis of what the Legislature did do and not what it could have done. As we view it, this court is simply required to interpret and apply a clear and unambiguous statute.
Concededly, the Legislature by amendment imposed new duties of the same general character upon the office of the treasurer, to be performed in the future, and thereby included new conditions and obligations in the original bond itself, not only by virtue of the general language but by specific language used therein, as well as upon legal principles. See Stearns on Suretyship (2d ed.), § 152, p. 253. The trial court evidently took that view, and since no complaint is made here upon that question, it does not require further discussion.
Concededly also, the amendment gave plaintiff the prospective fight and power to enlarge the penalty or require an additional cumulative bond at any time the board of education deemed it necessary to protect the public. However, plaintiff made no such demands. Rather, without attacking the sufficiency of either the penalty, the surety, or the validity of the original bond, plaintiff claimed the restrospective right, power, and authority under the statute as amended to change or modify the original bond during its term, by reducing the penalty, thereby pro rata releasing and discharging the surety from its liability upon the original for the balance of the term, and recover back pro rata the unearned premium for that period in order solely to effect a saving
Plaintiff relies upon a statement appearing in 46 C. J., Officers, § 94, p. 962, reciting what the Legislature had the power to do with relation to official bonds. Ex parte Buckley,
It should be pointed out that a board of education is a creature of statute, and as sucb possesses no other powers than those expressly granted by the Legislature. Schulz v. Dixon County,
In that regard, plaintiff relied in part upon section 79-2704, R. S. 1943, which provides: “The affairs of the school district created by this act shall be conducted exclusively by the board of education, except as otherwise
Plaintiff also relies in part upon Gaddis v. School District,
Section 79-2715, R. S. 1943, simply required that the treasurer should give a bond payable to the board of education in a factually determinable amount, signed by one or more surety companies of recognized responsibility. The treasurer tendered such a bond, containing appropriate conditions and obligations, which was approved by the board of education on January 6, 1947, and filed as ■required by law on January 9, 1947, as a necessary prerequisite qualification for the office. See Chapter 11, p. 370, R. S. 1943, and the 1947 Supplement thereto.
To discuss the separate applicable sections of the aforecited statutes would serve no purpose. It is sufficient for us to say they provide that a school district treasurer, as an officer specifically enumerated, and as any person elected or appointed to any office requiring a bond, must qualify for the office by filing a bond within the time required by law, or “his office shall thereupon ipso facto become vacant.” §§ 11-101, 11-103, 11-105, 11-107, and 11-115, R. S. 1943, and § 11-119, R. S. Supp., 1947. See, also, section 79-404, R. S. 1943, as bearing upon the intent of the Legislature with reference to qualifications for the office of school district treasurers by filing a bond.
The requirement that a school district treasurer shall
In that regard, Frans v. Young,
It is well established in this jurisdiction that a legislative act will operate only prospectively and not retrospectively, unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed. War Finance Corporation v. Thornton,
The general rule applicable here is that, in the absence of express statutory authority, no public official or governing body has the right, power, or authority to cancel, substitute, change, or modify an existing -official statutory bond, or to release and discharge the surety thereon
Also, in that connection, a statute simply granting an official or governing body prospective authority to exercise a limited discretion and thereby fix the amount of the penalty and approve an official statutory bond does 'not by implication authorize such official or body to modify or cancél a theretofore validly executed bond or to reduce the penalty and pro rata or otherwise release and discharge the surety prior to its termination. Sullvan v. State ex rel. Langsdale, supra; Fidelity & Deposit Co. v. Callahan, supra; Fidelity & Deposit Co. v. Fleming, supra; First Nat. Bank v. Moon,
By analogy, neither would incorporation, of a statutory provisionprospectively authorizing such official or body to enlarge the penalty of an existing bond or to require an additional bond cumulative in character, which statute omitted any reference to authority to make a reduction of the penalty after it had been theretofore fixed as required by statute, give any implied authority to do so.
Under the Circumstances presented here, both of the foregoing propositions of law clearly come within and are controlled primarily by the maxim, expressio unius est' excjusio alterius, which, when operative in the law
Since we have decided that the section as amended was intended to operate and did operate prospectively only, no constitutional question is involved, and it will not be discussed.
We conclude that the decree of the trial court was contrary to law, and for the reasons heretofore stated, the judgment should be and hereby is reversed and the action is dismissed.
Reversed and dismissed.