Town of Gloster v. Harrell

77 Miss. 793 | Miss. | 1900

Lead Opinion

Terral, J.,

delivered the opinion of the court (on the first appeal).

The town of Gloster sued the defendant as sureties of N. Ratcliff, treasurer of said town, on their bond executed in the *795penalty of $3,000 for a sum of money, which it was alleged was received by Ratcliff, as such treasurer, and which he refused to pay over or account for to plaintiff. The declaration alleges that the board of mayor and aldermen of said town fixed the amount of said bond, and approved and accepted the same when executed. Ratcliff did not sign the bond, nor is it averred that he desired the defendants to sign the same as his sureties, or that he knew of its execution by them. Harrell and his co-defendants demurred to the declaration for many causes, and among them: (1) Because said bond is not required by any statute of the state, or any. ordinance of said town; (2) because the legislature alone, and not the municipal corporation, could fix the penalty of official bonds; (3) because said bond was not signed or adopted by Ratcliff as his official bond; (4) because no cause of action is stated in the declaration. The court sustained the demurrer, and dismissed the case from court.,

If it is necessary for the validity of any official bond, under § 82 of the state constitution, that the' legislature fix the penalty of it. we think it is not so in the present case. We think that section of the constitution does not apply to the bonds of officers whose offices are created by the legislature. Sec. 3055, annotated code, provides that “all official bonds shall be valid and binding, if delivered as the official bond of the officer and serving as such, and shall be obligatory on all who subscribed it for the purpose of making the official bond of such officer; and it sufficiently appears from the declaration that the defendants executed the instrument sued on as the official bond of Ratcliff, and that they delivered the same as such, and that it was so accepted. The allegations of the declaration bring the defendant within the very letter of § 3055, code, and the defendants must be taken as bound by said bond.

The judgment of the circuit court is reversed} and the case is remanded for a new trial.

Theodore McKnigM, for appellant, on second appeal. The receipt warrants provided for by code 1892, § 3027, should cut no figure in the case. Surely these warrants were never intended to enable a town treasurer to pocket public funds and escape liability because the officer received the money without them. A peremptory instruction ought to have been given in appellants’ favor. Cassedy & Gassedy, for appellees, on second appeal. The treasurer was prohibited, by code 1892, § 3027, from receiving money from any source until the same had been reported to the clerk and audited and. a receipt warrant issued therefor. These warrants are therefore necessarily the exclusive evidence to charge the treasurer. The tax collector, if sued (and be should have been, rather than appellees, in this case) could not escape liability by showing payments to the treasurer without showing the receipt Avarrants.



Concurrence Opinion

Whiteteui), J.,

delivered tbe following concurring opinion (on the first appeal) :

The contention that there was no law for the election of the “treasurer” prior to the act of 1896 (Laws, 1896, p. 188), amending code 1892, § 2978, is a mistake as to the law, due to the fact that in haying the code published the word “treasurer” was inadvertently omitted in § 2978, following the word “marshal,” in the paragraph of the section specifying the municipal officers to be elected by the people. By reference to the original of the codo of 1892, filed in the office of the secretary of state, we discovered that this omission had occurred. The “treasurer,” therefore (the original code'governing in case of conflict with the printed code), has been elective since the cede of 1S92, under § 2978, as the law really stood.

After the case was remanded to the court below it was there again tried, resulting in a judgment for defendants, from which the plaintiff appealed to the supreme court, the second appeal. The nature of the contentions thereon appears from the opinion of the court delivered thereon.

There was no laAvful approAal of the bond sued upon. Code 1892, § 2992 requires the approval to be by ordinance, and it cannot be done by a mere order or resolution. Nothing is an ordinance that does not conform to code 1892, §§ 3006, 3007 and 3008. Whitfield, C. I.,

delivered the opinion of the court (on the second appeal).

Tt Avas fatal error to hold that the receipt warrant provided for by § 3027, code of 1892, was the exclusive evidence whereby to charge the appellees. It was part of the fiscal machinery devised to be followed in keeping proper record of the town’s moneys, intended for the convenience and protection of the municipality. But it is not the exclusive evidence of the reception of money by the treasurer; the statute does not so provide. Here there Avas sufficient evidence that both the original and duplicate informal receipt given by the treasurer, had been lost, and also of their contents to charge the appellees. It is not for the treasurer, or his sureties, the money of the town being traced to his hands by other competent evidence, to find shelter under the absence of a mere receipt warrant, or the fact that his bond was approved by resolution, instead of ordinance. Neither lie nor they can be heard to make such defense.

Reversed and remanded.