State v. Wells

8 Nev. 105 | Nev. | 1872

By the Court,

Whitman J.:

This action is on the official bond of Wells, defendant; and from the judgment of the district court the sureties appeal. About the facts there is no dispute. There being a vacancy in the office of district attorney of Ormsby County, caused by tbe resignation of Denson, Wells was appointed in December, 1868, to fill the same, and bis official bond was conditioned for faithful performance during incumbency. No term is indicated by tbe bond itself; but it is claimed by respondent that tbe law fixes it in this way: By general statute, district attorneys are elected every two years; that in tbe event of vacancy tbe county commissioners may appoint, and tbe appointee bolds for tbe unexpired term; that tbe general election occurred in November, 1868,' Wells was appointed in December following; that tbe only vacancy to be filled was of one month, as tbe person elected in November must take office in January, 1869; and that in any event a new term then began, and so tbe contract of tbe sureties was only for tbe month of December, 1868; and that they can only be bound for any breach therein occurring; while that assigned by tbe complaint, and 'found by tbe district court, is a defalcation generally between tbe seventh day of December, 1868, and tbe thirty-first day of December, 1870.

Tbe statute of 1866, relative to officers, repeals that portion of tbe act of 1865 which provides that any vacancy in tbe office of district attorney shall be filled for tbe “ balance of tbe unexpired term ” by appointment; and in bis case, as in that, of all other county or township officers appointed by tbe commissioners to fill vacancies, such appointment is “.until tbe next general election.”,

This language must be read reasonably. Tbe county commissioners can not, by appointment to fill a vacancy, keep out tbe person lawfully entitled to a new term of tbe office so filled, though be may have been elected before tbe appointment to take possession subsequent thereto. So tbe premises of appellants are practically correct; but tbe conclusion does not necessarily follow.

Although tbe statute makes no provision that tbe district attorney, elected or appointed, shall bold until tbe qualification of a successor, yet be must do so under tbe general rule, as is evidently tbe public policy, simply because tbe presence of such an officer is necessary to tbe proper conduct of tbe public business. Oulton v. Stratton, 28 Cal. 44. So long, then, as Wells held the office continuously, without re-appointment or election, so long were Ms sureties bound. People v. Aikenhead, 5 Cal. 106; Kruttschnitt v. Hauck, 6 Nev. 163.

Even if not in the office de jwe, Wells having gone lawfully into possession' in the first instance was no usurper or mere intruder, but held pfe facto, claiming 'to discharge the duties of the office; therefore his sureties were liable, not only upon general principles, but upon the letter of their bond, as he was the incumbent of the office under any reasonable construction of such contract. State of Nevada v. Rhoades, 6 Nev. 352.

The judgment appealed from is affirmed.