Clay County v. Simonsen

BeNkett, J. The parties in their pleadings do not differ materially in their statement of the facts in this case, and they have presented them in such a way as to have the question of defendants’ liability determined on demurrer. It is not my purpose to notice all the points made in the briefs of counsel, or in the order in which they are furnished, but only such as I deem essential to the determination of the — 424 — case. And I shall first notice the objections to the paper purporting to be the official bond of Simonsen, and on which suit is brought. It is insisted that it is not a voluntary bond, hot such as he could legally be required to execute, for the reason that the penalty ($8,000) is in excess of the statutory requirement, and was extorted under color of office. The first statute enacted in this Territory, relating to the qualification and duties of the judge of probate, was passed at the first session of the Legislative Assembly, and approved April 24, 1862. Section 22 of that actreads as follows: “ The judge of probate shall, before he enters upon the duties of his office, execute a bond to the board of county commissioners of his county in the penal sum of four thousand dollars,’’etc. At the date of the execution of the bond in suit, this was the only statute in existence relating in terms to the bond of the judge of probate, and if defendants’ objection rested solely on this provision, its solution would be freed from'many of the perplexing questions that now environ it; but this officer being charged with the performance of other important official duties, by virtue of his office as judge of probate, makes it impossible to properly construe this provision standing alone, but makes the examination of other statutes necessary in order to determine its true intent, scope and purpose. It is an important fact to be borne in mind, that in the act referred to, entitled “An act to provide for county officers,” no such an officer as that of county treasurer is named among the officers which all organized counties should have, but section 25 provides that “ the several judges of probate shall be county treasurers ex-officio, and shall perform all the duties of that office,” etc. And the “ act prescribing the manner of conducting elections,” etc., passed by the same General Assembly, after fixing the day on which the general election should be held, provides for the election of the following officers: “ that is to say, a Delegate to Congress and other Territorial officers, * * judge of probate, district attorney,” &c., but makes no mention of county treasurer. It must further be borne in mind that at the date of the execution of said bond there was no provision of statute requiring the judge of probate, as such officer, to give any other or — 425 — additional bond for tbe faithful discharge of his duties as county treasurer; and yet we find in the act relating to revenue, passed at the same session, frequent reference to the county treasurer, and his liability on his official bond. What bond can be meant? Counsel for defendants say no bond,- as the treasurer was not required by law to give a bond. If that be so, then all reference to the treasurer’s bond in the Revenue act must be meaningless. Such a conclusion cannot be reached without the most cogent reasons, and after all effort to construe the language, according to the rules of reasonable construction, so as to give it force and effect, has failed. What was the evident intention of the Legislature in requiring a bond from the judge of probate? After a careful examination of all the statutes passed at that same session relating to matters properly cognizable in a probate court, I fail to find a solitary provision making the judge of that court responsible for any money or property, or any mention of his liability on his official bond. Turning again to section 25, chapter 28, laws of 1862, we find the following provision: “ They,” the' several judges of probate, in their capacity as county treasurers ex-officio, “ shall report the amount of county funds in their hands to the board of county commissioners of their respective counties at their annual meeting, on the first Monday in June of each year, and as often thereafter as demanded by them, and disburse the same subject to their order.” Now can it be contended with,any show of reason that the Legislature intended that the bond provided for in section 22, same act, should cover only acts of malfeasance or misfeasance in his office as judge of the probate court, and leave the public revenue coming into his hands as county treasurer wholly unsecured. He was made ex-officio county treasurer— that is, by virtue of his office as judge of probate, by virtue of his election to that office alone, was he authorized and empowered to perform these additional duties and receive therefor the emoluments provided by law. There was no provision for a separate qualification or the execution of a separate bond. When he had qualified as judge of probate, and exe — 426 — cuted the bond required, all the duties, responsibilities and emoluments attaching to that office, under the provisions of the statutes, and clearly contemplated by his election,, came within the purposes of that qualification, and were covered by the conditions of the bond, unless otherwise specially provided, as in the case of the bond of a justice of the peace, the duties of which office the judge of probate also discharged ex-officio. Throughout years of subsequent legislation, and until the Act of January 15th, 1875, the provisions of said sections 23 and 25 remained unchanged (with but one exception which I shall presently refer to) and* in full force. This subsequent legislation included several acts relating to the revenue, covering the acts and responsibilities of the county treasurer, with numerous allusions to his official bond. I am clear in the opinion, that under the law as it then stood, when the bond in this suit was executed, the judge of probate was required to execute but one bond, and according to the rules of reasonable construction, and the intent of the Legislature gathered from the wording of the statute and all kindred enactments, that bond covered his duties as county treasurer, and on it he and his sureties must be held liable for any violation by him of the provisions of the Revenue law. I think but little light would be thrown on this question by an examination of the authorities cited, as the decision of most of the 'cases to which the attention of this court has been called, turned upon the peculiar phraseology of the statutes which the courts were called upon to construe. This prepares us for an inquiry into the objection that the penalty of the bond in suit, is in excess of the statutory requirement. And here again I must ask to be excused from following counsel through all the enchanting labyrinths of legal lore, which they in their able arguments have explored, as I think there is no difficulty whatever in finding a solution of the question in the statute. As above stated the statutes of 1862, providing for the bond of the judge of probate remained unchanged, with one exception, until the Act of January 15,1875. — 427 — In the Eevenue act approved January 12th, 1869, we find the following provision, being section 101: “The county commissioners of any one of the counties of this Territory may require the county treasurer to give.additional freehold sureties, whenever in the opinion of a majority of said commissioners the existing security shall have become insufficient; and said commissioners are hereby also authorized and empowered to demand and receive from said county treasurer an additional bond, as required by law, in such sum as said commissioners, or a majority of them may direct, whenever in their opinion more money shall have passed, or is about to pass, into the hands of said treasurer than is or would be recovered by the penalty in the previous bond.” Here we have the phrases, “ additional freehold sureties,” “ an additional bond,” “the previous bond,” &c. Additional, must presuppose something to which an addition can be made. “Additional sureties,” “ additional bond as required by law,” and “previous bond” must refer to some_bond executed in compliance with the provisions of some statute; and when we come to search for that statute, we find it is the same section 22 of chapter 23, laws of 1862, in which the penalty is fixed at four thousand dollars, a recognition by this General Assembly of the fact that the bond required to be given by the judge of probate covered his duties as county treasurer. Now that being the bond, the board of county commissioners is authorized and-empowered to require an additional bond in such sum as they may direct. And here it may be claimed that this can only be required after the original bond has been executed. But this, I think, would be a very narrow construction. The law does not require vain things, an^ it would be worse than folly to hold that the treasurer must first execute a bond in the penal sum of four thousand dollars, enter upon the discharge of the duties of his office, become possessed of money and property in value, it may be ten times in excess of' the penalty in the bond, before he can be called upon to give the additional .security provided for the protection of the very same funds and property which he already holds and controls. Such a construction might defeat the very object and purpose of this enactment. — 428 — It is in the discretion of the board of county commissioners to demand this additional bond, or, which we hold equivalent, an increase in the amount of the penalty, whenever in their opinion more money shall have passed, or is about to pass, into the hands of said treasurer than is or would be recovered by the penalty in the previous bond. If an additional bond may be required after the treasurer has. executed one, and entered upon the discharge of the duties of his office, a fortiori, may it be done before he qualifies, if in the opinion of the board the sum originally fixed, to-wit: $4,000 is insufficient to cover his probable liability. It may be required before the money passes; when it is about to pass. I find in this provision ample authority given the board to increase the penalty in the treasurer’s bond, or, to speak more accurately, the bond of the judge of probate, in view of his increased liability as ex officio coxmty treasurer, over and above $4,000.00, and it matters not, in contemplation of this statute, whether the security furnished the county is in one, two or three separate instruments, so that the board does not abuse its discretion, and require an unreasonable bond, of which there is no complaint in this case. This view of the case disposes of the point that the bond was not a voluntary bond, but extorted under color of office. The rule is well settled that upon the argument of a demurrer to the answer, the defendant may attack the complaint upon the grounds that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, and if it appears that the objections thus raised are well taken, the defendant will be entitled to judgment, notwithstanding the defects in the answer. (2 Wait’s Practice, 466, and authorities cited.) Under this rule, counsel for defendants have urged various objections to the complaint, the first of which is that there is no breach of the bond sufficiently alleged. The allegation in the complaint is as follows: “ That thereafter, to-wit: on or about the 22d day of January, 1875, defendant R. J. Simonsen resigned his said office to the board of county commissioners of said county, who — 429 — thereupon appointed as his successor in said office, William Shriner; that said William Shriner has long since filed his bond, properly approved as the law directs, and entered upon the discharge of the duties of said office, but that said R. J. Simonsen has failed and refused, and still fails and refuses to account for said money, books, records, papers'and documents, or any part thereof, or to deliver the same to his successor in office, or to any other person or persons authorized by law to receive the same.” The law in force at the time of the alleged breach (§ 36, ch. 4, laws 1868-9) required the county treasurer to render his account to, and settle with, the county commissioners, at the time required by law, and pay into the county treasury any balance which may be due the county. The commissioners might require the treasurer to settle with them at any time, but he was absolutely required to make full and complete settlements at three particularly designated times; these were on the first Mondays of May and October of each year, (§ 80, ch. 25, law’s 1868-9) and a final one on going out of office, when it is made his duty to deliver to his successor in office all public moneys, books, accounts, papers .and documents in bis possession. (§ 98, ibid.) What it might have been necessary for the commissioners to have done, and the complaint to liáve stated, different, had this case originated in one of the semi-annual settlements, or one made or refused on demand of the board, or whether the requirements of the statutes are the same in all cases, it is unnecessary here to discuss. This case is one where the treasurer, on going out of office, has failed and refused to settle and account. There are three acts of omission on the part of the treasurer, specifically mentioned in the statute, (§ 99; ibid) which constitute a breach of his official bond, for any one of which upon its occurrence, suit may be brought. These are: 1, If he shall fail to make return; 2, Fail to make settlement; or, 3, Fail to pay over all money with which he may stand charged, at the time and in the manner prescribed by law. — 430 — The pleadings in this case disclose the fact that defendants Simonsen has wholly failed and neglected to comply with any one of these requirements; he has failed to make return; he has failed to make settlement, and he has failed to pay over all the money with which he stands charged, at the time and in the manner prescribed by law. How do defendants seek to avoid this? 1. On the ground, as alleged, that the board of county commissioners had not' adjusted Simonsen’s accounts as required by statute, and 2, on the ground that there is no allegation in the complaint of any .demand upon the treasurer to report the funds in his hands. Section 37, chapter 4, laws 1868-9 provides that “if any person thus chargeable, shall neglect or refuse to render true accounts, or settle as aforesaid, the county commissioners shall adjust the accounts of such delinquent, according to the best information they can obtain, and ascertain the balance due the county, and order suit to be brought in the name of the county therefor.” This provision makes it the imperative duty of the board to ascertain the balance due the county and order suit brought. How are they to ascertain the balance due, when the person chargeable neglects or refuses to render true accounts? “According to the lest information they can obtain.” Can it be claimed that that information, the source from which it was obtained, the basis on which the computation or calculation was made, with copies of all record entries, papers, vouchers, &c., if any, used or examined by the board in adjusting the accounts, should be alleged and set out in the complaint? Certainly not. The words, “ facts constituting a cause of action,” as used in our Code of Civil Procedure, mean those facts which the evidence upon the trial will.prove, and not the evidence which will be required to prove the existence of the facts. Every fact which the plaintiff must prove, to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred and set forth according to their legal effect and operation, and not the evidence of those facts, nor arguments, nor inferences, nor matters of law only. It is error to assume that there can be no breach on part of the treasurer — 431 — of his official bond, without assistance from the board of county commissioners; it doubtless takes two parties to make a contract, but it requires only one to break it; and section 37, supra, clearly contemplates that the conditions of the bond have already been broken, and directs the commissioners how to proceed — not in the interest of the treasurer, but for the protection of the rights of the public; not for the purpose of perfecting the breach, but to enforce the penalty. As before stated, this action does not originate in one of the semi-annual settlements, or on demand of the board at a time not fixed by statute, but upon the treasurer going out of office, and having failed to make return, failed to make settlement, and failed to pay over the funds with which he stands charged, and to the custody and control of which he no longer has any possible right, he cannot be permitted to treat the matter with such cool indifference, and say to the board: examine my returns, when he has made.none; adjust my accounts, when he has rendered none; count the money due from me to the county, when he has failed to produce it. The object of the statute in directing an adjustment by the board, is that they may be able as far as possible to ascertain the balance due, to enable suit to be brought, and that the proper allegation of liability may be made in the complaint; and it is unnecessary for the complaint to contain any allegation of adjustment by the board, it will be presumed that the bbard took the necessary steps to ascertain the material facts before ordering suit brought, and that could be the only object contemplated. Any adjustment made by the board would not be conclusive, and if suit were brought for more than the amount due it could not prejudice the rights of either party. The second point, that there is no allegation in the complaint of any demand upon the treasurer to report the funds in his hands, is not well taken. Upon going out of office it is made his imperative duty to deliver to his successor in office all public moneys, books, accounts, papers, and documents in his possession. This presupposes a return made by him, an adjustment of his accounts, and settlement with the board. He should, at that time, exhibit to the board, without de — 432 — mand, for the obligation is one imposed by statute, the exact condition of tbe affairs of Ms office, and have then and there all the public funds, records, &c., pertaining to his office, and in his possession, ready to be turned over to his successor. A failure in this respect will constitute a breach of the conditions of his bond, and he cannot shield himself from liability by the childish plea, that no one demanded of him the performance of his sworn duty. (Joint School Dist. No. 1. v. Lyford, et. al., 27 Wis., 506.) The policy of the law is to hold the financial agents of the government to the strictest accountability, and when their duty is plainly pointed out by statute, they must perform it, without demand or notification. The proposition that a public officer, in charge of public funds and property, on retiring from his office, either at the expiration of his term or on resignation, is under no obligation to settle and turn over such funds and property, except on demand, when the law clearly designates the body with whom he shall make settlement, and the person to whom he shall transfer, carries upon its face its own refutation, and I shall dismiss it without further comment. We hold that the facts stated in the complaint are sufficient to constitute a cause of action; that the instrument sued on is a valid legal bond, substantially complying with the requirements of the statute, and covering the duties of judge of probate in his capacity as ex-officio county treasurer, and that for the breaches alleged, the principal and his sureties are liable, unless the matters pleaded in the answer are sufficient to constitute a defense. The conditions of the bond are absolute, and provide that he “ shall well and faithfully and impartially perform the duties and execute the office * * without fraud, deceit or oppression.” These duties are defined by the provisions of the statute, and the performance of them is only well done, faithful and impartial, when in strict compliance with these provisions; and under these provisions and the obligations of his bond, he is bound, not to exercise due care and diligence in the discharge of his duty, but to perform it absolutely, without conditions or exceptions, unless the party can estab — 433 — lish facts that bring his excuse within-the following provisions of our Civil Code (Sec. 855): “The want of performance of an obligation, or an offer to perform, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: * . * “2. When it is prevented or delayed by an irresistable super-human cause, or by the act of public enemies of this Territory or of the United States, unless the parties have expressly agreed to the contrary,” I omit subdivision 1 and 3 of this section, as under the pleadings they can have no application to this case. Now, the only allegation in the answer that savors of an excuse for non-performance, is stated in the following words: “ That on the said 13th day of January, 1875, the said building, and in it all the said money, books, records and documents, were utterly consumed and destroyed by fire, without any want of reasonable care and diligence on the part of said defendant Simonsen, in the care and preservation thereof, so that all the same were entirely lost to the said Simonsen and this plaintiff, and no part thereof has ever been recovered or restored.” The liability of the treasurer, upon a bond of the character of the one in suit, being that of an insurer, and not measured by the law of bailments. (Hancock v. Hazard, 12 Cushing, 112; Muzzy v. Shattick, et. al., 1 Denio, 233; Commonwealth v. Conly, 3 Penn. St., 372; The State v. Harder, 6 Ohio St., 607; Pearly v. Muskegon Co., 32 Mich., 132; 1 Dillon Mu. Cor., 296.) The material inquiry now presented is, can destruction by fire come within the definition of “ an irresistable super-human cause?” I understand these words to be equivalent to, and used in the same sense as “ act of God,” which Lord Mansfield says “ is natural necessity, as wind and storms, which arise from natural causes, and is distinct from inevitable accident.” Parsons (2 Contracts, 159,) defines the phrase to mean, “-a cause which operates without any aid or interference from man. For if the cause of loss was wholly human, or became destructive by human agency and co-operation, then the loss is to be ascribed to man and not to God, and to the carriers negligence, because it would be dangerous to the community to permit him to make a defense which — 434 — might so frequently be false and fraudulent.” If this rule and reasoning can be applied to a common carrier, with how much more force may we include the public officer entrusted with the safe keeping and disbursement of public funds. In Greenleaf on Evidence, (2 Vol., § 219,) the learned author, after giving Lord Mansfield’s definition of the phrase, uses the following language: “ Therefore if the loss happened by the wrongful act of a third person, or by an accidental fire, not caused by lightning, * * * the carrier is liable.” Citing Hyde v. Trent & Mersey Nav. Co., 5 T. R., 387, and Forward v. Pittard, 1 T. R., 27. The same doctrine has been held in the case of The Dist. Tp. of Union v. Smith, 39 Iowa, 9. Accidental fire, therefore, not- caused by lightning, is not “ an irresistable super-human cause,” and will not excuse from the performance of an obligation unless specially so stipulated, or when the.party is bound only to the exercise of reasonable care and diligence, (Ross v. Hatch, 5 Iowa, 149,) and no such facts appearing from the pleadings in this case, these points need not be noticed. The case of District Township of Taylor v. Morton, 37 Iowa, 550, was an action brought against defendant on his official bond as the treasurer of plaintiff. The law required him to give bond “ conditioned for the faithful performance of his duty,” and the condition'of his bond read, “ if the said Morton, as treasurer, shall faithfully and impartially discharge the duties of said office as required by law,” etc. The allegation in relation to the loss of the property, was in similar language to the answer in this case, except it was there alleged that the money was stolen; here it was burned. Mr. Chief Justice Beck, in delivering the opinion of the Court, says: “ His liability rests on the conditions of his bond, and if by them he is required to do an act which, without his fault, becomes impossible on account of anything occurring subsequently to the contract, he will not be released. These rules are applicable to all contracts, and the public interests demand that, at this day, when public funds in such vast amounts are committed to the custody of such an immense — 435 — number of officers, they should not be relaxed when applied to official bonds. A denial of their application in such cases would serve as an invitation to delinquencies, which are already so frequent as to cause alarm.” This we deem settled law; and settled too on the highest considerations of public policy, as well as in strict justice to those who by their solemn obligations undertake to answer for the custody and safe keeping of public funds and property. It is the well recognized doctrine of the Supreme Court of the United States, as held in the following cases: The United States v. Prescott, 3 How., 578; The Harriman, 9 Wal., 161; Boyden, v. United States, 13 ibid, 17; The United States v. Thomas, 15 ibid, 337; see, also, Harmony v. Bingham, 12 N. Y., 99; Tompkins v. Dudley, 25 N. Y., 272; The Dist. Tp. of Union v. Smith, supra; Fowler, et. al. v. Bott, et. al., 6 Mass., 63; School Dist. No. 1. v. Dauchey, 25 Conn., 530. In commenting on the phraseology of the statute requiring the treasurer on going out of office to deliver to his successor in office all public moneys, books, &c., in his possession, much stress has been laid by counsel for defendant on the last three words, “ in his possession.” . And it has been insisted that the property having been destroyed by fire, is not in his possession, and therefore could not be turned over. Neither would it have been any more in his possession had it been stolen, or by him embezzled and transferred to the possession of a guilty confederate. The position is a very lame one. The law presumes the treasurer to have possession of all public funds and property that-may have come into his hands by virtue of his office, and which he has not paid out or disposed of in some manner authorized and prescribed by statute. If he has not the funds or property in his possession, and cannot show that they have been applied and disposed of as directed by law, and can plead no legal excuse for the non-performance of his obligation, then he must answer on Ms bond. Any other rule would be dangerous to community, and open the door to all manner of villainy, by “ encouraging defenses which would so frequently be false and fraudulent.” — 436 — The fact that plaintiff failed to furnish a safe on request of defendant Simonsen, is no excuse for the non-performance of his obligation. He became personally responsible, and in the absence of any statutory provision, must provide for the safe keeping of the funds and property coming- into his hands, the same as a common carrier. (Halbert, et. al. v. The State, 22 Ind., 125.) There is one other point made by counsel for appellants, which should have been noticed in its proper place.. It is insisted that the words, “ without fraud, deceit, or oppression,” contained in the conditions of the bond, explain the preceding language, and are a limitation on defendant Simon-sen’s liability. This cannot be (admitting this to be words of limitation, which is not at all clear,) unless authorized to be inserted by the statute, which is not claimed in this case. A party assuming the duties and responsibilities of a public official trust, takes it "with all the obligations and liabilities imposed by law, and cannot be permitted to engraft ihto his bond conditions foreign to the statutory provisions for the purpose of limiting the legal obligations imposed. If such language is used it will be treated as surplusage, and advantage cannot be .taken of it for the purpose of avoiding legal liability. Finding no error in the record, the judgment of the court below sustaining plaintiff’s demurrer to the answer is affirmed and the cause remanded for such other and further proceedings as may be authorized by law.