Territory of Wyoming v. Ritter , 1 Wyo. 318 ( 1875 )

By the Court,

Blair, J.:

This is an action brought on a penal bond, executed by George W. Bitter, and Henry Bath, A. T. Williams, Charles Buster and M. G. Toun, his sureties, to the territory of Wyoming, as judge of probate, and who, as the petition of plaintiff alleges, was also ex officio county treasurer of Albany county. .The petition proceeds to set forth the duties of the judge of probate as ex officio county treasurer, and avers that it is made his duty by law to receive all moneys belonging to the county and territory, from whatever source they may be derived, and shall pay the same out only on the order or warrant of the board of county commissioners, as prescribed by law.

That he is required to keep a true and just account of all receipts and expenditures, of all moneys that shall come into his hands; to report at each regular meeting of the county commissioners the amount of moneys received and expended as treasurer during the intervening time, and to safely keep all moneys that may come into his hands as judge of probate and ex officio county treasurer, and to perform all the duties required of him by law. The petition further alleges that after Eitter executed the bond aforesaid, he took upon himself the office of judge of probate, and as such ex officio county treasurer, and assumed all the duties thereof. The plaintiff then assigns as a condition of the breach of said bond, that said George W. Eitter, judge of probate as aforesaid, and as such ex officio county treasurer of Albany county, did not faithfully perform all the duties required of him by law, but made default, and wholly neglected and refused so to do.

That in the year 1875, and up to the time of bringing the plaintiff’s action, the said Eitter, as judge of probate and ex officio county treasurer, received large sums of money, which he grossly neglected and refused to safely keep, disburse and account for, and that he wholly neglected and refused to keep just and true accounts of his receipts and expenditures of all moneys coming into his hands, by reason whereof the said Eitter had become a defaulter in the sum of fifty-five thousand nine hundred and thirty-six dollars and seventy-four cents, and had absconded with the same.

The petition concludes in the usual form, and prays judgment against the defendants for ten thousand dollars, the penalty of the bond.

The sureties of Eitter, by counsel, appear and demur to the petition of the plaintiff, and assign two causes of demurrer :

1. That the plaintiff has no legal capacity to sue in this action, in this, that by law the action should have been brought in the name of the people.

2. That the petition of the plaintiff does not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. The demurrer to the plaintiff’s petition was sustained in the court below, and the case came to this court for review.

The first cause of demurrer having been waived by counsel in their argument before this court, 'it will not be considered. We will, therefore, consider the second cause of demurrer. This cause of demurrer raises the question (which is the only one in the case) as to the liability of the sureties of Bitter for the failure of Bitter to perform the duties required of him by law as county treasurer.

The first inquiry that would seem to present itself is, whether the office of judge of probate and county treasurer are one and the same office, or two separate and distinct offices, and in either case are the sureties of Bitter liable in this action. By a careful examination of the act creating the office of judge of probate, found in the code of 1869, article 2, chapter 4, it will be seen that independent of the first section, there are but two, viz., four and five, where the judge of probate is styled county treasurer. From the end of the fifth section to the end of article 2, the person who is required to perform the duties of treasurer, is styled either county treasurer or treasurer. On page 358, section 49, of the code of 1869, it is made the duty of the county treasurer to sign and deliver to the purchaser of any real estate, sold for the payment of taxes, a certificate of purchase, etc., and section 54 gives a form of deed conveying to the purchaser of said property, so sold as aforesaid, which deed is signed simply, “E. F., treasurer.” In every instance, therefore, where the person is referred to, who is to discharge the duties of county treasurer, save in the two instances we have mentioned, he is styled either county treasurer or.treasurer.

The conclusion would therefore seem almost inevitable if we look to the act alone creating the office of judge of probate, to ascertain the intent of the legislature, that it was the intent, and the legislature did create two separate and distinct offices; the duties of each to be performed by one and the same person. The correctness of this view as to the intent of the legislature is not lessened, but on the contrary greatly strengthened by the fact that the duties of the office of judge of probate and that of county treasurer have no connection one with the other; each are clothed with different and distinct powers; each to perform different and distinct duties; the functions of the former being wholly judicial, the latter purely ministerial.

The question, however, has been well considered by one of the most respectable courts of the Union, and has, as we think, ceased longer to be debatable. The supreme court of California has held, in numerous cases, that to make a person an ex officio officer by virtue of his holding another office, does not merge the two into one: People v. Edwards, 9 Cal. 286; People v. Love, 25 Id. 520; Lathrop v. Brittain, 30 Id. 680; People v. Ross, 38 Id. 76.

Assuming, therefore, that when the legislature declared that the judge of probate should be ex officio county treasurer of his county, two distinct offices were created, we are brought to consider the next question which arises in this case, viz.: Are the sureties of Eitter liable in this action for the failure of Eitter to discharge all the duties imposed upon him by law as county treasurer. The laws of this territory declare that the judge of probate, who shall be ex officio justice of the peace, and county treasurer, of his county, shall give bond to the territory in the penal sum of ten thousand dollars with two or more sureties; conditioned for the faithful performance of the duties required of him by law as such judge of probate, ecc officio justice of the peace and county treasurer, and for the faithful application and payment of all moneys and effects that may come into his hands in execution of the duties required of him by law as such judge of probate and ecc officio justice of the peace and treasurer. The condition of the bond executed by Eitter, and upon which this action is founded, is as follows, viz.: Now, therefore, if the said George W. Eitter shall well and faithfully perform all the duties of said office of judge of probate according to the laws of said territory, then the above obligation to be null and void, otherwise to be and remain in full force and effect. Here it will be observed that the condition of the bond upon which this action is being prosecuted, would seem to be limited to and covers only the duties of judge of probate.

If this be so, the vital question arises, are the sureties of Eitter liable in this action for the failure of Eitter as ex officio county treasurer to faithfully discharge all the duties required of him by law as county treasurer; or in other words, are the legal liabilities of the sureties of Eitter the same under the condition of the bond sued on as if it contained the exact words of the statute? To ascertain the extent and liabilities of sureties who execute bonds of this character, we have only to apply the well settled rule of law applicable in such cases, and all difficulty at once disappears. The rule is simply this, that the bond must speak for itself, and the law is that it must so speak; that the liabilities of sureties are limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words of the bond do not make them liable, nothing-can. There is no construction, no equity against sureties. If the bond cannot have effect according to its ,exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail: State of Ohio v. Medary et al., 17 Ohio, 565; Myers et al. v. Parker, 6 Ohio, 501; Evans v. Bradley, 17 Wend. 422.

Applying the above rule of construction in endeavoring to ascertain the liabilities of the sureties of Eitter under the condition of the bond in question, it would seem that they could be held liable only for the acts of - Eitter as judge of probate per se, and not for his neglect or failure to discharge the duties of county treasurer. But it has been argued by counsel for plaintiff in error with great earnestness, that when the condition of a bond is cumulative, the omission of one condition cannot invalidate the bond so far as the other operates to bind the party. Unquestionably this is true. But the question is one of much more difficulty whether where the law is expressed that the condition of the bond shall be both for the faithful performance of all.the duties imposed upon him by law as judge of probate, and the faithful application and payment of all moneys and effects that may come into his hands in execution of the duties required of him by law as such judge of probate,, and ex officio county treasurer, and the former only is inserted, can the latter be held to be comprised within the general words of the former? We do not hesitate to say they cannot: Farrar & Brown v. United States, 9 Curtis, 386.

We are therefore of opinion: First. That where the judge of probate is made by express statute ex officio county treasurer of the county, that two distinct offices are thereby created by law; Second. That where the condition of the bond executed by the judge of probate is only for the faithful discharge of the duties of judge of probate per se, the sureties on said bond are not liable for the failure of the judge of probate as ex officio county treasurer to perform the duties of county treasurer required by law.

For these reasons, we think there is no error in the judgment of the court below.

Judgment affirmed.