State Ex Rel. County Board of Education v. Bateman

A.VER.Y, J. (after stating the case). By a series of adjudications, extending over more than fifty years, we think that the principles governing this case have been clearly settled. When a law is enacted that imposes the duty of receiving and disbursing a new fund upon the sheriffs or treasurers or other officers of counties, and the statute fails to provide that an additional bond, conditioned for securing the faithful application of such fund, shall be required, any bond given by the officer after the law is in force, though in terms it may provide only for securing the faithful discharge of official duty and accounting for money received by virtue of his office, will be construed to embrace the new duty, and to constitute a security for its performance. State v. Bradshaw, 10 Ired., 229. *55 In that case, the facts were that the Sheriff of Rowan County and his sureties were sued on his official bond, executed in the year 1847, and conditioned that “ he shall pay all money by him received, by virtue of any process, to the person or persons to whom the same shall be due, and in all other things will truly and faithfully execute the said office of Sheriff during his continuance therein.” The defendants, his sureties, were held to be liable for a tax levied by the proper authorities of the town of Salisbury, because an act passed in the year 1827 required the Sheriff of Rowan County “ to collect, pay over and account for the taxes imposed by the Commissioners of the Town of Salisbury, on citizens and property therein,” &c., (but 'did not require a new bond), and the Sheriff had failed to account for tax collected for the town in 1847. In the case of Lindsay v. Dozier et al, Busbee’s Law, 275, the Court held, in effect, that where an officer had given a bond for the faithful discharge of his duties, after the enactment of the law intrusting him with the collection and disbursement of an additional fund, such bond would be deemed a security for the performance of the new dutyr unless the statute imposing it in express terms required a separate bond for the performance of that new duty. The act of 1844 required each county to levy a tax for the common school fund, and the Sheriff was directed to collect it “in the same manner that other county taxes are now levied for other county purposes,” and in the same section it was provided that the bond given by the Sheriff to secure the county taxes “ shall contain a condition for the faithful collection and payment of the school taxes to the person authorized to receive the same.” The Sheriff, Dozier, filed a bond, conditioned only for the collection of all county taxes, and the action brought against him and his sureties on that bond for the school fund, collected by him and not accounted for, was sustained by the Court. *56 On the other hand, where a law charging an officer with a new duty, requires in express terms an additional bond for its faithful performance, or one embodying conditions different from those necessary in that already required, an official default in misapplying funds received by virtue of such statute is not held to be a breach of the bond conditioned for the. faithful discharge of the duties of the office, even when it embraces the new duties only in general and not in specific terms. Crumpler v. Governor, 1 Dev., 52; Governor v. Barr, ibid., 65, and Governor v. Matlock, 1 Dev., 214. Chief Justice RinmN cited these cases in State v. Bradshaw as establishing the rule, “ that the general words in the conclusion of the general bond of the Sheriff did not extend to the public and county taxes ” As a reason for the rule, he says: “The construction was that those words were, upon the intention, not cumulative but special securities, for the revenue of each kind, inasmuch as if it were not so, the interests of the public and private persons would often come in conflict; and indeed the penalty of the bond would often be exhausted by the public leaving nothing, or but little, as a security to individuals.” If we apply the principles stated in and deduced from the opinions referred io, there will be little trouble, in reaching a conclusion as to the correctness of his Honor’s ruling. We are of the opinion that the demurrer should have been sustained. Two bonds were filed by the defendant Bateman on the same day, and containing precisely the same conditions, but different penal sums, and signed by. different sureties. The conditions in both bonds were that the said A. J. Bateman “ shall well and truly account for all moneys that may come into his hands by virtue of his office, and shall faithfully perform all things pertaining to his office required of him by the laws of North Carolina, or any other authority by virtue of said laws,” otherwise to remain in full force and virtue. *57 The Code of North Carolina, vol. 1, ch. 19, § 768, provides that the County Treasurer shall give bond, “conditioned that he will faithfully execute the duties of his office, and pay, according to law and on warrant of the Chairman of the Board of Commissioners, all moneys which shall come into his hands as treasurer, and render a true account thereof to the hoard, when required by law or the Board of County Commissioners.” Section 2554 of The Code provides that -“the County Treasurer of each county shall receive and disburse all public school-funds,” and he is further required to execute a “justified treasurer’s bond,” &c., “conditioned for the faithful performance of his duties os Treasurer of the County Board of Education, and for the payment over to his successor of any balance of school money that may be in his hands unex-pended, &c , * * * and for any breach of said bond action shall be brought by the County Board of Education.” It is almost needless to state that neither of the bonds declare! on in this action purports to have been executed by Bateman and the other obligors to provide for the misapplication of the school fund, received by liim in the capacity of Treasurer of the County Board of Education, and the condition of both are widely variant in form and substance from those prescribed in section 2554. Whether both are so drawn as to substantially meet the requirements of section 766, is a question that we are pot called upon to decide now; but if they are sufficient in form to bind the obligors as to any default of Bateman, acting generally in the capacity of County Treasurer, we must, according to the authorities cited, hold that they are cumulative obligations, and that the sureties, who executed both, are liable only for some default of Bateman as relating to his office as County Treasurer proper, and not as Treasurer of the Board of Education. *58 Indeed, section 2554 requires that the bond mentioned in that section shall be executed before entering upon the duties of his office, and the Board of Education has the right,, if necessary, to require the Treasurer to strengthen it on notice. The plaintiff might have critically examined the obligations filed by Bateman, and have refused to intrust him with the disbursement of school funds until the law had been complied with. The case of- Commissioners v. Magnin, 86 N. C., 285, sustains the view we have taken of this case. The County Treasurer was, by the law then in force (Bat. Rev., §§ 82, 84 and 35, ch. 08), made ea-officio County Treasurer, and as such required to give a bond conditioned for the faithful performance„of his duty as Treasurer of the County Board of Education. The bond, for an alleged breach oí which the action was brought, recited the fact th.it Magnin had “ become disburser of the school money ” by virtue of his appointment as County-Treasurer, and the question discussed by the Chief Justice in that case was, whether the loosely drawn condition, “ to well and truly disburse the money coming into his hands under the requirement of law ” (referring to Magnin as “ disburser of the school money”), could be construed to cover the alleged defalcation in the failure of Magnin to account for and pay over to his successor school funds received by virtue of his office, and the Court held that Magnin was liable. The discussion as to the form i f that bond probably suggested the changes in the law as now embodied in section 2554. For the reasons stated, the judgment is reversed, and the Court below will proceed in accordance with this opinion. Error.