Broad v. City of Paris

Robertson, Associate Justice. The bond in suit is conditioned as prescribed by law for the security of the general revenues of the city. Article 365, R. S. Its terms are broad enough to cover the treasurer’s defalcation as custodian of the school fund. It is claimed, however, that its scope is limited by the statute, which authorizes the city to assume control of the free schools. The law conferring this authority is contained in chapter 3 of title 78, of the Revised Statutes. It is there provided that the treasurers of cities having the management of the schools shall have the same powers and perform the same duties as are herein prescribed for county treasurers, so far as the same.are applicable. Article 3791. A sub-division of the same chapter, (articles 3725 to 3732, inclusive,) is entitled ‘ ‘ duties of the county treasurer pertaining to the school fund.” Instead of repeating so much of this sub-division as could be applied to city treasurers, these articles, as far as applicable, are referred to as defining the powers and duties of city treasurers. The only one of these articles prescribing a duty, eo nomine, is 3728, in this language: “Within twenty days after the receipt of his certifi [121] cate of election, it shall be the duty of the county treasurer to execute a bond, with two or more good and sufficient sureties, for the faithful performance of his duties under this chapter.” The next article prescribes the conditions and the means of fixing the amount of the bond. There can be no difficulty in applying these directions to the city treasurer. The bond required is in addition to the general official bond, and it is the special security required for the custody and disbursement of the special fund entrusted to the treasurer by this chapter. It is contended that giving this bond is not a duty within the meaning of the word, as used in article 3791. The usual scope of the term would probably not embrace this act; but in this law, giving the bond is prescribed under the head of duties etc., and is prescribed as a duty. These provisions, in effect, define the word as used by the legislature in this chapter. These considerations lead unavoidably to the conclusion that it was intended that the safe-keeping and disbursement of the school fund in cities having charge of the public schools, should be secured by a special bond. The officer is not trusted upon the faith or responsibility of the general bond. Construing together the laws requiring the two bonds, it seems to us clear that the sureties on the general bond cannot be made liable for a defalcation in the special fund. Henderson v. Coover, 4 Rev., 429; State v. Bradshaw, 10 Iredell’s Law, (N. C.) 229; Brandt on Suretyship, etc., sec. 473. The view taken by the court below that the reports of the officer were prima facie, and not conclusive evidence against the sureties, is sustained by the weight of authority, and is believed to be supported by the better reason. See note to Boone County v. Jones, 37 Am. Rep., 234, where cases are collated; Wharton on Ev., sec. 22. The case was tried below without a jury, but the findings of fact do not distinguish the funds in the deficit, and are not adapted to a final disposition of the case on this appeal on the defendant’s liability.as held in this opinion. The judgment is reversed and the cause remanded. Reversed and Remanded. [Opinion delivered April 23, 1886.]