Robertson v. Sanders

Anderson, J., delivered the opinion of the court. Appellant, Robertson, state revenue agent, filed a bill on behalf of the city of Charleston in the chancery court of Tallahatchie county against appellees, J. W. Sanders, ex-mayor of said city, and the United States Fidelity & Guaranty Company, the surety on his official bond as such mayor, to recover funds alleged to have been collected by said Sanders during his term of office, belonging to said city, and for which he failed to account to the city. Appellees filed separate demurrers to the bill, which were sustained, and appellant given leave to file an amended bill, which leave was declined, and thereupon a final decree was entered dismissing appellant’s bill, from which he prosecutes this appeal. The bill made substantially the following case: The city of Charleston adopted the commission form of govern [855] ment, as provided for in chapter 108, Laws of 1908 (Hemingway’s Code, sections 6024 to 6037, inclusive). Appellee Sanders was duly elected mayor of said city in 1918, and thereafter, on the 6th day of January, 1919, entered upon the duties of his office, after subscribing to the oath and executing the bond required by law; said bond being in the penalty of twenty-five hundred dollars, with appellee United States Fidelity & Guaranty Company as surety. A copy of the bond is made a part of appellant’s bill and is attached as an exhibit thereto^. It is payable to the city of Charleston and contains the following preamble and condition: “Whereas, the abóve-bounden J. W. Sanders has been duly elected mayor of the town of Charleston, Mississippi, for the term of two years from the 6th day of January, 1919, to the 6th day of January, 1921: - “Now, tlierefore, the condition of this obligation is such that, if the said J. W. Sanders shall well and faithfully perform all the duties of his said office, then this obligation to be void; otherwise, to remain in full force and effect.” (Italics ours.) The bill alleges that, in addition to the mayor-commissioner and the other commissioners, there was a city clerk and a city tax collector, one W. D. Brown holding the former office and F. M. Dabney the latter; that with the consent of said clerk and tax collector and the other municipal authorities ^appellee fe'anders, in addition to performing his duties as mayor, acted for said clerk and tax collector in collecting the municipal taxes and other revenues derived from different soui’ces; that when appellee Sanders made his bond as such mayor the agent of appellee United States Fidelity & Guaranty Company, through whom said bond was made and who was its attorney in fact, knew that said appellee Sanders intended to, in a large measure at least, perform the duties belonging to said clerk and tax collector, and also knew that during his term of office covered by said bond he was in [856] fact performing in addition to his duties as mayor, in a large measure, those of said clerk and tax collector. The* bill charges that appellee Sanders, during his said two-year term of office, in his capacity as mayor and acting for the said city clerk and tax collector, collected for said city in ad valorem taxes, privilege taxes, fines, the city’s share of the distribution of school fund received from the state, and other funds from various sources the sum of one hundred and seventeen thousand, one hundred and fifty-seven dollars and twenty-four cents. That of the amount, so collected he accounted for and paid over to the said city the sum of one hundred and thirteen thousand, three hundred and sixty dollars, and seventeen cents, leaving (quoting from the bill) “the net shortage of the said J. W. Sanders for which he and the said surety are answerable three thousand, seven hundred, ninety-seven dollars and seven cents.” The bill seeks discovery from appellees of the various matters of fact upon which the allegations of the bill are based. It will be noted that the bond in question only purports to be the bond of appellee Sanders as mayor. The condition is that he will faithfully perform the duties of the office of mayor. No other duties are covered. The question as to appellee United States Fidelity & Guaranty Company is whether or not under this bond there is any liability of the surety, for funds received by appellee Sanders which came into his hands by virtue of his acting as clerk and tax collector of said city. This question is controlled by United States Fidelity & Guaranty Co. v. Yazoo City, 116 Miss. 358, 77 So. 152, L. R. A. 1918C, 395. In that case there was a city ordinance requiring all moneys collected by the superintendent of the municipal street car system to be paid into the city depository. In violation of this ordinance said. superintendent paid the funds so collected by him to the city clerk, who was only authorized to collect and receive privilege taxes. The court held that the moneys so paid [857] the city clerk were not funds received by him by virtue of his office as such clerk, that he had no apparent authority to receive said funds, that it could not be said that they were collected by him under color of his office, because there was no appearance of right under the law for him to receive said funds, and that therefore the surety on his official bond was not liable for his defalcation in failing to account, therefor. The only difference between that case and the present case is that the bill here charges that the surety, appellee United States Fidelity & Guaranty Company, knew that it was the purpose of appellee Sanders as mayor to perform in whole or in part the duties of the clerk and tax collector of said city as well as those of mayor, and that he had done so. We are unable to see how that fact could have any effect on the liability of the surety -on the may- or’s bond. The bond by its very terms is conditioned alone for the faithful performance by appellee Sanders of his duties as mayor. The bill does not undertake to reform the bond; in fact, it does not charge that the bond fails to embody the real contract entered into by the parties. There is no averment that it was intended and understood by the parties that appellee Sanders was making a bond to cover any other funds than those coming into his hands as such mayor. In fact, the converse is fairly inferable from the language of the bill. It is sought to hold the surety liable alone by reason of the fact that it was known to the surety that appellee Sanders intended to perform other official duties for the city additional to those of mayor. The bill fails to charge what part of the funds appellee Sanders received in his official capacity as mayor and what portion came into his hands by virtue of acting for the city clerk and tax collector. There is no attempt at separating the funds. And the bill also fails to charge that appellee Sanders received any funds whatsoever as mayor which he had failed to account for and pay over [858] to the city. There is only a charge that he received so much funds on all accounts and failed to account for a certain portion thereof. This is not sufficient. The bill should have charged with certainty, if the facts justified it, ;'a shortage of funds received by appellee Sanders as mayor and the amount thereof if known, and if not known to be revealed as the result of the discovery feature of the bill. What has been said, however, with reference to the liability- of the surety has nothing to do with the question of the liability of the principal for funds unaccounted for by him. Whether Sanders as mayor received the funds by virtue of his office of mayor or otherwise is immaterial as far as his liability is concerned, provided they were funds belonging to the city of Charleston. The [bill charges that appellee Sanders as mayor collected during his term of office by virtue of his office and also by virtue of his acting for the city clerk and tax collector a certain amount of money, and that he only accounted for a certain amount, leaving in the language of the bill “a net shortage” of thirty-seven hundred, ninety-seven dollars and seven cents. The bill might properly have gone further and charged that demand had been made on appellee Sanders for the amount of said shortage and payment had been by him refused. But taking the bill as a whole, including the interrogatories therein for the purpose of discovery, we think it is sufficient to charge appellee Sanders with being indebted to the city of Charleston in the said sum of thirty-seven hundred, ninety-seven dollars and seven cents, funds belonging to said city collected by him which he had failed and refused to pay over to the city. It follows from these views that the decree of the court below should be- affirmed as to appellee United States Fidelity & Guaranty Company and reversed and remanded as to the appellee Sanders. Affirmed in part, and reversed in part.