State ex rel. Bay v. Holman

BROADDUS, J. Under the law in force at the time of the execution of the bond in suit, Holman was not public guardian for insane persons under any circumstances. Section 299, Eevised Statutes 1889, defines his powers and duties as public administrator, and as such he was restricted to administration on certain estates and to act as guardian for minors under certain conditions. His powers were purely statutory, and it certainly can not be claimed that a public officer can have any implied powers. Such would be a dangerous doctrine, and not to be tolerated for a moment. Said section provided that, “it shall be the duty of the public administrator to take into his charge and custody the estates of all deceased persons, and the estates of all minors in his county, in the following cases: “First. "When a stranger dies intestate in the [200] ■county without relations, or dies leaving a will, and the executor named is absent or fails to qualify. ‘ ‘ Second. When persons die intestate without any known heirs. ■ • 4 ‘ Third. When persons unknown die or are found dead in the county. “Fourth. When money, property, papers or other estates are left in a situation exposed to loss or danger and no other person administers on the same. . “Fifth. When any estate of any person who dies intestate therein or elsewhere is left in the county, liable to be injured, wasted or lost, when said intestate does not leave a known husband, widow or heir in this State. “Sixth. The person of all minors under the age of fourteen years, whose parents are dead, and who have no legal guardian. “Seventh. The estate of all minors whose parents are dead, or if living, refuse or neglect to qualify as curators, or having qualified, have been removed, or are from any cause incompetent to act as curator, or who have no one authorized by law to take charge of and manage their estate. “Eighth. When from any other good cause said court shall order him to take possession of any estate to prevent its being injured, wasted, purloined or lost.” The language of the statute is specific as to what estate a public administrator may take in charge and of the persons for whom he may act as guardian, and in no instance is he authoiized to take charge of the person or estate of the insane. It is a familiar rule of construction that the expression of a particular thing is the exclusion of another. Expressio unius est exchisio ■alterius. i But plaintiff claims that such authority is conferred by section 300, idem. Said section is as follows: “In addition to the provision of this article, he and his securities shall have the same power as are conferred upon, and be subject to the same duties, penalties, provision and proceedings as are enjoined upon or authorized against executors and administrators, guardians [201] and curators by this chapter, so far as the same may be applicable.” By an examination of article 15 of the chapter entitled, “Public Administrators,” it will be seen that there are no powers and duties conferred upon public administrators, no provision how they shall proceed, in the discharge of their duties, and no penalties imposed for a violation of such duties, except as will be found in section 302, idem, which only requires them to give notice of the time when they have taken charge of certain estates. It seems to us very clear that it was not the intention of the Legislature to confer any additional authority upon public administrators, but- only to clothe them as such, with the same powers conferred by statute upon other administrators and guardians, and subjecting them to the same course of proceeding, and imposing upon them the same penalties for a violation of duty. The Legislature recognized this omission in the statute, and remedied it by the Act of April 11, 1895, wherein said section 299 was so amended as to authorize the public administrator as ex-officio public guardian, to take charge of the persons and estates of the insane in certain cases. This act took effect from the date of its passage, and was in force at the time said Holman took charge of the person and estate in question. It is the contention of the plaintiff that the obligation of the defendant sureties not only includes the duties imposed by the law existing at time of the execution of the bond in suit, but also duties imposed by subsequent law of a kindred nature, and in support thereof we are cited to many eminent authorities. See, United States v. Singer, 82 U. S. 122; Bartlett v. Governor, 2 Bibb (Ky.) 586; Prickett v. People, 88 Ill. loc. cit. 120; United States v. Powell, 14 Wall 493, and among others, reference is made to certain Missouri cases: Marney et al., v. State, 13 Mo. 7, and State v. Smith, 57 Mo. App. 120. In the last case, Judge Bond, who delivered the opinion of the court, quotes with approval the language of the decision in United States v. Singer, supra, that, “the official bond of parties undoubtedly covers not [202] merely duties imposed by existing law, but duties belonging to, and naturally connected witb, tbeir office or business imposed by subsequent law.” But as the-question did not arise on tbe facts in tbat case, the-decision may be regarded as obiter dictum. But tbe law seems to be well settled to tbe contrary in tbis State. In State to use, etc., v. Roberts, it was beld tbat “the State can not by a legislative act, materially modify a cpntract between herself and a citizen, any more than she-can impair tbe obligation of a contract, between citizens.” In Schuster v. Weissm, 114 Mo. 158, it is beld: “Where at tbe time of tbe execution of an appeal bond, tbe Supreme Court bad appellate jurisdiction of tbe action only on appeal from tbe St. Louis Court of Appeals, and tbe bond was made to conform to tbe law as it then existed, and subsequently it was so changed tbat tbe appeal was transferred to the Supreme Court, and judgment was rendered thereon without an intermediate judgment in the Court of Appeals, tbe sureties on such appeal bond will be discharged.” Judge Gantt, who delivered tbe opinion of tbe court, discussed tbe subject at considerable length and beld tbat while tbe act in question, transferring cases, from tbe St. Louis Court of Appeals to tbe Supreme ' Court, was constitutional in that respect, tbat it impaired tbe obligations of tbe defendant sureties, and imported new and different conditions into tbe bond,-, and, hence, worked a discharge of such sureties. He quotes with approval tbe unequivocal language of Chief Baron Pollock in Mayor v. Oswald, 3 Ellis & Blackburn 665: “Every contract (which does not expressly provide to tbe contrary) must be considered as made witb reference to tbe existing state of tbe law; and, if by tbe intervention of tbe Legislature a change is made in the law which in any degree affects tbe contract, such contract, made without some clear and distinct reference to tbe prospect or possibility of a change, does not bold witb reference to tbe state of things as altered by the new law.” [203] The condition in the bond in suit is, in terms, that the “said William A. Holman shall faithfully discharge all the duties of his office.” It was not a part of the duties of his office at that time to have charge of the estates and persons of the insane under any circumstances; and there is nothing in the bond to indicate that it was made with reference to any prospective change of the existing law. The same principle of law is also recognized in the following cases, viz.: State v. Peterson, 66 Mo. App. 257; Bauer v. Cabanne, 105 Mo. 110. It follows, therefore, that the enactment of the amendment to section 299, on the eleventh of April, 1895, relieved the defendants as securities of all liability on said bond, because it imposed the additional obligation on Holman as public administrator of making it his duty to take charge of the persons and estates of the insane, a duty which did not belong to his office at the date of its execution. The amendment in question was desirable, and no question can be legitimately raised as to its constitutionality; and the mistake was made in Holman not giving a new bond under the changed conditions of the law. As the question decided goes to the. right of the plaintiff to recover, all other questions raised by the parties in this court become immaterial and it is unnecessary to decide them. For the reasons given the cause is reversed. All concur.