38 Ind. 483 | Ind. | 1872
The assignment of errors presents for our consideration and decision a large number of questions, .but there is one leading and important question, the decision of which will be decisive of the cause. We shall not consider, in their order, the various questions that have been argued with so much ability by the counsel engaged in the cause, but we shall only state so much of the pleadings and the facts as shall be necessary to present, in an intelligent manner, the controlling and decisive question in the cause.
“No. 8. $630.79.
Trustee’s Office, Madison Township, \ Jefferson County, Ind., April 9th, 1868. J
“ This certifies that there is due to the National Branch Bank of Madison, from this township, six hundred. and thirty dollars and s^&renty-nine cents, for money advanced to road and special school funds of Madison township. Payable ninety days after date. W. C. Steinback,
“ Trustee of Madison Township.”
Fowler, as township trustee, paid to the bank the amount of the note which had been given by Steinback, on the 9th of April, and this action was brought by him to recover the amount from Steinback and his sureties on his official bond. It is very clearly shown that Steinback, during his term of office, applied over nine hundred dollars of money belonging to the township to his private uses; that during his term of office he paid on township liabilities all of said money which he had misapplied except three hundred and seventy-six dollars; and that his sureties, after he had gone out of office, paid three hundred and sixty-five dollars, leaving due eleven dollars.
We are very clearly of the opinion that the sureties of Steinback cannot be held liable for the misapplication of public funds which were subsequently, but before the commencement of this action, repaid by him. It surely can; make no difference how he acquired the money with which he repaid the money that he had converted to his own use. If he had acquired the money dishonestly, and the township had received and retained the money, there could be no liability on his official bond. It would amount to a satisfaction and discharge of his liability. It was held by this court, in Cook v. The State, 13 Ind. 154, that where a treasurer was his own successor, and was a defaulter at the end of his first term, and, after he had qualified under his second term, he used funds which came into his hands during his second term to pay the balance against him at the end of the first, the sureties under the first bond were discharged, and those under the second were liable.
He discharged the liabilities of the township by checks on the National Branch Bank of Madison.- The checks were paid by the bank, and it can make no difference whether the bank paid the checks upon the personal liability of Stein-back, or on the credit of the township, or through ignorance of the fact that he had overdrawn his deposit account. Under the facts of the case, the bank had no right to rely upon the liability of the township. The bank account was with Steinback individually, and not as trustee; and if the- bank permitted him to overdraw his account, it must look to him, and not the township. There was no. liability on the part of the township. The bank is entitled to no equitable consider
We are next to inquire whether the obligation executed by Steinback, as trustee, on the 9th day of April, 1868, created a valid and legal liability against the township. The solution of this question will depend upon the answer to be given to two other questions; first, was Steinback at such time trustee of Madison township ? If he was trustee, had he the right to execute the note, and thereby create a legal liability against the township?
It is provided by the 5th section of the act (approved February 18th, 1859,) in reference to civil townships, that the trustee “shall hold his office for one year, and until his successor is elected and qualified.” 1 G. & H. 637.
Section 3 of article 15 of the constitution reads as follows: “ Whenever it is provided in this constitution, or in any law which may be hereafter passed, that any officer, other than a member of the general assembly, shall hold his office for any given term, the same shall be construed to mean, that such officer shall hold his office for such term, and until his successor shall have been elected and qualified,” 1 G. & H. 54.
It is further provided in the 5th section of the above recited act, in reference to a township trustee, that, “before entering upon the duties of his office he shall take an oath or affirmation before some person authorized to administer the same, for the faithful performance of those duties, and execute a bond conditioned as in ordinary official bonds, with at least two freehold sureties, in a penalty of not less than double the amount of money which may come into his hands at any time during his term by virtue of his office, to the acceptance of the county auditor.”
The sureties of Steinback were only liable for his acts
But if the position assumed was correct, it would not create any liability against the sureties of Steinback. The condition • of their bond was, that they would be responsible for the acts of Steinback for one year, and until his successor was elected and qualified, and their liability ceased at the moment of time when the liability of the sureties upon the bond of his successor commenced. If no successor had been elected to Steinback, or if Fowler, after having been elected, had failed to qualify, Steinback would have continued to be an officer de jure, and his sureties would have been liable for his acts.
Having reached the conclusion that Steinback ceased to be an officer de jure, and that the liability of his sureties terminated when his successor was qualified, it is not necessary for us to determine in what character he acted from the time when his successor was qualified until he got the possession of the books of the office and entered upon the discharge of the duties of such office.
But in support of the proposition laid down, that Stein-back ceased to be an officer de jure when his successor was
The true distinction between officers de jure, de facto, and a mere usurper, is well stated in Plymouth v. Painter, 17 Conn. 585, where the court say:
“An officer de facto is one who exercises the duties of an office, under color of an appointment or election to that office. He differs, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without any color of right; and, on the other, from an officer de jure, who is, in all respects, legally appointed and qualified to exercise the office. These distinctions are very obvious, and have always been recognized.”
Again, it is said: “ It is a well settled principle, that the acts of an officer de facto are valid, so far as the rights of the public or third persons who have an interest in the acts done are concerned; and that the title of such an officer, or the validity of his acts as such, cannot be indirectly called in question in a suit to which he is not a party; and this principle applies as well to judicial as ministerial officers. This doctrine has been established from the earliest period, and repeatedly confirmed, by an unbroken current of decisions down to the present time.”
Again, it is said: “The acts of a mere usurper of an office, without any color of title, are undoubtedly wholly void, both as to individuals and the public. But where there is a color of lawful title, the doings of, an officer, as it respects third persons and the public, must be respected, until he is ousted on a quo warranto, which is the appropriate proceeding to try the validity of a title to an office, and in which it would be necessary for him to show a complete
The fact that the acts of an officer de facto are valid as to the public and third persons, in no manner affects the question of the liability of the sureties on the official bond of Steinback. If we are correct in the views expressed, Stein-back had no sureties for any act done subsequent to the time when Fowler qualified. It frequently happens that a person who acts as an officer de facto has no bond or sureties. Brown v. Lunt, 37 Maine, 423, and authorities cited.
We are of the opinion that Steinback had no power or authority as an officer de jure to create any liability on the township on the 9th day of April, and that, consequently, his sureties are not liable for such act.
We do not deem it necessary to decide whether, and for what purposes, a township trustee may lawfully borrow 'money on the credit of the township; but, conceding that Steinback was an officer de jure, and had the right to borrow money on the credit and for the use of the township, on the 9th day of April, 1868, we are unable to see how this would better the condition of the appellee; for surely he would have no right to borrow money on the credit of, or create any liability against, the township for his own private purposes. The transaction amounted to that, and no more. The trustee appropriated to his own use public funds; he repaid the sums thus dishonestly appropriated by money obtained from the bank on his private checks. By so doing, he discharged his liabilities to the public and released his sureties, but created an individual liability to the bank; and after his term of office had expired, he attempted to pay his individual debt by creating a liability on the part of the
There is and can be no question as to the liability of Steinback; and we are equally well satisfied that his sureties cannot be held liable for any act done by him after the expiration of his term of office.
We are satisfied that the court erred in overruling the motion of the appellants for a new trial, at least so far as the sureties are concerned.
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to grant a new trial, and for further proceedings in accordance with this opinion.