7 Mont. 417 | Mont. | 1888
This is an appeal from a judgment rendered against the appellant Charles A. Carson, probate judge of Gallatin County, and the other defendants, who were the sureties upon his official bond, for certain money alleged to have been received by him in his official capacity, and unlawfully withheld by him from the county. This judgment was rendered in consequence of an order sustaining respondent’s two motions for judgment on the pleadings; the one being for judgment against the appellant Carson, and the other for judgment against the sureties.
It is claimed that the complaint does not state facts sufficient to constitute a cause of action against the sureties on the bond, for the reason that the suit being brought under what is termed the “ salary law ” of 1885 (div. 5, Comp. Stats., p. 891), and being entitled in the name of the territory of Montana for the use of the county of Gallatin, as that act provides, it should contain an allegation that the defendant Carson had been convicted.of a violation of the provisions of this
Our next inquiry will be directed as to whether or not the facts contained in the pleadings warrant the judgment of the court rendered upon the motions for judgment therein; and the first question here presented is in relation to the liability of the sureties upon the official bond. The appellant Carson entered upon the duties of his office as probate judge of Gallatin County, on the twentieth day of December, 1886, and his official bond was approved and filed on the fourteenth day of December, 1886. This action was instituted under what is generally known as the “ salary law,” to recover from the appellant Carson, and the sureties upon the foregoing bond, a certain sum found by the county commissioners to .be due from him, on settlement for certain money which was collected and received by him as probate judge, for official services rendered by him between the twentieth day of December, 1886, and the first day of September, 1887. This salary law provides for a salary to be paid yearly to the probate judge of Gallatin County, and provides also that “ it is the true intent of this act to limit the maximum annual compensation
Bonds of the character of the one at bar will be pre
* This would be the legal effect of that condition contained in the bond, “ to perform all the official duties now required of him by law.” But at the time the bond was executed, the statute in relation to bounties for killing certain animals, approved March 3, 1883, was in existence, and, as before stated, will be presumed to have entered into the contemplation of the sureties at the time of the execution of the bond. The subsequent statute, amending the foregoing, did not change the nature of the duties of the probate judge in relation to the animals killed in kind, but only in degree. It simply increased the number on the list of animals for the-killing of which a bounty was to he paid, and modified his duties in relation to the disposition of the 'skins. Both these laws related to the same subject-matter, viz., the
A bond given by an officer before a law is enacted imposing duties different, not in kind, but in degree, from those before pertaining to the office may be fairly held to be a security for such additional duties. “ The distinction is between an increase by the legislature of the duties of an office of the same nature or like kind as those before pertaining to it after the execution of the bond, and the addition of new duties, not of the same nature or kind with those before belonging to it..... Every official bond is executed with a knowledge of the right and the practice of the legislature to enlarge the duties of the officer.” Campbell, C. J., in Denio v. State, 60 Miss. 949. This doctrine is substantially maintained by the following authorities: Evans v. City of Trenton, 24
In Evans v. City of Trenton, supra, Potts, J., uses the following language, applicable to the case at bar: “ It is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate compensation for the services. Nor does it alter the case that, by subsequent statutes or ordinances, his duties are increased, and not his salary. His undertaking is to perform the duties of his office, whatever they may be, from time to time, during his continuance in office, for the compensation stipulated, whether those duties are diminished or increased. Whenever he considers the compensation inadequate, he is at liberty to resign. Andrews v. United States, 2 Story, 202; People v. Supervisors, 1 Hill, 362; Bussier v. Pray, 7 Serg. & R. 447; Angell and Ames on Corporations, sec. 317. This rule is of importance to the public. The successful effort to obtain office is not unfrequently speedily followed by efforts to increase its emoluments, while the incessant changes which the progressive spirit of the times is introducing effects, almost every year, changes in the character and additions to the amount of duty in almost every official station; and to allow these changes and additions to lay the foundation of claims for extra services would soon introduce intolerable mischief. The rule, too, should be very rigidly enforced. The statutes of the legislature, and the ordinances of our municipal corporations, seldom prescribe with much detail and particularity the duties annexed to the public offices; and it requires but little ingenuity to raise nice distinctions between what duties may and what may not be-strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuse.”
We are of the opinion,'therefore, that the statute of March 5, 1887, under which the appellant Carson, by reason of his being the incumbent of the office of probate judge of Gallatin County, claims the right to withhold the sum demanded in the complaint, and which was an amendment to the bounty law of 1883, the duties prescribed by which he was required to perform, did not enlarge the duties of the probate judge in kind, but only in degree; and under the foregoing principles of law, he is liable therefor, as well as the sureties upon the bond. This disposes of the qustions relied upon by the appellants. The motions for judgment on the pleadings against both the appellant Carson and the sureties on his official bond were properly sustained.
The. judgment is affirmed, with costs.
Judgment affirmed.