Supervisors of Washington County v. Selmer

Lyoh, J. The portions of the complaint which allege that the defendant Semler had absconded from the state, and his absence therefrom, which were stricken out by the order of the court commissioner, were not restored by the mere motion to vacate such order; and hence these allegations are not in the complaint, and formed no part of it when the demurrer was interposed. It was said in argument, that the whole proceedings to strike out were abandoned, and that the circuit court disregarded the order of the commissioner and passed upon the demurrer as a demurrer to the complaint originally filed. But we are bound by the record, and that fails to show any such state of facts. It is not denied that the right of action In this case depends upon the fact that the defendant Semler has refused to pay over moneys in his hands as county treasurer on lawful demand therefor. The demand alleged in the complaint was made by Weimer, whom the board of supervisors had appointed to perform the duties of such office. If the board had [379] power to make such appointment, "Weimer could legally make such demand, and the failure of Semler to pay oyer the money pursuant thereto is a breach of the condition of his bond, for which an action against him and his sureties may he maintained. But if the board had no such power, Weimer was not authorized to make the demand, and the failure of Semler to pay over the money to him is not a breach of such condition, and gives no right of action on the bond. Hence, the controlling question is, Do the facts stated in the complaint show that the plaintiff hoard of supervisors had lawful authority to appoint Weimer to perform the duties of the office of county treasurer? The only authority of the hoard in the premises is conferred by sec. 125, ch. 13, E. S., which is as follows: “ In case the office of county treasurer shall become vacant, or in case the treasurer from any cause shall he incapable of discharging the duties of his office, the county board of supervisors may, if in their opinion the interests of the county require it, appoint a suitable person to perform the duties of such treasurer; and the person so appointed, upon giving a bond with the like sureties and condition as that required in county treasurers’ bonds, and in such sum as said board shall direct, shall be invested with all the powers and shall perform all the duties of such treasurer, until such vacancy be filled or such disability bo removed” (Tay. Stats., 326, § 174-). In the absence of an allegation that Semler had absconded from the state, there is no claim that there was a vacancy in the office of county treasurer before the appointment of Wei-mer; and the question is, whether, at the time such appointment was made, Semler was incapable from any cause of discharging the duties of his office. The language of the statute is general: if, from any cause, the disability exists, the board of supervisors may appoint. Sound considerations of public policy require that the statute should have a reasonably liberal construction in favor of the [380] power. At least no undue limitations of the power should be interpolated by judicial construction. The plain purpose of the statute is, that the office shall be filled and its duties performed by some person competent thereto; and hence, if the incumbent cannot fulfill this condition, the board of supervisors is authorized to appoint another in his place, who can do so. Considering the manifest object of the statute, we cannot doubt that a county treasurer who has absconded from the state and is a fugitive from justice is incapable of discharging the duties of his office, within the meaning of the statute, and that the board of county supervisors may lawfully appoint some other person to discharge the duties of such office. But, as before stated, the allegation that Semler had so absconded is not now in the complaint. We are also inclined to think that should a county treasurer refuse or be unable, on lawful demand and without color of legal excuse, to pay over money received by him vwt-ute o]¡Jígíí, the same result would folloAV. This proposition is, perhaps, more doubtful than that last above stated, and for that reason, and because no such refusal or inability is alleged in the complaint, we do not determine it. The general statement that Semler was a confessed public defaulter in his office, is not necessarily equivalent to an averment that he had failed on lawful demand to pay over the public funds in his hands. The term “ defaulter ” applies as well to any other breach of official duty, however unimportant or trifling. Correct pleading requires a statement of the|facts which render him a defaulter, and these are not stated in the complaint. ’ 1 We are, therefore, unable to say, from the facts stated in the complaint, that Semler was, from any cause, incapable of discharging the duties of his office when’Weimer was appointed. Because such incapacity is not made to appear therein, the complaint fails to show that ’Weim.er was lawfully appoint [381] ed or Rad any authority to make the alleged demand of Sem-ler. It has already been said that if not lawfully appointed the demand is nugatory, and the refusal of Semler to comply with it is no breach of the conditions of his official bond. By the Court. — The order of the circuit court sustaining the demurrer to the complaint is affirmed.