Covington County v. O'Neal

*326 BROWN, Justice. This action is by the County of Covington against the personal representative of a deceased surety on the official bond of the county treasurer to,recover money lost to the county by the alleged devastavit of the treasurer. The complaint consists of two counts. The gravamen of the first count is the failure of the treasurer, to pay to the plaintiff or account for the sum of $35,536.42, which the treasurer had in his possession, and which -sum was lost to the county. The second count avers that the treasurer, G. M. Turner, “on, to-wit October 1st, 1932, had on deposit in Andalusia National Bank, of Andalusia, Alabama, and to’ his credit, as Treasurer of Covington County, Alabama, the sum of $35,546.32, which sum of money belonged to the plaintiff; that the said G. M. Turner deposited said money in said bank without authority of law and that as a result of the failure of said bank on or about October 1st., 1932, the said sum so deposited was lost to the plaintiff.” The pleas referred to below appear in the Reporter’s statement of the case. The defendant’s pleas -2, 3, 4 and 5, set up the statute of non-claim, section 5815, of the Code 1923. Pleas 6, 7 and 8, set up the appointment of said Turner as “acting treasurer,” under the provisions of section 322 of the Code, 1923, the order of the court of county commissioners making the appointment, and directing the deposit of the funds of the county in the Andalusia National Bank, and the provisions of section 323 of the Code,- which provides that: “All acts required by law to be performed by the county treasurer, outside of the receipts and disbursements of the county funds, shall be performed by the president of the board of revenue or court of county commissioners of the county.” [Italics supplied.] The overruling of the plaintiff’s demurrers' to these pleas, superinduced the non-suit, and this appeal. The appellant’s first, contention is that the county being a governmental agency is within the protection of the maxim Nullum tempus occurrit reipublicae— No time runs against the commonwealth or state. This question as applied to a claim of the County of Montgomery against the City of Montgomery for money gathered by taxation under § 215 of the Constitution as a special road tax, was fully considered in Montgomery County v. City of Montgomery, 195 Ala. 197, 70 So. 642, and decided adversely to the present contention of appellant. The next contention is that the statute of non-claim, § 5815, of the Code, destroys the right — the debt — and that § 100 of the Constitution reads into the statute an exception as to claims in favor of the state, counties and other municipalities. Said Section of the Constitution, declares that: “No obligation or liability of any. person, association, or corporation held or owned by this state, or by any county or other municipality thereof, shall ever , be remitted, released, or postponed, or in any way diminished, by the .legislature; nor shall such liability or obligation be extinguished except by payment thereof; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; provided, that this section shall not prevent the legislature from providing by general law for the compromise of doubtful claims.” [Italics supplied.] Constitution 1901, Article IV, Section 100. In some jurisdictions the' courts hold that statutes of non-claim operate to destroy the claim or debt, and not merely to destroy or withhold the remedy. Such was the holding in State of Washington v. Marvin Evans, 143 Wash. 449, 255 P. 1035, 1036, 53 A.L.R. 564; the court in that case observing: “Thus we think there is evidenced a legislative intent to not merely withhold the remedy, but to take away the very right of recovery out of the property left by a decedent, by failure on the part of a claimant to present his claim as our statute provides.” In other jurisdictions the courts hold the statute relates to and only affects the remedy. United States v. H. F. Backus, 1855, Fed.Cas.No.14,491, 6 McLean 443. There it was observed: “The eighteen months *327 given for the adjustment of accounts against the estate of the deceased, relates to the remedy, and cannot apply to a demand of the federal government.” It has by this court, since the case of Evans, Adm’r, v. Norris Stodder & Co., 1 Ala. 511, been consistently held that a failure to comply with the statute of non-claim is a defense which, like the general statute of limitations, must be specially pleaded, and when pleaded, because it presents a negative defense, it casts the burden on the plaintiff to prove compliance. Thrash v. Sumwalt, 5 Ala. 13 (19); Mitchell et al., Adm’rs, v. Lea, Adm’r, 57 Ala. 46; W. L. Weller & Sons v. Rensford, 185 Ala. 333, 64 So. 366. In Doe ex dem. Duval’s Heirs v. McLoskey, 1840, 1 Ala. 708, the court held that the debt secured by mortgage was not extinguished, but only its recovery barred by failure to comply with the statute of non-claim, and therefor the lien of the mortgage was unimpaired, and unless the estate of the decedent was looked to for the deficiency, a presentation of the claim was not necessary. Section 100 of the Constitution prevents extinguishment of the claim — the debt — but does not affect the power of the Legislature to provide for limitations in the interest of repose. This power may be applied against the state and its agencies notwithstanding § 100 of the Constitution. State v. Acacia Mut. Life Ass’n, 214 Ala. 628, 108 So. 756. The plaintiff county, taking the averments of the pleas tó be true, at the time the alleged liability occurred, was in that class of not more than 55,000 population, and was subject to the provisons of Article 2 of Chapter 17 of the Code, including §§ 322 and 323, and the appointment of said G. M. Turner, made by'the court of county commissioners was an emergency appointment made in the exercise of the powers conferred on the court of county commissioners by said. § 322, which provides: “If the board of revenue or court of county commissioners are unable to designate any depository for the county funds in their county by reason of their inability to secure from any bank within its limits terms for the handling of the county funds as provided in this article, satisfactory to such boards of revenue or courts of county commissioners, then such boards may designate some individual who nmy act as treasurer of such county under such terms and conditions as may be fixed by said courts of county commissioners or boards of revenue.” Jenkins v. State ex rel. Watson, 219 Ala. 554, 123 So. 31. [Italics supplied.] And Section 323 provides: “All acts required by law to be performed by the county treasurer, outside of the receipts and disbursements of the county funds, shall be performed by the president of the board of revenue or court of county commissioners.” [Italics supplied.] It is well settled that the surety on the official bond of a county treasurer is liable for his omission or the breaches of his statutory duties. Townsend and Gordon v. Everett, use, etc., 4 Ala. 607. Also, in determining the liability of sureties on official bonds the statutes prescribing the duties of the particular officer will be read into his official bond. State v. Alabama Power Co., 230 Ala. 515, 162 So. 110; National Surety Co. v. State et al., 219 Ala. 609, 123 So. 202. Applying this rule of interpretation to the official bond of G. M. Turner as acting treasurer, liability of the surety could only arise out of a negligent or wrongful failure to receive or a wrongful appropriation or disbursement of the funds of the county, and although the court of county commissioners, in his selection and appointment must be treated as a statutory body of limited powers, the statute expressly conferred on that body power to fix the “terms and conditions” on which he accepted the appointment, and the requirement that he receive and deposit the money in the designated bank was clearly within this power. Therefore, if as alleged in special pleas 6, 7 and 8, he deposited the money in said bank in accordance with the order of the court of county commissioners, and it was lost to the county through no fault of Turner, the surety on his official bond is not liable. Lewis v. Lee County, 66 Ala. 480; Rushing v. Alabama Nat. Bank, 226 Ala. 621, 148 So. 306. A like question was considered by this court in Pickens County et al. v. Johnson, 227 Ala. 190, 149 So. 252, and again in Pickens County et al. v. Williams, Superintendent of Banks et al., 229 Ala. 250, 156 So. 548, and the questions were treated and disposed of, apparently, without considering the effect of § 323 of the Code, relieving the acting treasurer of the duty of safely keeping the county’s funds, while they *328 remained on deposit in the designated hank, and imposing that duty on the county hoard. These cases on this point are overruled. Affirmed. ANDERSON, C. J., and GARDNER, THOMAS, and FOSTER, JJ., concur. BOULDIN, J., is of opinion that the decisions in Pickens County et al. v. Johnson, supra, and Pickens County et al. v. Williams, Superintendent of Banks et al., supra, as to the liability of the treasurer’s bond, are sound and should not be overruled, and on this point dissents, but otherwise concurs in the opinion.