Manley v. City of Atchison

The opinion of the court was delivered by Kingman, C. J.: The plaintiffs in error are sued as sureties of Prank Smith in his bond as city treasurer of the city [364] of Atchison. The bond is dated April 30th 1868. On the 13th of said April the city council of that city appointed said Smith city treasurer upon his agreement to pay seven per cent, interest on all current funds in his hands, and make no charge for his services, all which appears on the journals of the council of that date. The ordinances of the city of Atchison at that time expressly prohibited the city treasurer from using the public moneys or orders in his keeping or .custody for his own use or benefit, and gave him a salary of $200 per annum for his services. On the trial the defendants Manley, King, Martin, and Price, sureties on the bond, offered to prove “that the mayor and council of the city of Atchison allowed Smith to use the funds of the city in his own private business under an agreement that he should pa.y seven per cent, interest per annum for all current funds in his hands, and make no other charge for his services, and that he was appointed treasurer in consideration of this agreement on his part to pay interest and make no further charge, which facts were not communicated to defendants Manley, Martin, King, .and Price, when they signed the treasurer’s bond; that this action was had by the mayor and council in executive session; that said defendants liad no knowledge of such a contract, .and that had they been informed of the facts they would not have signed the bond.” The plaintiff objected to the introduction of this evidence, and the court .sustained the objection; and this action of the court constitutes the only question presented by the plaintiffs in error in this case. Was this testimony admissible? It presents the question of whether the illegal acts of one class of a city’s agents so excuses the illegal acts of another agent of the city as that the sureties on a bond given for the faithful performance of his duties by the latter are thereby released. The mayor and •council of a city are but the officers and agents of the city, with defined powers. Acting within the limits of these poivers their acts are binding, however unwisely and imprudently their action may be. Outside the poAA^ers confided to them their acts are, as to the city, null and Amid. The contract AArhich the rejected evidence Avas proposed to prove, was [365] one the mayor and council had no power to make. This is plain from the ordinance referred to. It would be no less certain if .no such ordinance existed. The funds arc collected for public purposes. The mayor and council had no right and no power to use them for any other purpose. They could not convert the city into a banking concern, or become auxiliary to any such scheme, by a direct or indirect use of the public funds for such purpose. Their duty was to administer the funds raised for public objects so as to promote those objects alone. It was also the duty of the treasurer to safely keep the funds sacred for those public purposes only. He had no right to use a dollar for private gain. He got his power by his appointment; but his duties were defined by law, and were not a subject of bargain and trade between himself and the mayor and council. Their consent or agreement that he should use the funds in his business gave him no right so to do. An illegal contract could not enlarge the power of the city treasurer; neither could it limit his responsibility. That the illegal contract was made with the other agents of the city does not change the principle, nor alter the duties and obligations of the treasurer. They remained the same, and were defined by law. Any other conclusion would lead to endless confusion, and often end in ruin to cities. The whole fallacy of the argument of the plaintiffs in error lies in confounding the mayor and council of a city with the city itself. Although their powers are greater, they are no more the city than is the city marshal, or the city attorney; and either of these officers would have had as much right to make a contract with the treasurer, such as was attempted to be proven in this case, as had the mayor and council; and a contract with either would have been as valid and binding. The contract or agreement sought to be proven in nowise lessened the obligation of the treasurer; neither did it affect the liability of his sureties. Testimony to prove it was therefore properly excluded. This view settles the points made on the instructions. II. The city of Atchison also files its petition in error in [366] this case, and asks the court to correct a certain ruling of the court below made to its prejudice. The record shows that the city gave in evidence testimony tending to make out its case, and then introduced Mr. Garside as a witness, who testified that he succeeded the said Smith in the office of city' treasurer, and upon February 23d 1869 entered upon the ■duties of said office, and on said day made demand as such -city treasurer upon said Smith as late city treasurer to turn ■ over to him the city funds then in his hands, and settle therefor. “And then plaintiff offered to prove, by said witness, that at said time the said Smith as such late city treasurer had in his hands certain funds belonging to the said city of Atchison for the benefit of its public schools, which had been placed in his hands as such city treasurer, and ex offieto treasurer of the board of education, for the benefit of the schools in said city between July 1st 1868, and February 9th 1869, and then had remaining in his hands as such city treasurer, of said funds, the sum of $2,055.52, known as ‘school fund,’ and the sum of $1,593.81, known as ‘interest on school bonds.’ To the introduction of this evidence defendants objected, which objection was sustained by the court.” This ruling of the court is the only error complained of by defendant in error, and the record in this matter is literally quoted because a, question was elaborately argued in this court which is not raised by the record. What the objections were, that were raised in the court below, we are not informed by the record. The evidence was rightfully excluded. The best evidence is always required. This rule is fundamental. It appears from the ordinance of the city, made a part of the record, that it is the duty of the treasurer “To keep in suitable books a full and accurate account of all moneys received by him on behalf of the city, specifying the time of disbursement, from whom received, to whom disbursed, and on what account received and disbursed.” This book would be the best evidence of the facts sought to be proven by the witness Garside, and this evidence the city should have offered. There is no showing that the books were not in the custody [367] of tlie treasurer, nor any testimony that they had not been -correctly kept. This court will on this ground be compelled to sustain the ruling of the court below; and it is of no importance to this action what may be the views of this court •on the question argued, and that is this: Is the city treasurer liable on his bond, as such, for moneys that come into his hands belonging to the school board? The judgment is affirmed. The costs of this court to be ■equally divided. All the Justices concurring.