Lincoln Cty. v. Fidelity & Deposit Co. of Md. , 102 Idaho 489 ( 1981 )

SHEPARD, Justice.

The single issue on this appeal is whether the action is barred by the statute of limitations. Defendant-appellant, Fidelity and Deposit Company of Maryland, issued performance bonds in increments of two years covering Myron Johnson, the treasurer and tax collector of Lincoln County during his terms of office (two years) from 1941 to 1971.¹ Johnson left office in 1977 when it was discovered he had misappropriated funds and failed to collect delinquent taxes. Lincoln County brought action on the bonds. Fidelity and Deposit Company filed an I.R.C.P. 12(b)(6) motion to dismiss, or in the alternative for summary judgment, on the basis that the action was barred by the statute of limitations. The district court issued an order denying such motion and filed its certificate indicating that the issue presented a controlling question of law and the Supreme Court review of the otherwise unappealable denial of the motion would obviate lengthy and expensive litigation. This Court agreed and issued its order permitting appeal by certification. See I.A.R. 12(a). We reverse.

-[1] It is clear that I.C. § 5-218(1) is the applicable statute of limitations in actions by a county against the surety of a defaulting county official. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930); Canyon County v. Moore, 34 Idaho 732, 203 P. 466 (1921); County of Ada v. Ellis, 5 Idaho 333, 48 P. 1071 (1897).

I.C. § 5-218(1) was amended in 1974 to its present form and language. In its pre-1974 language, the statute provided for a three year statute of limitations. This Court has held that under the pre-1974 statutory language a cause of action against a surety accrues at the end of the official’s term of office. St. Anthony v. Mason, supra; Canyon County v. Moore, supra. This Court has never dealt with a situation as presented here where an official has served several successive terms of office during which defalcations have occurred. Other jurisdictions have held, however, that a cause of action on the bond accrues at the end of each individual term during which a defalcation occurs notwithstanding that the official has served additional successive terms since each term of office is distinct and the fact that an official is his own successor is of no consequence. See State ex rel. Grassie v. Masterson, 221 Kan. 540, 561 P.2d 796 (1977); Saginaw County v. Kent, 209 Mich. 160, 176 N.W. 601 (1920); Bitter v. Bexar County, 266 S.W. 224 (Tex.Civ.App. 1924); City of Hillyard v. Carabin, 96 Wash. 366, 165 P. 381 (1917); County of Platte v. New Amsterdam Cas. Co., 6 F.R.D. 475, 495-96 (D.Neb.1946); 20 C.J.S. Counties § 160 (1940); 67 C.J.S. Officers § 293 (1978).

In the instant case a cause of action under pre-1974 I.C. § 5-218(1) accrued at the end of each of Johnson’s individual terms. Fidelity’s final bond on Johnson was for -that term of office ending January 12, 1971. Thus, in the absence of other factors, the statute barred any claim on Fidelity’s bond following January 12, 1974. The district court held and Lincoln County argues here that a judicial exception should be engrafted extending the otherwise governing statute of limitation to such time as the defalcation was or should have been discovered. That argument was made, discussed and rejected by a majority of the Court in Canyon County v. Moore, supra. We deem the pre-1974 statute to be clear and unambiguous. When the language of subsection (1) of the pre-1974 statute is compared with the language of subsection (4) of that statute, it is clear that the legislature was aware of the discovery rule and determined to make it applicable to causes of actions falling within subsection (4), but not to actions falling within subsection (1). We also note in passing the absence in the instant case of the policy considerations which impelled the decisions of this Court in Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970) and Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964).

Lincoln County next argues that this Court should construe the pre-1974 statute as containing a discovery exception to the three year statute of limitations on the basis of the language contained in the 1974 amendatory legislation. That legislation provided: “The purpose of this act is to clarify the law with respect to the statute of limitations applied to bonds of public officials.” 1974 Idaho Sess. Laws ch. 240, § 1. Lincoln County argues that said language indicates that the legislature was announcing the then existing law rather than changing the then existing law. Following that legislative enactment, I.C. § 5-218(1) provides:

“An action upon a liability created by statute, other than a penalty or forfeiture. The cause of action in favor of the state of Idaho or any political subdivision thereof, upon a surety bond or undertaking provided for or required by statute shall not be deemed to have accrued against any surety on such bond or undertaking until the discovery by the state of Idaho or any political subdivision thereof of the facts constituting the liability.”

Such language is clearly a substantial departure from the pre-1974 statutory language and clearly engrafts a discovery rule upon the pre-1974 language. When a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment. Wellard v. Marcum, 82 Idaho 232, 351 P.2d 482 (1960); Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957).

Lincoln County finally argues that the 1974 legislative amendment of I.C. § 5-218(1) is or should be retroactive in its application. No statute is retroactive “unless expressly so declared.” I.C. § 73-101. Section 3 of ch. 240 of the 1974 Idaho Sess. Laws states:

“An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, and shall apply to all causes of action against any surety on any such bond or undertaking, which said causes of action shall have been discovered by the state of Idaho or any political subdivision thereof within three (3) years immediately preceding the date of passage and approval of this act.”

Thus, the only express declaration of retroactivity contained in the amendment of 1974 is to causes of action discovered within three years preceding the date of its passage, i. e., April 3,1974. See also Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

We hold that the instant cause of action against Fidelity and Deposit Company of Maryland is barred by the statute of limitations. The orders and decisions of the trial court are reversed and the cause is remanded for further proceedings consistent herewith. Costs to appellant.

BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.

1 . Western Surety bonded Johnson in two year increments from 1971-1979. Western Surety is a party below but not an appellant here.