Board of Comm'rs v. Leahy , 24 Kan. 54 ( 1880 )

The opinion of the court was delivered by

Horton, C. J.:

The vital question in this case is, whether the bond sued on is valid. The trial court held that it was executed without authority of law, and likewise without consideration, and therefore was void. As it appears from the findings of fact that after the execution of the first bond by the county treasurer, the taxable property of Neosho county had largely increased, and the amount of taxes had correspondingly increased, the necessity for the new or additional bond must be admitted. It cannot, therefore, be urged that the order for the bond was capriciously or arbitrarily made; if the power to require the bond inhered in the board of county commissioners by the provisions of the statute, the power was legitimately and justly exercised. It is expressly provided in §179, Comp. Laws Í879, p.311, that the refusal^ or neglect of a county officer to renew his official bond within the time prescribed by law, shall vacate his office. This cannot be interpreted as referring to the new bond an officer is required to give upon being reelected, because such an interpretation eliminates “or renew” from the section — it leaves the words without force or meaning. The execution of a bond by an officer upon being reelected is not the renewal of his bond; it is merely giving his official bond before entering upon an additional term of office. As the statute refers to a renewal bond, it follows that the lodgment of the power to demand a renewal bond ought to exist somewhere. The statute leaves with the county commissioners the duty of fixing the penal sum of a county treasurer’s bond, and the approval of the sureties thereto. Then, § 3 of ch. 25 prescribes that the powers of a county, as a body politic and corporate, shall be exercised by the commissioners, and under §36 of said chapter these officials represent the county and have the care of the county property and the. management of the business and concerns of the county in all cases where no other provision is made by law. Now it would seem that as representing the county, a county board, by virtue of these powers, would have the authority, when the public interests absolutely required the execution of a new bond by a county treasurer, owing to the insolvency of the securities after the acceptance of the official bond, or the levy of increased taxes for various purposes not anticipated when the original penal sum of the bond was fixed, to demand of the treasurer an additional bond. Clearly, such authority ought to exist. It often happens that a bond, amply sufficient when accepted, becomes, in a few months, insufficient from the financial failures of the sureties, and if there is no authority to compel the execution of an additional, or an increased bond on the part of a treasurer, the statute fails to fully protect the funds that come into his hands by virtue of his office. We think the omission does not exist. We think that the commissioners, acting for the county, and, by virtue of the provisions of the • statute relating to their duties and the duties of the treasurer, representing the state and the municipalities interested in the different funds to be collected by the treasurer, had the authority to make the order of January 8, 1872, requiring the treasurer’s bond to be increased to the sum of $150,000, and that the bond executed in accordance with the order is valid. Whenever, for good cause, a renewal bond is required of a treasurer by the board of county commissioners, the reasonable time allowed to the officer to execute the same will be deemed the time prescribed by law.

This conclusion does not place a county officer within the control of the whim, caprice, or political feeling of any county board, as an additional bond cannot be demanded except for some reasonable cause, and the law will protect a county official from an arbitrary or unjust demand, or an arbitrary or unjust removal.

The suggestion that the counsel who appear in this court for the plaintiff in error have no right or authority to appear for the board of county commissioners, is without merit. This is a civil proceeding. Where an attorney at law makes an appearance in a court in such a case, it will be presumed, in the absence of anything to the contrary, that he has authority for such appearance. (Esley v. People of Illinois, 23 Kas. 510.)

Under §7, ch. 39, Gen. Stat. 1868, any excess over two thousand dollars which accrued from the fees of a treasurer, as allowed by law, was to be paid into the county treasury, and placed to the credit of the county, where the population of the county was less than 15,000. The findings show, that during Leahy’s term of office, Neosho county did not have 15,000 inhabitants. As the county was entitled to the excess retained by the treasurer, the action was rightfully brought in the court below in the name of the board of county commissioners of the county of Neosho. There is no constitutional inhibition against the power to turn over the said excess to the county as a county fund, and the provision to that effect cannot be called an unwarrantable stretch of legislative authority.

We have examined the other matters presented by the counsel, but we think it unnecessary to comment further upon the case.

The judgment of the district court will be reversed, and the case remanded with directions to enter judgment upon the findings of fact, in favor of the plaintiff in error for the sum of $1,073, with interest.

Valentine, J., concurring. Brewer, J., dissenting.