City of St. Louis v. Foster

LboNARB, Judge, delivered the opinion of the court. The questions to which our attention has been mainly called in the present ease are the competency, as against West the security, of Foster’s admissions, made after the expiration of his term of service, and the sufficiency of the proof of the delivery and receipt of the water licenses, to make out a 'prima facie case against the defendants of money had and received to the use of the city. It was the duty of the eity register to deliver to the superintendent blank water licenses from time to time, as the latter should require them, and to take duplicate receipts therefor, one of which he was required to file with the city auditor, whose duty it was thereupon to charge the superintendent with the amount thereof. The duty of the superintendent was to issue the licenses to the applicants, receive the money therefor, and pay the same weekly into the city treasury. He was also required to report quarterly, under oath, to the city auditor, all licenses issued by him, the amount received therefor, and the payments made by him to the treasurer, and to exhibit at the same time to the auditor the unissued licenses, and to settle the preceding quarter’s account between himself and the city. None of these things, it seems, were done ; none of these officers discharged their duties as required by the laws of the city; and it is argued that, although if the charges had been duly made in the auditor’s office, they would have been good evidence against the superintendent that he had received the money upon the licenses that were unaccounted for, yet that no such presumption arises here against the superintendent, the other officers having failed to discharge their duties, in this particular, as required by the ordinances of the city. We do not feel the force of this argument. If all the officers, engaged in these transactions, had properly discharged their duties, then [146] no doubt the eharges on the auditor’s boohs against the defendant would have been sufficient prima facie evidence against him of indebtedness for the balance due upon the licenses delivered, after deducting the amount paid by him into the treasury, and the unissued licenses exhibited by him to the auditor. But we do not see how the failure of the register or auditor to do their duty excused the superintendent from making to the auditor the quarterly report of money received by him, and of the money paid into the treasury, accompanied by an exhibition of the licenses remaining in his hands unissued ; and his failure to do so, or to otherwise account for the unissued licenses, is sufficient prima facie evidence that he received the money upon all the licenses delivered to him, and it was therefore his duty upon the trial to account for all the licenses shown to have been received by him. Of course, this made out only a prima facie case against him, and he was at liberty to meet it by showing what had in fact become of the licenses upon which the money had not been paid into the treasury ; but, in tbe absence of such proof, the fair presumption, from the receipt of the licenses and the failure to account for them according to law, or otherwise, must stand. The judgment, however, we think, must be reversed, because the court received in evidence against the surety, the admissions of Foster after the expirationof his term of service, made at the meeting of himself, Papin and others at the register’s office, in June or July, 1858. Of course, all the official acts of the officer bind him and his security ; but his unofficial admissions, both oral and written, made after he was out of office, are not competent evidence against his security. (1 Greenl. Ev. sec. 187; Smith v. Whittingham, 6 Carr. & Payne, 78; Blair v. Per. Ins. Co. 10 Mo. 566; State v. Bird, 22 Mo. 470.) The judgment is reversed, and the cause remanded.