Adams v. Arnold ( 1898 )

Woods, C. J.,

delivered the opinion of the court.

The record presents a case of a delinquency, not arising because of any official misconduct of the treasurer, but on account of the robbery of his safe by unknown burglars, with the shortage of the officer disclosed promptly in his first report to the board of supervisors. The treasurer’s own books and accounts, as well as those of the county auditor, will make this •delinquency appear by a correct open account. This officer is not a dishonest one, who has stolen or wasted the public funds and fails and refuses to make good his embezzlement. It is the case of an honest official who has been deprived of a large sum of public money by robbery, and who, under his view of legal liability, is not bound for the return of the sum stolen.

In this case, before the appellant could institute suit on the treasurer’s bonds, it was his duty to give thirty days’ notice to the treasurer to make good the shortage, and his bill should have ‘£ averred the existence of the state of case giving the revenue agent the right to sue.” State v. Taylor, 68 Miss., 730. Not doing so, it was bad on demurrer.

This precise question was considered by this court in Griffin v. Levee Commissioners, 71 Miss., 767, and was decided adversely to the contention here made by appellant’s counsel. In that case we said: ££ The bill filed in the prior suit does not aver that the state revenue agent had given the delinquent tax collector thirty days’ notice to pay over the amount shown to be delinquent by correct open account on the books of the proper accounting officer, and this condition precedent must have been complied with by the revenue agent before his right to sue and collect could arise. ’ ’

It is thought by counsel for appellant that the statute requiring thirty days’ notice to the delinquent to £ £ pay over the amounts ’ ’ of the shortage can have no application tó the treasurer, because there is no other officer to whom he could pay over. This is verbal hypercriticism. If the treasurer replaces the money by paying it into the treasury, he will do exactly what the statute means and requires.

It is asked, why give this officer thirty days’ notice, seeing he has formally announced to the board of supervisors his refusal to make good the loss ? Because the law is so written, and to this official, as to all others in like circumstances, there is the locus penitentice of thirty days. Within that period of grace he may reconsider and pay.

Affirmed.