Town of Cicero v. Hall , 144 Ill. App. 589 ( 1908 )

Mr. Justice Brown

delivered the opinion of the court.

We have just filed an opinion in the cause of the Town ■ of Cicero v. Louis Grisko et ah, ante p. 564, in which the failure of the so-called Lincoln Bank at Morton Park, and its effect on the funds of the town in the hands of its Treasurer were involved. That opinion shows to some extent the state of things which brought about the failure. The suit at bar is one of its effects, and the defendants unfortunate victims of it. But we can see no valid defense to the claim of the town shown in this record.

One line of argument of the appellant company which was surety on the bond sued on, as shown by a proposition of law tendered by it to the court and refused, is (a) that the bond was not in substance, even the same as the bond required by statute, and (b) that the bond given being substantially different from the satutory bond, the surety is not liable “for money which the collector in good faith and without negligence” deposited in a bank, and lost by the failure of that bank.

The second clause of the proposition is plainly a non-sequitur. If the bond is not in accordance with the statute it may still be valid as a common law bond, and the question of the liability of the surety in the ease is to be determined not arbitrarily by the fact of the difference, bnt by the terms of the bond given.

Another line of argument of the appellants, as shown by another proposition of law rejected by the court, is that in the present case (a) the covenant “to pay over money”, found in the bond sued on, is merged in the covenant faithfully to perform the collector’s duties, and (b) that if the officer otherwise faithfully performed his duties and “honestly and in good faith” deposited money in a bank, which money was lost by the failure of said bank, the surety is not liable.

The connection of these two propositions also involves a non-sequitur, for the question whether the collector has faithfully performed his duties when he has deposited the money in a bank of his own choosing, depends on what the law makes his duty with reference to that money.

Neither proposition as offered 'was sound, and they were properly refused.

Nor is the basis on which either argument rests sound in its premises. We do not think that the bond given differed substantially from the bond prescribed by statute, nor that the covenant “to pay over money” in this case was merged in the covenant “to faithfully perform”.

The bond as given appears in the statement prefixed hereto. Its condition is that:

“Joseph Hall shall faithfully account for all moneys that may come into his hands as such collector, and pay over the same, pursuant to the provisions of law or the order or resolution of the Board of Trustees of the Town of Cicero, and shall faithfully perform the duties of his office to the best" of his skill and ability”.

The condition prescribed for the collector’s bond by section 6 of the charter of the Town of Cicero (Private Laws of 1869, vol. 3, p. 668) is: “That he will well and truly pay over and account for all moneys that may come into his hands as collector to the party or parties entitled thereto, and that he will faithfully discharge the duties of his said office”.

We do not think there is any substantial difference in these conditions. To pay over money “to the party entitled thereto” is to pay it over “pursuant to the provisions of law”, and vice versa. We do not think the addition of the words “or the order or resolution of the Board of Trustees of the Town of Cicero” substantially changes the required condition. It is not to be presumed that the Trustees would order the money turned over to parties not entitled by law to receive it.

Certainly the addition of the words “to the best of his skill and ability” do not add or subtract anything •from the words “faithfully perform the duties of his office”. We know of no case where their conventional use has been held to excuse default resulting from ignorance or credulity not excusable or justifiable in a public officer.

But if the bonds are different, and the bond given merely a common law and not a statutory bond, there is still no doubt that to escape liability in this case, where money received by Hall as collector was not paid over to any one but an insolvent bank selected by himself—which bank had no claim to it—the surety must show that the collector has, notwithstanding such failure, complied with the conditions of the bond he gave. It is plain he did not. He neither faithfully “paid over” the money that came into his hands pursuant to the provisions of law or the order or resolution of the Board of Trustees of the Town of Cicero, nor did he “faithfully perform the duties of his office to the best of his skill and ability”.

The obligations and duties of a town collector are very different from those of the officers or employes and agents mentioned in the cases cited by appellants.

In C., B. & Q. R. R. Co. v. Bartlett, 120 Ill. 603, for example, the principal in the hond was a paymaster of a railroad, from whom the money was stolen, and as the headnote puts it, the court held that “where the company required such agent to keep the moneys in a room not properly protected against the entry of thieves or burglars * * * ' and a large sum was stolen from the safe during the temporary absence of such agent, without any neglect of duty or want of care on his part, the agent could not be held liable on his bond conditioned that he would account for all moneys coming to his hands”.

The difference between such a case and the present one needs no elaboration. In this case the town did not prescribe the place of deposit to the Collector. It did not oblige him to keep the money anywhere. It presumably invited him to turn it over to the treasurer as nearly as possible as he collected it.

That a collector for a municipality giving a bond “to faithfully perform the duties of his office”, even were there nothing else conditioned in it, should be excused from paying over money which he had collected for the municipality by showing that he, of his own volition, had loaned it to an insolvent speculator, whether such speculator did business under the name of a bank or otherwise, would be a very dangerous doctrine to hold.

But that is what the defense amounts to in this case. The Lincoln Bank was William J. Atkinson. The “deposit” in the Lincoln Bank is what all general deposits in a bank are—a loan on demand to . the “Bank”—in this case William J. Atkinson. He was insolvent and could not pay it back. Mr. Hall may be morally guiltless, but he is legally responsible for the money. His bondsman is responsible with him. It would be judicious for bonding companies to keep closer watch of the investments and deposits of public money.

The questions raised in this case concerning the necessity for demand and of the allowance of interest do not differ from those discussed in Cicero v. Grisko et al., before referred to.

We think the judgment of the Municipal Court is correct and should be affirmed, and it is so ordered.

Affirmed.