Supervisors of Omro v. Kaime

Cole, J. The condition of the hond executed "by the defendants is essentially the same as that prescribed in sec. 113, ch. 15, Tay. Stats., p. 370. It was, that the town treasurer would “ faithfully discharge the. duties ” of his office, and “ properly and legally disburse or pay all moneys ” that might come into his hands. The statute made it the duty of the chairman of the board to approve the bond given, and to indorse his approval thereon. The-chairman failed to formally approve the bond as the law required, but this omission of duty on his part cannot have the effect to release either the treasurer or his sureties from their liability on the obligation. The provision is obviously for the protection of the town, and was intended to secure it agains.t the risk of an insufficient bond. The first error relied on for a reversal of the judgment is the ruling of the court that the sureties were liable for the defalcation of the treasurer. It is said by the learned counsel for the defendants, that the principle is well settled that the obligation of a surety is a matter of strict law, never arising by implication; and that this principle, when applied to the facts of this case, exonerates the sureties from liability. There is no controversy as to the correctness of this rule of law, but only as to its application to the case at bar. It appears that the defendant Kavme was elected town treasurer on the 7th of April, 1873, and on the 8th took the oath of office, and filed his bond, on which his codefendants were sureties. In April, 1874, Kai/me was reelected, took the oath of office, and filed with the the town clerk a bond in due form, but without sureties. This bond was not approved by the chairman of the board. It is an admitted fact that Kcmne gave no bond with 'sureties for his second term, although requested by the officers of the town so to do. He continued to act, however, as [474] town treasurer, until one Buslmell was appointed treasurer, and entered upon the duties of the office June 15, 1874. During the year 1873, Kavme had deposited the money of the town, together with his own funds, with one Howard, doing business as a banker at Omro, and who failed and ran away about the 24th of April. In consequence of the failure of Howard, the money of the town was lost; and we hare no doubt that under these circumstances the sureties are responsible for it. Under the statute, Kcmne held his office for one year and until his successor was elected and qualified. Sec. 71, ch. 15, sufra. And, though elected as his own successor, he failed to qualify for the second term by giving a proper bond within the time prescribed by statute. Sec. 67. This amounted to a refusal to serve, and an abandonment of the office. Sec. 68. The sureties contracted for the faithful discharge of the duties of the office by Kaime, and that he would propei’ly and legally disburse and pay over the money of the town which should come to his hands. He has been guilty of a breach of duty, and has certainly failed to pay over to his successor the moneys of the town. The evidence clearly shows that Kavme loaned these moneys to Howard, or deposited them in Howard’s bank, during his first term, and that in fact he received no money of the town after his reélection. Under these circumstances we see no valid reason for holding that the sureties are released from all liability to make good the default of the treasurer. It is said by defendant’s counsel that a surety on the official bond of an officer whose term is limited to a year is not liable beyond the year, though the officer continues to hold until his successor is chosen and qualified. And a number of cases are cited in support of this position. It is not considered necessary to examine these authorities in detail, for we do not intend to lay down any rule really in conflict with them. The liability of a surety cannot be indefinitely extended. "When the office is annual, it may well be [475] presumed that tbe surety contracts for the faithfulness of the officer “ only for the year for which he was chosen, and for such further time ns is reasonably sufficient for the election and qualification of his successor,” as held in Chelmsford Co. v. Demarest, 7 Gray, 1. See also the case of Dover v. Twombly, 42 N. H., 59. Under our system of popular, elections, great inconvenience would arise if the term of one officer were to terminate before another commenced; and the statutes are framed to avoid any interval or vacancy. And as time must necessarily elapse after an election to enable the officer elect to express his acceptance and qualify, it must be presumed that the sureties contracted that the old officer would perform his duty until a reasonable period was allowed for doing these things. It is conceded that Kaáme had until the 18th of April to file a proper bond for the second term. It is said that it was the duty of the supervisors on that day, upon ascertaining that he had not filed his bond with sureties, to have declared the office vacant, and to have appointed his successor. This they might have done, undoubtedly, under sec. 76. But though this provision declares that when a treasurer refuses to serve, the board “ shall forthwith appoint a treasurer,” this language is to have a reasonable construction. It is not to be interpreted as requiring the board to act on the very day the time to qualify expired; more especially when the treasurer elect had manifested an intention to serve, as KaAme had done. Eor it was not until after the failure of the bank on the 24th of April, that he indicated his purpose not to file a bond with sureties. The other point relied on for a reversal of the judgment is, that as the treasurer had been guilty of no want of care and diligence in depositing the money in bank, the defendants ought not to be held liable for its loss. The counsel frankly admitted that there was a great preponderance of authority against this position; and the concession is in accordance with the fact. Upon this question we cannot do better than quote [476] tbe language of Mr. Justice McLean in pronouncing tbe decision of tbe court in The United States v. Prescott et al., 3 How., 578. He says: “Public policy requires tbat every depositary of tbe public money should be bold to a strict accountability. Not only tbat be should exercise tbe highest degree of vigilance, but tbat ‘ be should keep safely ’ tbe moneys which come to bis bands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than lay bis plans and arrange bis proofs, so as to establish bis loss, without laches on bis part. * * No such principle has been recognized or admitted as a legal defense.” p. 588. And we have certainly no disposition to relax tbe rule of liability on tbe part of treasurers entrusted with public moneys, by recognizing such a principle as a legal defense to an action upon their official bonds. By the Oov/rt. — Tbe judgment of tbe circuit court is affirmed.