19 Nev. 162 | Nev. | 1885
By the Court,
This action was brought against the county treasurer of Storey County, and the sureties upon his official bonds, to recover an amount of money admitted to be deficient in the accounts of the county treasurer. The answer alleges that the money was forcibly taken by robbers from the treasurer and carried away by irresistible force, “without any fault or negligence, or want of reasonable care or diligence in the preservation and care of said sum of money, so that said sum of money was entirely lost to the treasury of said county, and no part thereof has ever been recovered.” The district court sustained a demurrer, which was interposed to this answer, upon the ground that the facts stated did not constitute any defense to the cause of action.
Was this ruling of the court correct? The conditions named in the official bonds “is such that if the above bounden Dennis Nevin shall well and truly and faithfully perform and execute the duties of treasurer of the county of Storey now required of him by law, and shall well, truly, and faithfully execute and perform all the duties of such office of treasurer required by any law to be enacted subsequently to the execution of this bond, then this obligation to be void and of no effect; otherwise to be and remain in full force and effect.” Appellant insists that his responsibility under this contract is simply that which the common law imposes upon a bailee for hire; that he is not in any sense an insurer of the moneys in his custody, and should not be held responsible for the money that was stolen from him, and taken by the use of irresistible force, without any negligence or fault or want of care on his part. The great weight of the authorities upon this subject are adverse to the views contended for by appellant. The general rule upon this subject is to the effect that public officers who are intrusted with public funds, and required to give bonds for the faithful discharge of their official duties, are not mere bailees of the money, to be exonerated by the exercise of ordinary care and diligence; that their liability is fixed by their bond; and that
Recognizing the almost universality of this rule, appellant contends that the decisions against him are founded upon the peculiar wording of the bonds, or provisions of the statute, to the effect that the officer shall safely keep and pay over all moneys coming into his hands. It is true that in U. S. v. Prescott, 3 How. 588; Com. v. Comley, 3 Pa. St. 374; State v. Harper, 6 Ohio St. 610;
But there are anequal-or greater number of cases like Muzzy v. Shattuck, 1 Denio, 233; District T. v. Morton, 37 Iowa, 550; Inhabitants v. McEachron, 33 N. J. Law, 340; Boyden v. U. S., 13 Wall. 17; and State v. Moore, 74 Mo. 413,
The court said: “It is objected that the latter branch of the condition was unauthorized by law, and therefore of no effect. But if the condition for the faithful performance of his duties includes the paying over, according to law> of a-11 moneys that might come into his hands as such treasurer, nothing is added to the legal effect of the bond by the latter branch of the condition. An examination of the various statutes bearing on the question shows clearly enough that one of the duties of a county treasurer is to pay over according to law all moneys that come into his hands as such treasurer; hence we shall consider the case as if the bond had been conditioned simply for the faithful performance of the duties of the office.”
In Boyden v. U. S., 14 Wall. 24, the court, referring to U. S. v. Prescott, said: “ The condition of the receiver’s bond in that case, it is true, was that the receiver should pay promptly when orders for payment should be received, while the bond in the case before us is conditioned that Boyden, the receiver, had truly executed and discharged, and should continue truly and faithfully to execute and discharge, all the duties of said office according to law. But the acts of Congress respecting receivers made it their duty to pay the public money received by them when ordered by the treasury department. * * * The bond, therefore, was an absolute obligation to pay the money, and differing not at all, in legal effect, from the bond in Prescott’s Case.”
What are the duties of a county treasurer under the statutes of this state? In addition to requiring an oath and an official bond, it is, among things, provided that the county treasurer “ shall receive all moneys due and accruing to his county, and disburse the same on the proper orders issued and attested by the county auditor.” (2 Comp. L. 2981.) “ He shall so arrange and keep his books that the amount received and paid out * * * shall be exhibited in separate accounts, as well as the whole receipts and expenditures by one general account.” (2 Comp. L. 2984.) “ He shall at all times keep his books and
He shall assist the county auditor and county commissioners in counting the money in his office, so that they may “ determine whether the funds-, securities, and property of the county are all on hand.” (Stat. 1881, 21.) Under these provisions is it not manifest that it is the duty of county treasurers to safely keep the public money and pay it out only as provided by law? The fact that the county treasurer is required “ to receive money, and enter it in his cash-book, implies, without any other special regulation, that he is to keep it; and, being required to keep it, it follows that he is to keep it safely. This is one of the duties of his office he has undertaken faithfully to discharge.” (Thompson v. Trustees, 30 Ill. 101.) Unless he safely keeps it he could not exhibit it to the-commissioners as required by law, and it could not be counted. Neither could he deliver it to his successor in office. The duty to safely keep the money is made absolutely clear by the provisions of the statute already quoted and referred to. But there are also other provisions which are equally as strong and cogent. If any officer charged with the safe-keeping of public money converts the same to his own use, or loans any portion of such money, he shall be guilty of embezzlement. (Stat. 1881, 82; Stat. 1883, 96.) Could a county treasurer who converts the money to his own use claim that he is not an officer who is charged with the safe-keeping of the public money ? It would be a stigma upon the law and a disgrace to the judiciary to say that he could successfully maintain such a defense. The statutes of this state in relation to the duties of county treasurers are almost identical with those of Indiana. The supreme court of that state in Halbert v. State, supra, after quoting the statutory provision said: “ By these various provisions it is clearly seen that it is the duty of a county treasurer to pay over the funds in his hands according to law, which may be upon orders drawn upon him by the auditor, or to his successor in office, and a failure to make such
In Iowa, where the statute is not as strong as in this state, the same doctrine is held and applied to an officer upon a bond conditioned for the performance of his duties “ to the best of his abilities.” (District Tp. v. Smith, 39 Iowa, 9.) The statutes of this state are more stringent than the statutes of Ohio, except in relation to the conditions of the bond. In Stats v. Harper, 6 Ohio St. 610, the court said: “ By accepting the office, the treasurer assumes upon himself the duty of receiving and safely keeping the public money, and of paying it out according to law. ITis bond is a contract that he will not fail, upon any account, to do those acts. It is, in effect, an insurance against the delinquencies of himself, and against the faults and wrongs of others, in regard to the trust placed in his hands. He voluntarily takes upon himself the risks incident to the office, and to the custody and disbursement of the money. Hence it is not a sufficient answer, when sued for a balance found to have passed into his hands, to say that it was stolen from him; for, even if the larceny of the money be shown to be without his fault, still, by the terms of the law and of his contract, he is bound to make good any deficiency which may occur in the funds which come under his charge.”
We deem it unnecessary, upon this branch of the case, to specially refer to the numerous other authorities where the same doctrines are announced, as it is absolutely clear, from those already cited, that the distinction sought to be maintained by appellant, that the conditions of the bond and the provision of the statute of this state should be construed differently from the construction given in the decided cases, cannot be maintained. In many of the cases the courts have given as an additional reason for their conclusions that a public officer cannot set up the defense of a robbery of the publio funds in their possession. Thus, in U. S. v. Prescott, supra, Justice McLean, in delivering the opinion of the court, said.:
After discussing Prescott’s liability upon the bond, he adds: “Public policy requires that every depositary of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that he should keep safely the moneys which come to his hands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs so as to establish his loss without laches on his part. Let such a principle be applied to our postmasters, collectors of customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public?”
In Com. v. Somly, supra, Gibson, C. J., in delivering the opinion of the court said: “The opinion of the court in the case of U. S. v. Prescott is founded on sound policy and sound law. * * * The keepers of the public moneys, or their sponsors, are to be held strictly to the contract, for if they were to be let off on shallow pretenses, delinquencies, which are fearfully frequent already, would be incessant.”
To the same effect are the decisions in District Tp. v. Morton, 37 Iowa, 553; U. S. v. Watts, 1 N. Mex. 562; Commissioners Jefferson Co. v. Lineberger, 3 Mont. 231. The only defenses recogpized by any of the authorities in the United States at the present time, with the exception of Cumberland Co. v. Pennell, 69 Me. 357,
In U. S. v. Thomas, 15 Wall. 341, it was held that the act of
In U. S. v. Humason, 6 Saw. 201, the court permitted the defense that the officer with the money was on a steamship which was lost at sea, and the officer drowned, and the money lost in the Pacific Ocean. The doctrines announced in that case are similar to the case of U. S. v. Thomas, and do not in any manner militate against the general views we have expressed.
In State v. Moore, supra, the defendant, who was county treasurer, answered that he ought not to be held upon his bond because Mississippi County, “ being overrun with tramps, thieves, robbers, public enemies, the money could not be safely kept in said county,” and that, for the purpose of keeping it safely, he deposited it to his credit, as treasurer, in a bank in St. Louis, which failed, whereby the money was wholly lost. The court said: —
“ Such an answer as this, we think, is insufficient to shield defendant from liability, in any view which can be taken of the case. If the obligation assumed by defendant in his bond, to deliver over to his successor in office all money belonging to the county, can only be met or discharged by making such delivery or payment, it is clear that the facts set up in the answer, and admitted to be true, constitute no defense. That*171 the above rule is the correct one, governing in such cases, is established by the following authorities”: Citing State v. Powell, 67 Mo. 395, and the various decisions of the supreme court of the United States. “If, on the other hand, under the rule laid down in the case of U. S. v. Thomas, 15 Wall. 337, defendant is to be regarded as a bailee, and exempt from liability to pay when the loss is occasioned by the act of God or a public enemy, he would still be liable under the facts stated in the answer, because they show that the loss was not occasioned in either of these ways. The tramps, thieves, and robbers which it is alleged overrun Mississippi County, while they are enemies to the peace and safety of the public and social order, they are not public enemies in. the legal sense of these words. By enemies is to be understood public enemies with whom the nation is itself at open war; and not merely robbers, thieves, and other private depredators, however much they may be deemed, in a moral sense, at war with society. Losses, therefore, which are occasioned by robbery on the highway, or by the depredations of mobs, rioters, insurgents, and other felons, aro not deemed losses by enemies within the meaning of the exception.”
The action of the district court in sustaining the demurrer to the answer was correct.
The other positions taken by appellant relative to the time when the cause of action could be commenced are wholly untenable. Having admitted the defalcation, and claimed the right to interpose the defense inserted in his answer, the state was not compelled to wait until the close of appellant’s term of office before commencing an action upon his bond.
The judgment of the district court is affirmed.
67 Am. Dec. 460.
59 Am. Dec. 171.
41 Am. Rep. 322.
31 Am. Rep. 284.