Ex parte Plowman , 53 Ala. 440 ( 1875 )

MANNING, J.

The Revised Code provides (§ 784) that “ Befoi’e entering on the duties of his office each judge of probate must give bond, with security, to be approved, and for a sum not less than five thousand dollars, to be fixed by a judge of the supreme court, or of the circuit court, or a chancellor.”

This bond must be made payable to the State “with such securities as the approving officer is satisfied are sufficient,” and be conditioned faithfully to discharge the duties of such office during the time he continues therein or discharges any of the duties thereof (§ 157). By § 4094 it is made “the duty of the grand jury,” among other things, “to examine into the condition of the bonds of all county officers with regard to their correctness and sufficiency, and to report upon the same.”

The bonds in this section referred to are those of persons in office which have theretofore been taken, approved and filed. Beport is to be made from time to time of “their correctness and sufficiency.” This action of the grand jury is not intended to be an idle ceremony. Lex neminem eogit ad vana seu inutilia. It has an object. What else can this be than that, if any of the bonds are incorrect, the error shall be corrected? If any of them be in any respect insufficient, they shall be made sufficient. This is the manifest intention of the enactment. And the object is one of the highest public concern. It relates to the safe keeping of all the public moneys, amounting to an immense annual sum, and of all belonging to individuals which go into the hands of the officials of the several counties in this State, and whose duty it may be to take charge of or collect them. Into the hands of the tax collectors go all the revenues that are collected from the people of their respective counties for State or county purposes; without which revenues the organization of government could not be kept up, courts could not perform their functions, the laws be enforced, or life and property be protected. Sheriffs receive the moneys of the numerous persons who have to invoke the aid of the State through its courts to compel those who owe them to pay their debts, or wrong-doers to make reparation to them. And the judges of probate have charge of the estates, and often of large sums of money, belonging to the widows and orphans of persons deceased, and collect license moneys and other funds for public use. Therefore, it is quite as important that the bonds which these and other officials are required to execute before going into office shall be valid, sufficient in amount and supported by good and responsible sureties, after the principal obligors are in office, as before. And we cannot doubt that upon the report made by the grand jury in respect to petitioner Plowman’s bond, it was the duty of the circuit judge, under the enactments cited, to require of Plowman a new or additional bond which should' make good the deficiency.

If the circuit judge has not authority to cause this to be done, no one else in the State has. To no other official has it been expressly and exclusively confided. Only he, or a judge of the supreme court, or a chancellor, has authority to approve the first official bond of a probate judge, and his authority to do so is equal to that of either of the others; while he is, besides, the judge of the court of which the grand jury is an organ, and in which and to which the report is made. Such a report, in our opinion, renews, if that be necessary, in the circuit judge, the same power and duty to require of the probate judge a new or additional bond, to supply the defect reported, as he had to require of him a good and sufficient first official bond, “before entering-on the duties of his office.”

This is our view of the law, without reference to the provisions of sections 174, 175, 176 and 177 of the Revised Code, which the counsel for petitioner insists are not applicable to this case, and are also superseded by the act of March 17th, 1875, entitled “'An act to secure good and sufficient sureties on the bonds of county officers of this State.”

Section 174 enacts that “any judge of probate, clerk of the circuit court, or any other officer whose official bond is required to be approved by a judge of the circuit court, must, upon the address of a majority of the grand jury of the county, ..... made in term time to the presiding judge of the circuit court,........be required by such presiding judge, or in vacation by a judge of the circuit, to give an additional bond.”

Section 175 contains similar provisions respecting the bond of a sheriff, or any other officer whose bond is required to be approved by the judge of probate.

Section 176 directs how the requisition shall be made and served.

Section 177 is as follows: “Such officer must give such additional bond ten days after the day specified in such requisition, and failing so to do, he vacates his office, and the officer making the requisition must at once certify the same to the appointing power, by whom the vacancy must be filled.”

The obvious effect of these plain provisions, counsel for petitioner argue, is nullified, in respect to the case now before us, by section 178, which says: “ Such additional bond must be in the same penalty, and payable, conditioned, approved, and filed, in the same office as the first official bond.”

The operation of this section, it is insisted, is to restrict the general terms of the preceding sections so as to make these applicable only to bonds that are defective on account of the insolvency of the sureties. Hence, if by mistake it should happen, as we are told once did happen in respect to a sheriff’s bond in the same county, a first official bond is taken in the penal sum of ten dollars ($10), when it was intended by the officer approving it to be taken in the sum of $10,000, and the bond is reported by a grand jury as defective on that account; or if one is reported as incorrect in the condition of the bond, or in the manner in which it was made payable, and for that reason insufficient or invalid, the new or additional bond must be taken with the same insignificant penalty, or copied with the same errors, that made the first one an insufficient or even invalid security; or else no new or additional bond could be required at all.

We cannot agree with the learned counsel in this argument. A law respecting public rights and interests should be liberally construed, so as to make it effective against the evil it was intended to abate, when this can be done without depriving any individual of his just rights. Public offices are not the property of those who occupy them, but belong to the State. The incumbents are tenants of them under the State, and are entitled to remain such only upon complying with the conditions on which the laws of the State permit them to be held. And in reference to offices to which pertain duties of a ministerial and fiduciary character, one of these conditions is that the incumbent shall give security sufficient, according to the judgment of other officials on whom the duty of passing such judgment is devolved, to insure á faithful exercise of the office, or a just responsibility to those who may be injured by a failure so to exercise it. Bonds which were not made in proper form, or with an adequate penalty, or conditioned according to law, are not within the scope or intention of section 178. It must, therefore, be held applicable only to bonds which are insufficient because the sureties have not property enough to make them responsible in fact for the amount of the penalty — and not as repealing in part, or modifying, the preceding sections, so as to limit by implication their obvious and salutary purpose and effect. A decision similar in its nature to this was made by this court upon like considerations, in Sprowl v. Lawrence, (33 Ala. 674).

The act of 1875 to secure good and sufficient sureties upon the bonds of county officers, which authorizes five freeholders of a county, upon oath taken and bond given similar to the oath taken and bond given in an attachment suit, to move that a county officer be required to give an additional sufficient official bond, is supplemental only to the provisions in the Revised Code on the same subject, and does not repeal or supersede them. It still remains the duty of the grand jury to examine and report on the correctness and sufficiency of the official bonds of county officers — a duty particularly appropriate to a body composed generally of citizens selected from every part of the county, who should be distinguished for intelligence and respectability, and who come together without previous agreement among themselves, and act under oath, as the grand inquest in respect to crimes and delinquencies within the county. A service so important, which individuals, from the desire to avoid making enemies, are generally reluctant to take upon themselves, and often would not if required by a bond to assume personal responsibility for what concerned them no more than it did the rest of their fellow citizens, would not be taken from such a body as the grand jxxry without explicit expressions of such an intention.

The substance of the grand jury’s report was that the penalty in the official bond of petitioner was for a very inadequate sum. They had a right to intimate, and it was proper they should, how much larger in their opinion it ought to have been. And the plain inference is that they thought fifteen thousand dollars was as small an amount as he ought to be required to give security for. But the opinion of the grand jury, although valuable as information, does not control the judgment of the circuit judge. ■ The law makes him the arbiter in respect to the penalty, and the exceptions taken to the requisition for not conforming in this particular to the report, were properly overruled.

There was no error in the rulings excepted to.

But the recital in the bond tendered of the action of the grand jury omits to show that their report was that the penalty of the first bond was insufficient in amount. This, and the fact that the new bond by order of the circuit judge was-for the same sum and payable and conditioned as the original bond, would leave it open for litigation hereafter, whether, under sections 181 and 182 of the Revised Code, the additional bond was to be construed as augmenting the penalty, or only as furnishing additional sureties for the original penalty of $7,000, as the total amount for which all should be responsible. This was a defect in the bond tendered, and the petitioner having been elected by the people of his county to the office he occupies, and the questions of law involved having perhaps prevented his executing a sufficient additional bond, and the vacancy not having been certified to the governor, the circuit judge ought by a new requisition, issued and served according to the statute, to allow petitioner another opportunity of ten days within which to execute another bond for such sum as the judge may consider sufficient, and with such a recital in it as would prevent any misapprehension on the subject that the additional bond was taken because the original was for a sum that the grand jury reported and the judge considered to be inadequate. On this point there ought to be no doubt.

The motion of petitioner is overruled and refused at his costs.