Brewer v. King's Sureties

MANNING, J. John R. King was elected, in November, 1871, tax-collector of Sanford, now Lamar county ; and the defendants in this cause became his bondsmen for the faithful discharge of the duties of the office. The election was had under the act of 1868, “to regulate elections in this Stateaccording to which, a tax-collector was to be elected, in each county, on the first Tuesday after the first Monday of November in the year 1871, “and every three years thereafter.” — Acts of 1868, p. 272, § 8. Defendants are sued for taxes collected by King, after the election, in November, 1874, of another person as tax-collector of that county, and between that time and the second Monday in April, 1875; and they deny liability. King is not a party to the cause, process not having been served on him. The decision of the case involves a consideration of the meaning and effect of some provisions of the Code, and of the act of December 17, 1873, “relative to the term of office of the several tax-collectors of this State.” — Acts of 1873, pp. 36-7. By the first section of this act, it is declared, that the tax-collectors to be elected in November, 1874, and every three years thereafter, should “severally enter upon the discharge of their official duties, on the second Monday in April next succeeding their electionand the second section “enacted, that -the term of office of the several tax-colleetqrs of this State, now in office, shall continue until the second Mon — 515 — day in April, 1875 ; provided, that such tax-collectors shall execute bonds, with sufficient securities, in the form now prescribed by law, for the faithful discharge of their duties ' as such during their respective terms of office as hereby extended ; and that all laws and parts of laws, in conflict with the provisions of this act, be, and the same are hereby, repealed.” King did not give a new bond. There being no express declaration by statute, prescribing what the term of office of a tax-collector, chosen by the people in 1871, should be, and provision being made for the election of his successor “three years thereafter,” the person then elected would be entitled to give bond, and take the oath of office, immediately afterwards, and thereupon become tax-collector in King’s stead. — Cordiell v. Frizell, 1 Nevada, 180. Hence, according to law, as it existed when the bond here sued on was executed, his term of office — that during which his sureties agreed to be bound for his official conduct — was a term of three years. But, it having been enacted, by the subsequent statute of 1873, that the person elected to the same office in November, 1874, should enter upon the discharge of its duties in April, 1875, he was not entitled to do so, and his term of office would not begin, before that time.- — Cordiell v. Frizell, supra. Wherefore, by the second section of that act, the legislature undertook to extend the term of his predecessor, then in office, over the intervening period; adding to the enactment, for that purpose, the proviso above set forth. This was, in effect, the creation for him of another term of office of that length. Were the obligations of the sureties, upon the bond executed in 1871, continued thereby beyond the term for which their principal was elected, and through this additional period ? Manifestly not, unless certain provisions of the Code, under and in comformity with which their bond was executed, and by which it must be-interpreted, show that they consented to such an enlargement by statute of their liability. The legislature could not, otherwise, change the obligations of their contract, or create new ones, any more than it could abrogate or impair those of a •contract between individuals. — See United States v. Kirkpatrick, 9 Wheat. 720. By the condition of the bond in this case, conforming to section 157 of the Revised Code (Code of 1876, § 163), the obligors engaged that King should faithfully discharge the duties of his office “during the time he continues therein, or discharges any of the duties thereof.” And by section 169 of the Revised Code (Code of 1876, § 179), it is declared: “Every official bond, executed under this Code, is obligatory — 516 — on the principal and securities thereon: 1. For any breach of the condition, during the time the officer continues' in office, or discharges any of the duties thereof. 2. For the faithful discharge of any duties which may be required of such officer, by any law passed subsequently to the execution of such bond, although no such condition is expressed therein. 3. For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” The sections cited, it will be observed, are not confined to tax-collectors. They relate to all public officers. Clause 3, last above quoted, is not concerned in the present inquiry.Why the second clause, next preceding that, was incorporated in the statute law, is easily perceived. In the exigencies of society, new interests arise, and services in respect of them become necessary, the performance of which can, most conveniently and properly, be imposed upon existing officers : while, ordinarily, their sureties wrnuld not be liable for the faithful discharge of duties which did not belong to the office when they.became such, unless such liability were distinctly assumed by them when they executed the bond. But the duties here referred to are those which may be annexed to the office, to be performed during the continuance of the term. They are new, or additional duties, appropriate to the office, not the same that originally pertained to it, and an extension by statute of the obligation of the bondsmen for the performance of them through a longer period than the term for which the officer was elected. — Mayor of Camb. v. Dennis, Ell., Bl. & El. 660. The 1st clause next preceding that just mentioned, of section 179, is the one to be chiefly considered. By declaring the obligors liable for any breach of the condition, “during the time the officer continues in office, or discharges any of the duties thereof,” it may have been intended to recognize his right to resign, and discontinue the discharge of such duties, and the State’s right to remove and dismiss him according to law; after which, the liability of the bondsmen should cease, although his term of office had not run out. So, if, while in office, he had begun the execution of some duty, which was not finished when his term expired, it would be his right, under the law, to complete, after the term was ended, what was thus begun during its continuance. Or the officer might be authorized by law to hold over, during the short time after the election of his successor, which the latter might need to enable him to give the bond and take the oath of office. In which latter cases, the — 517 — sureties would continue bound for the acts of their principal during that interval. There is thus a field for the operation of this clause, without supposing with the Attorney-General, that it was the purpose to secure thereby to the State the right, by a subsequent act, to extend the obligations of the sureties, through another term of office, long or short, with which the legislature might undertake to invest their principal. If it was intended to secure to that body such authority as this, it is not to be supposed that a provision of so much importance, and which could be so easily expressed in plain words, would not be declared in unmistakable language. To hold that the words used conceded to the legislature the power to bind King's sureties for another term of office of five months, conferred by it upon him, would be an admission that it might, by successive enactments, continue him in office five years, or fifteen years longer, if the constitution did not hinder; and that the sureties would be as much bound for the prolonged period, as for the shorter one. As was said by Oh. Justice Beasley, of New Jersey: “I know no case, in which such an amplitude of responsibility has been thrown upon a surety, except when the terms of the obligation would admit of no other result.” — Citizens’ Loan Association v. Nugent, 11 Vroom, 215. The interpretation contended for is not reconcilable with the rule for the construction of such clauses, established by the decisions in Lord Arlington v. Merricke (3 Saund. 403), and the numerous cases following it; according to which, provisions of that kind (and whether in statutes, or the conditions of bonds, their meaning is just the same), must be understood as restricted by the nature and duration of the offices to which they relate ; or, to be more precise, though the obligatory words be “so broad that, intrinisically considered, they covenanted for the good behavior of the principal obligor, during the whole period of bis remaining in the designated office, nevertheless the efficacy would be restricted to his current term, when such term was for a determinate period.” — Mayor v. Crowell, 11 Vroom, 207. “Can we say,” asked Manseield, O. J., concerning the sureties in another case of the kind, “that they intended to be bound for an indefinite period ?” — See, also, Liverpool Water-Works v. Atkinson, 6 East, 507; Wardens, &c. v. Bostock, 5 Bos. & Pul, 175; Leadley v. Evans, 2 Bingh. 32; Peppin v. Cooper, 2 B. & Ald. 431; Kiton v. Julian, 4 El. & Bl. 854; Com. v. Fairfax, 4 Hen. & Munf. 208; Munford v. Rice, 6 Munf. 81; State v. Wyman, 2 Gill & J. 254; Welch v. Seymour, 28 Conn. 387; Chelmsford v. Demarest, 7 Gray, 1; Dover v. Twombley, — 518 — 42 New Hampshire, 59; Bramford v. Iles, 3 Wels., Hurl & G. 380. There are two limitations, within which the bondsmen of a public officer, who is elected for a term of service prescribed by law, certainly understand that they are impregnably intrenched, and beyond which their' liability can in no event be carried. One of these limitations is of the amount, the total sum, which shall be the extreme measure of their responsibility : and the other is of the time during which they shall be answerable for any official misconduct, neglect, or default of their principal. Their engagement is to the amount of the penalty written in the bond, and for the term of office prescribed by law, and goes no further, unless it be plainly declared. that it shall. These land-marks of their liability are of so great importance, that not even the legislature may remove them, without the consent, clearly secured, either in advance or subsequently, of the bondsmen themselvesi We do not find it given in the clauses of the Code, which are relied on as showing it. On the contrary, it would seem that the enlarged responsibilities which they, and especially clause 3, above quoted, impose on the sureties, disclose good reasons why these limitations of time and amount, which appear to us to be essential parts of their contract, should be the more carefully maintained. The statute of 1873 itself recognizes Such limitations, in expressly requiring, by its proviso, a new bond to cover the duties of the term as extended. For the effect of such a provision, notwithstanding the express enactment by clause 2 above quoted, in respect of duties imposed on the officer during his term, by acts passed after execution of his bond, see Morrow v. Wood, 56 Ala. 1; also, U. S. v. Cheeseman, 3 Sawy. 424; Commonwealth v. Toms, 45 Pa. St. 408. Let the judgment of the Circuit Court be affirmed. BRICKELL, C. J. I cannot assent to this opinion. My view of the question may be found in the case of Morrow v. Wood, 56 Ala. 7. I do not think there is any obscurity, or ambiguity, in any clause of section 179 of the Code of Í876; and its manifest purpose is, to impose a liability on the principal and sureties .in every official bond — 1. “For any breach of the condition, during the time the officer continues in office, or discharges any of the duties thereof. 2. For the faithful discharge of any duties which may be required of such officer, by any law passed subsequently to the execution of such bond, although no such condition is expressed therein.” It is not allotoable to interpret what has no need of interpretation. No other field of operation, for these clear — 519 — statutory provisions, need be sought, than that which they so clearly express.