39 N.J.L. 539 | N.J. | 1877
The opinion of the court was delivered by
This action was on a bond given by Sooy, as treasurer of the State of New Jersey.
The office of treasurer is an annual office, elective by the legislature in joint meeting. Sooy was duly elected treasurer in 1873 and in 1874, and was continued in office in 1875, until the 1st day of September, 1875, by the failure of the legislature to elect his successor. Shortly before the 1st of September, 1875, it was discovered that he was a defaulter, and on that day he surrendered his office, and a new.treasurer was appointed by the governor.
In March, 1875, Sooy gave a new official bond, on whiph the other defendants became sureties. This bond is dated March 30th, 1875, and was approved by the senate and general assembly on the 8th of April, 1875. In the absence of other evidence of delivery, it must be taken to have been delivered on the date of its approval. The condition of the bond is as follows: “ The condition of this obligation is such, that if the above bounden Josephus Sooy, junior, shall from time to time, and at all times, render a just and true account to the legislature of the State of New Jersey, when by them thereunto requested, of all. money, securities, stock and other property of the said state which shall come to his hands, or be committed to his charge, and deliver the moneys, securities, stock and other property of said state, in his hands, together with all documents of said state, to his successor in office, and shall well, honestly and faithfully perform all the duties of the office of treasurer of said state, aud shall answer for all improper appropriations, waste, embezzlements or destruction of said moneys, securities, stock, property, docu
The material parts of the breaches assigned are—1. That the said Sooy did not, during that time, or at any time since, deliver the said moneys so by him received, to his successor in office, but kept, withheld and retained said moneys; and, 2. That the said Sooy did not, during that time, well, honestly and faithfully perform all the duties of the office of treasurer of said state, but, on the contrary, embezzled said moneys, and applied them to his own private use.
At the trial, all the issues in the record were found in favor of the state, except the issue of performance of the condition and payment. On these last issues a special verdict was found, which is now before the court for judgment thereon.
At the time of the making and delivery of this bond, Sooy appeared to be a defaulter in the sum of $68,321 24 for dividends due the state on its stock of the United Railway and Canal Company, and taxes due from said company in lieu of transit duties, which he had before that time received and withheld, embezzled or applied to his own use.
After the delivery of this bond, Sooy received from the same source the sum of $130,437.90. Of this sum, he failed to enter upon the books of his office the sum of $18,061.58, making the gross amount of his defalcations, on the 1st of September, 1875, apparently the sum of $87,382.78. A subsequent examination of the books- of the Union Bank of Mount Holly, disclosed a deposit by Sooy, to the credit of the state, of $28,321.22, which did not appear on the books of the treasurer. Of this sum, $18,321.22 were deposited before the 24th of March, 1875, being the proceeds of prior collections, and $10,000, a deposit of June 25th, 1875, which is one of the sums applied to the tax due for the quarter ending March 31st, 1875. By this discovery, the actual defalcation of Sooy, while in office, was reduced to the sum of $59,061.56.
Under the circumstances of this case, the defendants cannot be allowed a credit of any part of either of these sums of $28,321.22,or $14,944.92, on the $18,061.58, which was a defalcation out and out. They must be applied as a credit, generally, on the account, as a payment of the earlier items, and in reduction of the amount of the defalcation. In this wav the defendants obtain all the benefit of the above-mentioned sums they are legally entitled to.
The judgment, therefore, must be entered for $18,061.58, or $44,116.64.
The defendants contend that, as sureties, they are not liable for the prior defalcations of their principal, and that moneys received by him and paid over to the state, during the continuance of their suretyship, must, under all circumstances, be applied to the discharge of their obligation.
The determination of the soundness of these two propositions, and of their applicability to the present case, will determine for which of these sums judgment should be awarded.
It is conceded that sureties on an official bond are not liable for the prior defalcations of their principal. They are answerable for moneys received by him of his predecessor, or previously collected by him, if such moneys were actually in hand at the time of the giving of the bond; but they are not liable for past derelictions of duty, unless the bond be retrospective in its language. Farrar v. Brown, 5 Pet. 373; Broome v. United States, 15 How. 143; Hassell v. Long, 2 M. & S. 363; Freeholders of Warren, v. Wilson, 1 Harr. 110; Patterson ads. Inhabitants of Freehold, 9 Vroom 256.
April 24th, 1875, cheek for . . $2,000 00 “ 27th, “ “ . . 21,000 00
Being balance of monthly dues of April, . . $23,000 00
April 27th, 1875, check in payment for said tax for the month of March, 1875, . . 24,844 08
May 7th, check for . . . $1,500 00
“ 19 th . 1,500 00
« 28th 1,500 00
June 10th, . 1,500 00
“ 24th, 8,000 00
“ 24th, 10,000 00
“ 24th, 844 08
Being for taxes due and to become due, for the month of May, 1875, .... 24,844 08
June 24th, “as and for taxes duo or to become due for the month of June, 1875,” . . 24,844 08
July 8th, ..... $2,000 00
“ 19th .... 20,000 00
Being in payment of the tax for the month of July,....... 22,000 00
July 19th, “for quarterly dividend, due July 1st, 1875,”...... 7,217 50
August 14th, “in payment of tax due for July, 1875,”....... 2,844 08
In the books kept in the treasurer's office, in compliance with the statute, and which it was the duty of Sooy to keep, these moneys were, in part, misappropriated, as follows: OÍ the receipts “of monthly dues for April, 1875,” $21,844.08 were applied to the tax for the quarter ending March 31st, 1875. Of the receipts for the tax for the month of March,
. That these moneys were applied by Sooy to the payment, of. the amount due from him to the state for taxes due in December and March previously, is apparent from the character of the transaction. By statute, the treasurer is required “ to state, in books, the accounts of moneys which he shall receive for taxes, * * or on any other account for or in behalf of the state, * * in such a manner that the net produce of the whole revenue, as well as every branch thereof, may distinctly appear, (Nix. Dig. 998, § 7); and, forthwith,, upon the receipt of interest or other moneys belonging to the state, * * to report the same to the comptroller for audit and registry, before any acquittance or discharge is given therefor.” Nix. Dig. 1005, § 55. And it is made the duty of the comptroller “ to supervise the collection of the revenue, and to take general charge of all the rights, interests,, and property of the state. Nix. Dig. 1003, § 38.
The object of-these provisions was to provide for an official record in the treasurer’s office, not only of the moneys received, but also of the sources from which they were derived, and the demands due the state, to which they should be applied, and to obtain from the report of the treasurer to the comptroller, a similar record in the comptroller’s office, as a
Independently of the annual accounting to the legislature, the only supervisory authority over the treasurer is the comptroller, to whom he is required to report his receipts for audit and registry, before any acquittance or discharge is given. These reports are an accounting by the treasurer with the comptroller, as the auditing officer of the state. Such reports, when approved by the comptroller, must, as applications of moneys received, be regarded as official acts of such a nature as not to be gainsayed.
The contention of the defendants is, that they cannot be prejudiced by the appropriation of these moneys by Sooy to the payment of taxes received by him before their bond was .given, and that the moneys having in fact gone into the pub*lic treasury, must be applied to the account on which they were received.
At the time of the application of moneys received after 'the 8th of April, 1875, Sooy was indebted‘to the state in the amounts so applied, for taxes and dividends received in December, 1874, and after that date. He became a debtor to the state for taxes and dividends received after the defendants’ contract of suretyship. The appropriation of payments under such circumstances is regulated by a rule of law, which, as a general rule, must be regarded as completely settled. In the first instance, the right to direct to what particular debt the payment shall be applied, is with the debtor. If he gives no directions, the creditor may make the appropriation himself, and in the absence of all indications of the will or intention of the parties, the law will apply the payment according to its own notion of the intrinsic justice of
It is insisted that sureties on an official bond are excepted out of the operation of this rule of law ; that in such cases, neither the principal nor the government enjoys this right of application of payments; and that the duty of making such application devolves upon the court; and that, in the performance of that duty, receipts will be credited on the accounts on which they were received by the officer. If such an exception exists, the reasons on which it is founded are-not apparent, especially if it be so far-reaching in its operation as to impose a loss on the government, arising from the-misappropriation of public moneys by the officer for whose fidelity the sureties have undertaken. It furthermore imposes-a duty on the government of inquiring, at its peril, from what sources moneys remitted by its officer were derived—a duty which does not devolve upon a private individual holding the obligation of a surety.
Decisions of the federal courts were cited to support this
United States v. January, as explained by Judge Story in 5 Mason 87, n., only decided that there was no right of appropriation after payments had been made upon general account. In that case, it appears from the opinion of the court, that there was a general account kept with the officer, and that the payments were “ indiscriminately made.” In United States v. Giles, the payment was made by the officer “ without declaring what particular item in the account of the United States against him should thereby be discharged.” The court say, “ if there be no designation how a sum paid on account shall be credited, and there be sureties for part of the debt, as was the case here, it seems reasonable to some of the judges to let them have the benefit of it in such a way as to exonerate them.” “But,” the judge continues, “this is not the opinion of a majority of the judges; they think, and such is the decision of the court, that the United States have a right to apply these payments in a way most beneficial to themselves.” In that case the bond was dated the 9th of January, 1801. Giles was then in arrear in the sum of $3763.98, for moneys collected by him prior to that date. He became further in arrear in the sum of $1683.52, for moneys -which he had received after January 9th, 1801, and before March 27th, 1801, when he was removed from office. After his removal, on the 13th of April, 1803, he paid to the United States attorney $6238.35. The majority of the court held that the United States had a right to apply the money paid by the officer upon the antecedent defalcation, so as not to extinguish the sum of $1683.52, for which the sureties were accountable. As I read the opinion of the court, it does not, either in its circumstances, or in the reasoning of the court, or in the result, sustain the views of the defendants.
In none of these cases was the power of the officer making remittances, to direct how the moneys remitted should be applied, under consideration. In each case the result was entirely consistent with the existence of such right in the debtor. The remittances were of such a character as impliedly to amount to an appropriation by the officer to a specific purpose, which tlie government sought to defeat by diverting the funds to another purpose; for an appropriation of a payment by the debtor need not be expressed in terms. It may be inferred, from the nature of the transaction, that he intended its application to one account specifically. Pitman on Surety 161. A remittance by an officer who, during his term, has given a new bond, with new sureties, made by him thereafter in the regular course of business, and of funds collected by him in his official capacity, without any directions how the
On the other hand, it was the opinion of Mr. Justice Story, that a contest between two sets of sureties on official bonds made to the government, with respect to the application of payments by their common principal, was to be decided upon the same principles that govern between private individuals. Postmaster General v. Furber, 4 Mason 333. This opinion was deliberately formed after a review and examination of the case of’United States v. January, and a re-statement of what was there decided by the Supreme Court of the United States, and was repeated in the subsequent case of United States v. Wardwell, 5 Mason 82. A case decided in New York, reported in the Supreme Court, under the name of Seymour v. Van Slyck, 8 Wend. 403, and in the Court of Errors, under the name of Stone v. Seymour, 15 Wend. 19, is
The decisions of the English courts are to the same effect. In Attorney- General v. Manderson, 12 Jur. 383, the suit was against the defendant as surety for one Grignon, a collector of duties, on a bond dated the 16th of May, 1842. Grignon had been collector for the preceding years of 1838, 1839, 1840, and 1841, and was in default for the years 1838, 1840, and 1841, in £4448 15s. 6d. On the 23d of August, 1842, Grignon transmitted to the receiver-general £5000, which, it was proved, had been collected upon the assessment rolls of 1842. The court charged, “ that if the jury was satisfied that the sum of £5000 had been remitted out of the taxes for 1842, and that Grignon had not expressly assented to the appropriation of that amount by the receiver-general towards the payment of the arrears of 1841, they should find for the defendant.” On appeal, the judgment was reversed, for error in the charge, the court holding that there being a general right of appropriation in the receiver-general, he.had a right
The most recent case in the English courts, is Gwynne v. Burnell, in the House of Lords, reported in 7 Cl. & Fin. 572. A report of the same case in the Exchequer Chamber, will be found in 2 Bing. N. C. 7, and in the Court of Common Pleas, in 9 Bing. 544, under the title of Collins v. Gwynne. The action was in debt, on a bond, entered into by the defendant as surety for one Bigg, a collector of taxes for the year 1828, ending April 5th, 1829. The jury, as a special verdict, found that Bigg had paid over to the receiver-general all the sums received by him for assessments for the years 1828-9, but that he did not pay in all such sums to the service of that year, the sum of £2430, only, having been paid by Bigg to the service of that year, and £6093, the residue of the sums so received, having been expressly paid by him to the service of former years, for which he had also been collector’, but the defendant had not been his surety during those former years. The case was heard in the Common Pleas, on the special verdict, before a full court, and in the Exchequer Chamber before seven judges. In the House of Lords, nine judges attended, and delivered opinions, and the decision was by Lord Brougham and Lord Chancellor Cottenham. On the point for which this case is cited, there was a concurrence of all.the judges, comprising almost the entire judicial force of England. The argument of the counsel of the surety was, that enough having been collected and paid in by Bigg, during the year, to exempt the surety from all liability in respect of his bond, Bigg could not, by paying in, nor ■could the commissioners, by receiving payment of sums collected in that year, but assigned, by direction of Bigg, to the account of a different year, impose upon the surety a liability which he had never undertaken to incur. But the judgment ■of the courts was, that the breach of the condition of the bond was complete, and the surety was liable, though all the moneys collected in the year for which he was surety, were, in fact, paid in, if any part of them was appropriated by the
It was argued that the decision in Gwynne v. Burnell was not applicable to this case, for the reason that the condition of the bond was special, and different from the condition of the defendant’s bond. I fail to see the force of this argument. The. condition is printed on page 590 of the report, in Cl. A Fin. The clause chiefly adverted to by the judges, in their opinions was, “that he should well and truly pay, or cause to be paid, unto the receiver-general of the taxes, rates, and duties for the said county of E., all such sum and sums of money as shall come to the hands of A. B., as such collector, upon the days and at the times by the said acts appointed for the payment thereof, and according to the true intent and meaning of the said acts.” It appeared in the case, that the collector did pay to the receiver-general all sums of money collected by him for that year, at the proper days and times mentioned in the condition, and appointed by the acts of parliament for the payment thereof. The breach relied on was, that he applied them in making payments in satisfaction of arrears due from him in former years, instead of paying them on the account of which they were collected, as he should have done in the performance of official duty. Bearing in mind that the subject of discussion is the power of a collecting officer to apply the proceeds of his collections to the payment of former arrears, and to impose a liability on his sureties for a deficiency arising from such wrongful appropriation, this case is a direct authority, squarely on the matter in controversy. Payment in extinguishment of former arrearages was declared, by the judges, to be as much a breach of duty and a forfeiture of the bond, as if it had been made “ to pay any other debt, contracted at any other time or in any other manner,” or “on any private account, to the receiver-general, or to any other person,” or “ as if the money had been lost at the gaming table.” Baron Parke
The condition of the defendant’s bond (inter alia) is, that the treasurer shall well, honestly, and faithfully perform all the duties of his office. Some of the duties of the office are specifically prescribed by statute; others result from the nature of the office and the duties incident thereto. The treasurer is alone authorized to receive the moneys due the state, and he is the sole official custodian of the public funds. As treasurer, he is under a duty to refrain from the waste, •embezzlement, and improper appropriations of the moneys of the state, as well as to answer for the waste, embezzlement, and improper appropriation by those employed by him, and is also under an obligation to keep the public moneys, and deliver to his successor such of them as have come to his hands, and have not been drawn from the treasury in the manner and with the vouchers prescribed by law. To secure the performance of these duties, the particular requirements of the statute, with respect to the manner in which the treasurer should receive, account for, and keep the public moneys, were designed.
The conduct of Sooy, throughout the whole of these transactions, was in flagrant disregard of his official duties. The taxes received by him were due the state under the act relating to transit duties, (Laws, 1869, p. 226,1 and were payable in quarterly payments, on the last days of March, June, •September, and December, in each year, and should have been received only on receipts countersigned by the comptroller. They were received by Sooy in instalments, in anticipation of quarterly payments not yet matured, and without the concurrence of the comptroller. The moneys received in April, May, and June, and described as the taxes due for those months, were received in anticipation of the quarterly instalment to become payable on the 30th of June, and
We think that the defendants, as sureties, are liable for all the moneys received after their bond was given, and that they cannot relieve themselves from this liability by showing that their principal used such moneys, or a portion thereof, to satisfy past delinquencies to the state. To permit the acts of the treasurer in that respect, to have the effect of an exoneration of his sureties from responsibility, would, under the circumstances of this case, be to allow them to make a shield and defence of the fraudulent conduct of an officer whose honest and faithful discharge of the duties of his office they had guaranteed.
Judgment should be entered on the special verdict, in favor of the state, for the sum of $44,116.64, with interest from October 25th, 1875.
