Tooele County v. De La Mare , 90 Utah 46 ( 1936 )

I shall express my opinion to the various issues and arguments advanced in this case by setting out the following propositions which I think correctly reflect the law: (1) The constitutional provision respecting the time when an elective officer takes office does not prevent the Legislature from passing an act providing that an incumbent shall hold over until his successor is elected and qualified. (2) That qualification of the successor as a de jure officer includes not only the subscription and filing of the oath, but the filing of an approved bond. (3) That an elective officer has the right to hold over until his successor is elected and qualified under the statute, but that he cannot be compelled to so hold over and that he may resign or relinquish his office. (4) That he must still be exercising some functions of his office left to relinquish in order to make a resignation. (5) That in the instant case, automatically Miss De La Mare's regular term expired and that she was entitled to hold over until her successor qualified. (6) That she was not required to hold over until her successor qualified and that she did relinquish her office on the 5th day of January, 1931, and the part of the period she was entitled to serve which she relinquished was that part which she was entitled to hold until her successor was qualified; she having already served her constitutional term. (7) That resignation ordinarily requires written resignation accepted by the proper officials and that the proper officials are those who have power to appoint in the case of a vacancy; in this case, the county commissioners. (8) That in this case she did what is equivalent to resigning. She intended to relinquish the office; did all that she could to relinquish it; that such relinquishment was recognized by the county commissioners, in that they appointed her deputy and recognized Mrs. Campbell as holding the office of treasurer. (9) That as to third persons dealing with the treasurer's office and the public generally, Mrs. Campbell was a de facto officer. (10) That a county treasurer relinquishing her office has no authority or power to turn over the moneys to an unqualified successor or a de facto officer (de facto as to third parties only) who has not filed an approved bond. (11) While it may not be the duty of the treasurer who has vacated her office to determine the legal validity of the bond, but only to determine that an approved bond has been filed, yet she has not fulfilled the duties of her office to account for or pay over moneys or safely keep them when she turns them over to a person who has not qualified and in regard to whom she might by a simple inquiry of the clerk determine the qualification. (12) That if she made the effort to determine from the clerk's office as to whether an approved bond had been filed and had been so told, she might have performed her duty in that regard, as it would hardly be her duty to search the records of the clerk's office herself. (13) In this case she omitted to do the least of diligent things, to make a simple inquiry of the clerk's office as to whether an approved bond had been filed. This gives her the best of the situation. The worst of the situation is that she may have been informed by the county commission that the bond would be filed, which, of course, would put her on notice that it actually had not been filed. (14) That even though she has vacated that part of the period for which she was entitled to hold over, she still had the duty to pay over to a qualified successor the moneys, and if such duty were not performed her bondsmen would be liable even though such duty were a duty which could not take place while she was treasurer (she having already relinquished as treasurer). This bond reads as follows:

"That if the above bounden Isabel De La Mare shall faithfully and truly perform all the duties of his office and shall pay over and account for all funds coming into his hands by virtue of his said office of County Treasurer as required by law, then this obligation to be void. * * *"

Ordinarily, a surety is only liable for the default of its principal committed during the time the principal occupies the office, but I think the surety is liable for a failure to perform the duty to pay over and account even after the office is vacated. At all events, the language of this bond appears to make the surety liable for Miss De La Mare's paying over all funds which she obtained by virtue of her office; that is, whether or not she ceased to be treasurer at the time the duty of paying over should be performed. (15) Therefore, in this case there is a failure of the principal to properly perform a duty for which the surety is liable. (16) The omission of this duty resulted in the loss, because if she had paid over to a properly qualified successor, that successor would have been covered by a bond and such surety would have paid the loss to the failed bank. The chain of causation is not broken. Her failure to pay to a properly bonded successor resulted in the county's losing the money. The failure of the bank was not an intervening, independent cause. The very purpose of having the bond of a treasurer is to insure, among other things, the payment of the money in a case a depositary fails. When Miss De La Mare, therefore, paid to one who did not have such a bond, she paid to a person who was not properly protected against the loss of public funds. Such payment over, therefore, can be considered as the proximate cause of the loss. (17) The funds were sufficiently turned over to Mrs. Campbell by the transactions which took place in the bank, contrary to some authority. I think the bank was a debtor to the county as well as to the incumbent county treasurer. BeaverCounty v. Home Indemnity Co., 88 Utah 1, 52 P.2d 435. When one apparently county treasurer was substituted for another as the bank's creditor, the county remaining throughout the paramount creditor, a sufficient transfer of the funds took place. It did not require an actual delivery of the cash. A transfer of the credit in the bank from one to the other was an efficacious, modern business way of making transfer of funds. (18) The minutes of the county commission are evidence of the acts of the county commissioners, and the preambles and narratives endeavoring to show the motive for the acts may be evidence of the motive but are not evidence of the events or facts which the preambles or other narration purported to state.

It can therefore be seen that I am in accord with the prevailing opinion as to all propositions except (11), (12), (13), (14), and (15). The result arrived at by the prevailing opinion made it unnecessary for the author of that opinion to come to any conclusion as to the matters contained in the above propositions (16) and (18). But I am unable to follow the views of the esteemed Chief Justice in regard to Miss De La Mare having performed her duties in turning over the money to Mrs. Campbell while no approved bond was filed by the latter and with no more diligence than to either assume that such bond was filed or lightly accept the statement of the county commissioners that one would be filed. We have held treasurers to a very high degree of care and diligence in disposing of and caring for public moneys. The duty to "safely keep" is not discharged by transferring to a treasurer who may, as to creditors or outsiders dealing with the treasurer's office, be a de facto officer, but who, as far as an outgoing treasurer is concerned, is not de facto or de jure a treasurer for the purpose of committing to her charge large sums of public moneys because of failure to qualify. I cannot see that the Jeppson Case has any bearing. The treasurer as far as the safekeeping of public moneys is concerned has a duty absolute, independently of any orders which the county commissioners may give. The duty is statutory, invested in her by force of law independently of and not through the jurisdiction of the county commissioners. Can it be said that any county treasurer could justify in any case for the failure to "safely keep" public funds because she was told to do certain things with the money which were contrary to prudent management, proper diligence, or statutory duty? Her office does not come through appointment by the county commissioners. Her duties are those as prescribed by statute and perhaps certain others arising by instructions from the county commissioners, but the duty to "safely keep" county funds is one which she is required to perform even if it requires her to run counter to instructions of the county commissioners. In former decisions we have held that even destruction of public moneys by an act of God will not relieve the treasurer or his surety. It was said in the case of Salt Lake County v.American Surety Co., 63 Utah 98, 222 P. 600, 602: "The statutes of this state make the county treasurer liable on his official bond without any qualification whatever." Beaver County v.Home Indemnity Co., 88 Utah 1, 52 P.2d 435. Now we permit the treasurer to escape liability on her official bond by turning over the county money to an elected but unqualified person without even the diligence of inquiry at the clerk's office as to whether such elected person has filed an approved bond. We have strained at one camel but swallowed another. I cannot believe that this court, as appears inferable from the main opinion, desires to record itself in favor of a proposition that the county treasurer could escape liability on her bond if she followed instructions of the county commissioners as to what to do with public moneys.

In the light of the former decisions of this court, it is apparent that the duty to "safely keep" is a duty special, absolute, and sacred with the county treasurer, and one which cannot be delegated or the responsibility of a failure to perform which cannot be evaded, escaped, or shared by following any other person's judgment or instructions, whether such person be another official or a private person. No board or official has any "general jurisdiction" to control the duty or responsibility of the treasurer to safely keep public moneys. The prevailing opinion says:

"As far as made to appear Miss De La Mare was never informed that her successor had failed to furnish a bond until it became evident that it would be to the advantage or interest of the county to find a treasurer with a bond."

I can subscribe to the idea that the county commission may be looking for some responsible party from whom to collect but whatever the motive, the law as to responsibility remains the same. Certainly, Miss De La Mare could not expect some one to come and tell her that Mrs. Campbell had not filed a bond. It was part of her duty to determine whether she was turning public moneys over to a properly protected official as part of her duty to "safely keep" such moneys.

I am unable also clearly to determine on which ground Miss De La Mare is exonerated by the prevailing opinion. It first appears to be placed on the ground that Mrs. Campbell was the recognized and acting county treasurer and that Miss De La Mare could then treat her as the de jure treasurer for turning over the money; later it appears to place the decision on the ground that Miss De La Mare followed instructions of the county commissioners who were her superior officers and which she had a right to follow being fair on their face and within the jurisdiction of the commission. I can see some tenability to the first ground, although I do not agree with it because I believe, as heretofore indicated, that the duty of the outgoing treasurer in turning over public moneys to another person as treasurer involves the requirement to ascertain if the successor was qualified, or at least use due diligence to so ascertain, and that her duty is not fulfilled by dependence on the supposed successor's reputation or recognition as county treasurer together with the additional fact that she is exercising the duties of the county treasurer. That may protect outsiders, such as creditors or others dealing with the treasurer's office, but not a former treasurer turning over to such de facto treasurer the county moneys. As to the second ground apparently advanced by the court's opinion, I think it not only unsound but quite vicious in its consequences. I cannot believe that the commission is superior to the treasurer in the respect that it may give the treasurer orders regarding the disposal of public moneys behind which she may protect herself from responsibility.

For the above reasons, I dissent.