Palmer v. Woods

Reed, J. — It was the duty of the board of supervisors to require Woods to produce and account for all public funds which had come into his hands under color of his office before approving his bond for the second term. Code, sec. 690. But neither the failure to perform that duty, nor the false representation that it had been performed, will release the sureties from liability for a defalcation occurring subsequent to the approval of the bond. Their undertaking was for the faithful performance by the clerk of the duties of the office during the term upon which he was about to enter. They assumed no liability as to his previous acts, nor are they sought to be charged with any such liability. The money for which a recovery was sought came into his hands after their undertaking had been accepted. It has not been claimed that the failure of the board of supervisors to perform the duty required by the statute before approving the bond invalidated the undertaking of the sureties, and it is manifest that such failure could not have that effect. The object of the statute in requiring the accounting by the officer before the approval of his bond for the second term is to prevent the continuance in office of dishonest or incompetent officers. The validity of the undertaking of the bond does not depend upon the performance of that duty. For the bond takes effect from the time of its delivery and approval, and from that time the person is an officer, in fact and in law, whether the duty has been performed or not. But the substance of defendants’ complaint is that they were induced to enter into the undertaking and incur the liability by the false representation that the duty had been performed and the accounting had. This, however, amounts to no more than an allegation that they were misled by the representations as to the competency and honesty of the man for whose official conduct they were about to become answerable ; but those were matters as to which the board of supervisors were not bound to give them advice or information. Their duty was to make the settlement, and approve the [405] bond if they found the sureties sufficient, and that the public funds had been accounted for, and if not, to reject it; and that duty they owed to the county and the public, and not to the individuals who were proposed as sureties. As they owed them no duty in the premises, this understanding could not be affected by any representation, however false or fraudulent it may have been. Affirmed.