17 Iowa 223 | Iowa | 1864
This case follows and approves Mt. Pleasant Bank v. Conway, 18 Ohio, 234, and Knox County v. Beam’s Sureties, 22 Id., 147, and expressly holds that a refusal by an officer to pay oyer money received in his official capacity, when demanded, is a failure to perform his official duty, and a non-feasance in office. In other words, such non-performance or non-fulfillment is the “omission of an official duty.” And the very language of the sentence, it seems to us, warrants this, and excludes any other construction. The law makes it the duty, the official duty, of the officer to pay over this money. If he fails to do this, he omits a duty plainly required of him in his official position, by the statute. His liability is incurred by this omission, and the right of action grows out of the same. Than this, nothing can be plainer; for the statement of the proposition is its demonstration. Such a failure is as much the omission of an official duty as the neglect to serve a notice or levy an execution, whereby the sheriff incurs a liability. And yet, no one would pretend that the three years’ limitation did not apply to such a case.
The meaning and construction to be given to the words, “including the non-payment of money collected on execution,” will be found discussed in the dissenting opinion in Poweshiek County v. Ogden, 7 Iowa, 177.
We cannot believe that they have any, much less a controlling influence over the other language of the statute.
The judgment should be
Affirmed.