State ex rel. Mitchell v. Smith

Truly, J., delivered the opinion of the court. All official bonds are governed by Code 1892, § 8055. That section provides that a failure to observe or comply with any formality shall not vitiate any official bond, but all such bonds shall be valid and binding — and this, too, whether the bond is made in the proper penalty, or without any penalty, or whether correct or incorrect in any of its recitals. It was the intent of the legisature, in our judgment, that when sureties sign any official bond, whether an incorrect penalty be inserted or no penalty at all, by such signing they become obligated “to the full penalty of the bond which might have been required.” Under this view it becomes immaterial whether the proper officer, judicially determining the amount of the penalty which ought to be inserted in bonds for members of boards of supervisors, under Code 1892, § 275, makes a correct calculation or not, because by operation of law, upon the signing and approval of the bond, the state is protected to the full extent of whatever the legal penalty should be. One who enters into office, and the sureties on his official bond by virtue of which he enjoys the office, are alike estopped to deny the validity of the bond executed by them, and this estoppel applies as well to the amount of the penalty as to any other misrecital in the obligation. To hold, as contended by appellant, that any mistake in calculation or error of judgment on the part of the approving officer of the amount of the penalty of the bond to be arrived at under the vague and indefinite provisions of sec. 275 would vacate the office, in the eye of the law, would lead to endless confusion and difficulty. It would be difficult, if not practically impossible, to ascertain with mathematical certainty the exact amount to be inserted as the penalty of a bond under that section. It provides that the penalty shall be “equal to five per centum of the sum of all the state [558] and. county taxes shown by the assessment rolls and the levies to have been collectible in the county for the year immediately preceding the commencement of the term of office of said member.” The court will take judicial knowledge that the term of office began on the first Monday in January of a certain year, and all the taxes which are “collectible” for the year immediately preceding have not, in fact, at that date been collected. Waiving all consideration of any uncertainty which might arise under the wording of the statute, it would still be a difficult matter to determine the exact amount of the taxes lawfully collectible appearing-on the “rolls and the levies.” It might ha232>en that there were •double assessments of lands or personalty, or other errors, whereby the amount shown by the assessment roll's and levies would not be the true amount, and many other discrepancies might exist which will occur.to the mind without S2iecific enumeration. We cannot hold that it was the legisative design that a mere error in a calculation by the officer should result in the vacating of the office and overthrowing the result of the election, es2iecially in view of our conclusion that the state runs no risk of loss, because protected by the provisions of sec. 3055. If a person elected fails to give any official bond, or fails to have the official bond which he does give approved by the proper officer, he cannot lawfully be inducted into office; but if he honestly undertakes to comply with the law, and gives the bond which he is directed by the proper officer is the correct bond, with proper sureties, and that bond is approved, and he otherwise qualifies, he is protected in the enjoyment of his office, and the state is protected against possible default or malfeasance or misfeasance by the bond so given, without regard to its form or the correctness of its recitals. When one signs what purports and is intended to be an official bond, whether as principal obligor or surety, the law writes in all necessary recitals, including proper .penalty. No other interpretation of the statute can subsist [559] without disturbing the whole governmental system and ignoring the plain intendment of the legislative department. We think the action of the learned court below was correct upon both direct and cross.appeal. It must be observed that we decide this case without reference to the provisions of sec. 82 of the constitution, and without expressing any opinion as to the constitutionality or legal effect of Code 1892, § 275, if challenged in the light of that constitutional provision. The judgment is affirmed on direct and cross appeal.