State ex rel. Berry v. Hundley

87 So. 890 | Miss. | 1921

Smith, C. J.,

delivered the opinion of the court.

This is a suit upon the bond of W. M. Hundley, a former treasurer of Tishomingo county, Miss., to recover money of the county which came into the hands of the treasurer, and for which he failed to account.

Hundley assumed the office of treasurer of Tishomingo county in January,, 1908, and in May, 1908, his bond was adjudged insufficient by the board of supervisors and an order was entered, directing him to execute a new bond, pursuant to Avhich the bond here sued on was executed and approved. The bond recites:

“Whereas, the above bounden W. M. Hundley was duly elected to the said office of county treasurer general county funds of said county of Tishomingo on the 5th day of November, A. D. 1907, for the term of four years, from the first Monday of January, A. D. 1908:

“Therefore the condition of this obligation is such that if the said W. M. Hundley shall faithfully perform and discharge all of the duties of said office of treasurer general county funds and all acts and things required by law, or incident to the said office of county treasurer of Tishomingo county, Mississippi, during his continuance therein, then the above, obligation to be void, otherwise to remain in full force and virtue.”

When the bond was executed the duty of the county treasurer was to “keep the moneys of the county, and to disburse the same agreeably to law;” to “faithfully observe and discharge all the duties that may, from time to time, be required of him; and at the expiration of his office, he shall deliver to his successor all money, . . . belonging to the county.” Section 978, Code of 1906 (section 4157, Hemingway’s Code).

Chapter 149, Laws of 1910, approved March'3, 1910, provides for the construction by the boards of supervisors of one or more highways in one or more of the supervisors’ districts of a county, and to issue and sell the bonds of the district or distracts in order to obtain money with which to construct the highway or highways. Section 6 of this chapter provides that the treasurer of the county shall be the treasurer of the funds arising under the provisions of the statute and liable on his bond therefor.

In 1911 the board of supervisors of Tishomingo county issued bonds of one .of the supervisors’ districts of Tish-omingo county xxnder the provisions of this statute to the amount of thirty-five thousand dollars, the sale of which was negotiated for the county by the Tishomingo Banking Company. This banking company was not a county depository, but Hundley kept the county’s money on deposit with it. The bonds were sold, by the banking company to the Bank of Commerce &' Trust Company of Memphis, Tenn., the cashier of which delivered to the Tishomingo Banking Company his check for the amount of the bonds payable “to the order of treasurer of Tishomingo county, Mississippi, when accompanied by a receipt of county treasurer on form supplied by us.” This check was indorsed by Hundley, and the receipt referred to therein was signed by him, and both were delivered by him to the Tish-omingo Banking Company, which delivered the bonds and cashed the check about three weeks before the expiration of Hundley’s term of office. Hundley did not account to bis successor for the money received from the sale of these bonds, and claims not to have known that the sale hhd been consummated. The money received for the bonds was entered by the Tishomingo Banking Company on its books to the credit of the “Good Roads Fund District No. 1.” This bank afterwards became insolvent, but the county succeeded in collecting from its receiver a portion of the money received by it for the bonds. This suit is to recover from the treasurer and his bondsmen the balance of this fund. There was a decree pro oonfesso against Hundley, but the bondsmen answered, denying liability, and on final hearing the bill was dismissed as to them, and the state has appealed to this court.

The contentions of the appellees are: First, the bond referred to covers the general county fund only, and not special funds of the character here in question; second, the bond does not cover duties imposed upon the treasurer after it was executed; third, the money arising from the sale of the bonds did not come into Hundley’s actual possession and control; fourth, the money arising from the sale of the bonds, having been credited by the Tishomingo Banking Company to the credit of the good roads fund district No. 1, the right thereto passed to Hundley’s successor by operation of law when he assumed the office.

First. The fact that Hundley’s office was erroneously described in the bond as “county treasurer general county funds of said county of Tishomingo” will not relieve the appellees of liability thereon for the funds here in question, for the bond was .subscribed by them and delivered and approved as the bond required of Hundley by section 3469, Code of 1906 (section 2807, Hemingway’s Code), in order that he might continue to hold, and receive the emoluments of, the office of county treasurer, and when such is the case the bond is binding on every one Avho subscribes it, to the same extent that it would have been had the office of the principal obligor been properly described therein. Section 3463, Code of 1906 (section 2801, Hemingway’s Code).

Second. The duty imposed on county treasurers of receiving and disbursing the money derived by the county from the sale of bonds issued under the provisions of chapter 149, Laws of 1910, is in no way different in kind from the duty of receiving and disbursing other moneys of the county, and an official bond is security, not only for the performance of the duties incumbent upon the officer when executed, but for such other duties, not different in kind, which may be thereafter imposed by the legislature upon him. Denio v. State, 60 Miss. 949; 22 R. C. L. 503; 27 Amer. & Eng. Enc. Law, 2d Ed., 542.

Third. It is immaterial whether the money paid by the Bank of Commerce & Trust Company of Memphis, Tenn., for the bonds came into Hundley’s actual possession or not, for it was his duty to have obtained possession of the money before issuing a receipt therefor, and' because of his failuré to discharge this duty the Bank of Commerce & Trust Company obtained the bonds, but the county failed to obtain the money therefor, and the bond sued on covers the “discharge” of “all the duties that máy, from time to time, be required of him.”

Fourth. It is true that Hundley’s successor had the right to collect this money from the Tishomingo Banking-Company, but that does not relieve the appellees, for it was Hundley’s duty to have collected it himself from the purchaser of the bonds, and to have paid it over to his successor.

The decree of the court below in so far as it dismissed the bill will be reversed, and a decree will be rendered here against the appellees for the money sued for, not to ex: ceed in amount the penalty of the bond.

Reversed, and decree here.