Sprowl v. Lawrence , 33 Ala. 674 ( 1859 )

R. W. WALKER, J.—

The bond, as set forth in the complaint, recites that the principal obligor was elected sheriff on the first Monday in August, 1853; and it is alleged that the bond was executed on the 20th August, 1853. We will take judicial notice of the fact, that the first Monday in August, 1853, was the first day of that month.—Allman and Wife v. Owen, 31 Ala. 167.

[2.] It thus appears that, at the time the bond was executed, more than fifteen days had elapsed since the election of Duncan as sheriff. Hence arises the question, whether this is a valid “official bond;” or, if not to be considered strictly as an “official bond,” whether it is nevertheless subject to all the remedies provided in reference to “official bonds.” If valid only as a common-law obligation, and not governed, as to the remedies which may be maintained upon it, by the rules applicable to statutory or “official bonds,” it would follow, that a suit instituted upon it must be brought in the name of the obligee.—Wilson v. Cantrell, 19 Ala. 642; Taylor v. Arthur, 9 Sm. & M. 192. And it would also result, that section 131 of the Code, which provides that “official bonds ” are not discharged by a single x’ecovery, would not apply to it.—Garnett v. Yoe, 17 Ala. 74; Stephens v. Crawford, 3 Kelly, 499. This last consideration invests the question, as we have stated it, with unusual importance and interest; and we have examined with much care the sections of the Code which are supposed to bear upon it.

It is insisted that “official bonds,” in the sense in which those terms are employed in sections 130 and 131 of .the Code, are bonds which have been executed, approved •and filed within the time, and which are in the penalty, payable, and condition, as prescribed by the preceding ■sections. For the purposes of this opinion, we may admit that this is so; though we do not desire to be understood as deciding, that a strict conformity to all the directions of those sections is essential to constitute an “official bond,” within the meaning of sections 130 and 131. The boud in this case, not having been approved ■or filed within the time prescribed, does not, according to the concession thus made, belong to the class of instruments designated in these two sections. But, by section 132, “ Whenever any officer, required by law to give an ■official bond, acts under a bond which is not in the penalty, payable aud conditioned as prescribed by law, such bond is not void, but stands in the place of the official bond, subject, on its condition being broken, to all the remedies which the person aggrieved might have maintained upon the official boud of such officer, executed, approved and filed according to law.” In point of fact, therefore, the distinction between “ official bonds,” ■strictly so called, and the bonds referred to in section 132, so far as the remedies to which they are subject are concerned, is rather nominal than real, as the latter, to all intents and purposes, stand in place of the former.

[3-4.] It is insisted, however, that this section does not embrace the bond here sued on, because this bond is in the penalty, and payable and conditioned as prescribed ; and because, moreover, that section only applies to bonds which, though not in the penalty, payable and conditioned as prescribed, have yet been approved and filed in due time.

An examination of the various provisions of the Code, In reference to the bonds of public officers, will satisfy any one of tbe studious solicitude with which the legislature has sought to afford the most ample protection to all persons interested in the performance bj1- such officers of' their official duties. The section we are considering is a part of the legislation designed to effect this general object; and it is our duty to put upon it such a construction, as will harmonize with the substance and spirit of the text to which it belongs. It is a remedial statute; and we .must construe it largely and beneficially, so as to suppress the mischief and advance the remedy; or, in the language of Lord Coke, so as “to add force and life to the cure and remedy, according to the true intent of' the makers of the act, pro bono publico.”—Heydon’s case, 8 Rep. 7; Sedgwick on Statutes, 859-60. It must be admitted, that the words of this section are not as clear and precise as they might be; and it is a well-settled rule, that when the words are not precise and clear, such construction will be adopted as shall appear the most reasonable, and best suited to accomplish the object of the-statute; and a construction which would lead to an absurdity, ought to be rejected.—Commonwealth v. Kimball, 24 Pick. 370; Smith on Stat. Constr. §§ 516-18.

Viewing section 132 in the light of these rules, we cannot assent to the construction of it urged by the counsel for the appellee. The result to which that construction leads, demonstrates, in our opinion, its fallacy. By section 120 it is declared, that the bond of any officer, which is not in the penalty, and payable and conditioned as prescribed by law, “should not be approved;” and that the officer approving the same, “neglects his duty.” Section 132 is evidently based on the supposition, that bonds which were not in the penalty, and payable and conditioned as prescribed, would, or, to say the least, might not be approved and filed; and this for the simple reason, that the officers entrusted with the authority to approve and file, are advised by an emphatic admonition from the legislature that such bonds “ should not be approved,” and that no bond shall be filed unless first approved.—Code, §§ 120, 126. Hence, the language is,, that such a bond, if the officer executing it “acts under it”' shall be subject to all the remedies which could be maintained “on the official bond of such officer, executed, approved, and filed according to law.” These last words seem to imply, that a bond which did not conform to the statutory requirements, as to penalty, payee and condition, would not bo executed, approved, or filed according to law. Aud yet, if the sheriff ads under such a bond, it stands in the place of, and is subject to all the remedies which could be maintained upon the official bond of such officer, executed in all respects in strict conformity to the statute. Hence we conclude, that so far as the operation of section 132 is concerned, it makes no difference, whether the bauds there spoken of have or have not been approved and filed. The bonds referred to in that section, could not be properly approved or filed; for the law expressly declares, that bonds thus defective should not be approved, and that the officer who does approve them violates Ms duty. If a bond is approved and filed, when it should not have been; and if the officer who approves and files it, violates his duty in doing so, the act of approval • and filing, it would seem, cannot be otherwise than nugatory as such, though it would doubtless be convenient and plenary proof of the delivery of the bond by the obligors. This section, therefore, in our judgment, applies to a bond which does not conform to any of the statutory requirements, either as to its penalty, payee, conditions, approval, or filing, provided the officer executing it has acted under it. Much more clearly does it apply to a bond which the officer executing it has acted under, and which does conform to all the requirements of the law, except the last two—approval and filing. To hold otherwise, would be to maintain the paradox, that the validity of the bond is enhanced by its increased imperfections— that a total is less hurtful than a partial departure from the statute, and that an instrument in fact gets better as it grows worse.

[5.] It is urged, however, that section 125 of the Code, which provides that, if any officer fails to file his bond within the prescribed time, “he vacates his office,” is imperative; and that such failure absolutely and instantaneously creates a vacancy in the office, and divests the title of the officer, without the institution of any legal proceedings to have the fact ascertained and adjudged. Hence it is said, that Duncan was not the sheriff when this bond was executed, his light to the office having been completely and irrecoverably lost by his failure to file his bond within the fifteen days. If we concede that this is so, and that Duncan was not at the time sheriff de jure; still, inasmuch as he came into office under color of an election, he was not a mere naked usurper without any claim of right, but he was sheriff de facto ; and his acts, when they concerned the public, or third persons who had an interest in the thing done, were as valid as the acts of a sheriff de jure.—People v. White, 24 Wend. 526; People v. Hopson, 1 Denio, 575; Hall v. Luther, 13 Wend. 494; People v. Stevens, 5 Hill, 630; Crawford v. Howard, 9 Geo. 316; Kottman v. Ayer, 3 Strobh. 94-5; Wilcox v. Smith, 5 Wend. 231; Gilliam v. Redick, 4 Ired. 368; Burks v. Elliott, 4 Ired. 355.

A bond executed by him, and conditioned for the faithful discharge of the duties of the office, will be upheld as a valid obligation; and those who have voluntarily bound themselves, as his sureties, cannot absolve themselves from liability, by alleging that he was no sheriff. It would seem, therefore, that in a suit upon the bond of a sheriff de facto, neither he nor his sureties can allege that he was not sheriff de jure.—Authorities supra; Jones v. Scanland, 6 Humph. 195; United States v. Maurice, 2 Brock. 97, 113; Stephens v. Crawford, 1 Kelly, 574; S. C., 3 Kelly, 499; Iredell v. Barbee, 9 Ired. 250; Green v. Wardwell, 17 Ill. 278; Crawford v. Howard, 9 Geo. 314; Douglass v. Wickwire, 19 Conn. 489; Anlanier v. Gov’r, 1 Texas, 653. If this be so, then the only purpose for which the defendant in this suit could rely upon Duncan’s failure to file his bond within fifteen days, would be to show that the bond does not conform to the statute, and is not subject to the regulations and remedies applicable to statutory bonds; and we have already seen that, for that purpose, the fact of such failure is in this case of no avail to the defendant.

[6.] "We do not think, however, that the mere failure of a public officer to file- his bond, within the prescribed, time, effects his absolute and instantaneous removal from office.

In South Carolina, by an act of the legislature, every master in equity was required, within three weeks after his election, to tender his bond for appi’oval; and, on its being approved, to deposit it with the treasurer, and sue out his commission ; “ and upon his neglect or failure to do so within the said time, his office shall be deemed absolutely vacant, and shall be filled by election or appointment as heretofore provided.” He was also required to take certain oaths, and endorse them on his commission ; “and unless the said oaths be so taken, endorsed, and subscribed, within ten days from the issuing of the commission, the said commission shall be utterly null and void, and the said office deemed absolutely vacant.” The court of appeals of that State, in considering this act, holds, that the tailure of the officer to comply with the above requirements is cause of forfeiture, but not a forfeiture ipso facto ; that the only efficacy imparted to the official title of an officer elect, by a strict compliance with these directions, is to protect the title against forfeiture; and that if the State sees proper to excuse his delinquency, by granting him a commission, the defects of his title are cured, and it is converted into a title de jure, having relation back to the time of his election.—State v. Tomer, 7 Rich. 216; Kottman v. Ayer, 3 Strob. 92; Treasurer v. Stevens, 2 McCord, 107 ; McBee v. Hoke, 2 Speers, 138.

And in reference to a similar statute in Georgia, the supreme court of that State says: “If the sheriff fails to qualify, he forfeits his right to the office. But the proper officers of the law must pronounce the forfeiture.”—Crawford v. Howard, 9 Geo. 316.

Whenever the constitution provides for the election of an officer, he derives his title to the office from the elec tion, and not from his commission, which is the mere evidence of his right.—Wammack v. Holloway, 2 Ala. 31; Kottman v. Ayer, 3 Strobh. 94; Marbury v. Madison, 1 Cranch, 137; Garner v. Clay, 1 Stew. 182. By virtue of his election, Duncan was sheriff, so far as Ms mere right to the office was concerned, before he executed his bond; just as the lawful successor to a throne is king before his coronation. The election having thus invested biro with his title to the office, the statute requiring him to file his bond within fifteen days, and providing that ou Ms failure to do so “he vacates his office,” operates as a defeasance, and not as a condition precedent. The question we are considering is, therefore, analogous to that which arises in reference to corpoi’at-ions, when they do some act which, it is provided by their charter, shall amount to a forfeiture of their vested rights; and the decisions in such eases are in point here.

The supreme court of Louisiana has decided, that the clause in the bank-charters of that State, which declares that, in case of a suspension of specie-payments for more than ninety days, the charter shall be, vpso facto, forfeited and void, gives to the State the right to claim the forfeiture, in an action instituted for that purpose; and although the bank may have forfeited its corporate life, it continues to live as long as the State does not claim the forfeiture.—Atchafalaya Bank v. Dawson, 13 Louis. 497.

In New York, an act of the legislature provided, that whenever any incorporated company shall, for oue year, have suspended business, “such company shall thereby be deemed and adjudged to have surrendered the rights granted by any act of incorporation, and shall be deemed to be dissolved.” This act was construed to mean that in such eases an information may be filed, and pursued to judgment of. dissolution—not that the corporation shall be deemed at an end without such proceeding.—People v. Hillsdale Co., 23 Wend. 257. See, also, Bank of Niagara v. Johnson, 8 Wend. 645; People v. Manhattan Co., 9 Wend. 351; Proprietors, &c. v. Newcomb, 7 Metc. 276; Mechanics’ B. A. v. Stevens, 5 Duer, 676; Mickles v. Rochester Bank, 11 Paige, 118.

It is laid down as an established principle, that until the forfeiture of a charter is judicially decreed, neither the forfeiture nor the cause of it can be inquired into iu another suit, nor can the existence of the incorporation be questioned incidentally or collaterally.—2 Kent, 312, and cases there cited; 13 La. 503.

Our conclusion is, that the failure of a legally elected sheriff, to file his bond within the time prescribed, does not, by its unaided force, operate his instantaneous removal from office; and that a bond, executed by him more than fifteen days after his election, and before any step or proceeding on the part of the State to effect his amotion, must be considered as the bond of an “officer,” within the meaning of section 132 of the Code. "What act or proceeding would be necessary to effect his removal from office, is a question not now before us, and we do not decide it. We limit our decision to the proposition above stated. The necessities of the case do not require us to go, and we do not go beyond it.—See, further, Wammack v. Holloway, 2 Ala. 31; Hill v. State, 1 Ala. 559; McWhorter v. McGhee, 1 Stew. 552; Johnston v. Wilson, 2 N. H. 202.

This construction of the section is confirmed by the legislative interpretation of it, furnished by the act of 1854, (Session Acts, 1853-4, p. 102,) which authorized sheriffs, who had failed to give bond within the time prescribed, to do so at any time before the 1st Monday in March, 1854; and provided that, if they gave such bond, they should not be subject to a forfeiture of their offices. This is a clear declaration of legislative opinion, that by virtue of section 125 of the Code, those sheriffs who had failed to give bond within fifteen days were merely subject to a forfeiture of their offices, but had not absolutely vacated them. Upon any other hypothesis, the act of 1S54 was clearly unconstitutional. If the failure to file the bond in the prescribed time effected, eo instanti, the actual ouster of the officer, and had all the force of a jrrdgment of forfeiture, then it was not in the power of the legislature to restore him to office. The legislature can waive a forfeiture, but it cannot elect a sheriff. A sheriff who has been lawfully deprived of his office, can he reinducted into it only in two ways—by an executive appointment, or a popular election.

[7.] It is insisted, however, that inasmuch as this bond was not executed until more than fifteen days had elapsed after the election, the probate judge had no authority to accept it; and acceptance being essential to delivery, the bond is not a valid obligation for want of delivery. Although the probate judge may have had no legal authority at the time to approve, or even to accept the bond, as a statutory obligation; yet, if it was signed by the obligors, and delivered to him- as the bond of the sheriff, and the latter acted under it, it is to be considered as delivered to the judge for the benefit of all persons wlio may be interested in the discharge by the sheriff of the duties, which it is therein stipulated he will perform; and it will be upheld as a valid obligation. In sucli cases, any act, which is intended by the obligors as a delivery of the instrument, will be so treated.-—-Stephens v. Crawford, 3 Kelly, 508; Thomas v. White, 12 Mass. 368; Green v. Wardwell, 17 Ill. 278; Crawford v. Howard, 9 Geo. 317; Speake v. U. S., 9 Cranch, 28; Alston v. Alston, at the present term.

It is true that a different principle was announced by the supreme court of North Carolina, in Shirley’s case, 1 Iredell, 597; and this decision was adhered to in subsequent cases. In the State v. Pool, 5 Iredell, 112, Chief Justice Ruffin states, that the rule, as settled in Shirley’s case, was adopted “with much hesitation, and against his impression.” See, also, State v. McAlpin, 4 Iredell, 148. It is certainly opposed to reason, public convenience, and authority; and wo cannot consent to adopt it.

We hold, therefore, that a bond, executed by a legally elected sheriff, more than fifteen days after his election, and under which he has acted as sheriff, is subject to all the regulations applicable to “official bonds;” that on its condition being broken, it may be sued on by the person aggrieved in his own name; and that successive recoveries may be had thereon, until the whole penalty is exhausted.

[8.] The complaint, however, is defective, because it does not aver'that the bond was delivered, or that Duncan, as sheriff, acted under it. The form in the Code (p. 553) must be understood to apply to cases where the bond is upon its face valid. But in this case, the suit being in the name of the party injured, and the complaint disclosing the fact that the bond was not executed and filed within fifteen days after the election, no right of action is shown. To render this bond valid as a common-law obligation, its delivery as a security for the faithful discharge of the duties of the office of sheriff was necessary; and to bring it within the influence of the regulations applicable to official bonds, so as to authorize a suit in the name of the person injured, it must not only have been delivered, but the principal obligor must have acted under it as sheriff. The averment of these essential facts being omitted, the demurrer was properly sustained.

The judgment of the circuit court is affirmed.