Hewes v. People

Opinion

by the Court.

The statute, Sec. 10, Ch. 103, declares that where the surety has given notice, etc., as therein provided, if the officer shall fail to give a new bond within ten days after receiving the notice, or such further time, not exceeding twenty days, as may be allowed him, the “ office shall become vacant and the vacancy shall be filled as provided by law.” It is urged on behalf of appellants that because the office thus becomes vacant, there was no legal power in the constable to further exercise the official functions and therefore his sureties are not affected by anything he did while acting without legal'authority. It will be noticed that the section referred to does not say that the parties are released upon the contingency so arising, though by the following section 12, it is provided in express terms that if a new bond is given they shall not be responsible for the acts of the officer in consequence of business coming to his hands after the approval of the new bond. What, then, is the legal effect of the office becoming vacant, the vacancy to be filled as in other cases ? The question is by no means free from difficulty. The majority of this court are, however, inclined to hold that as to third persons the principal in the bond is to be regarded as officer defacto, that his acts as such would be valid, and those persons so interested in the official acts performed by him are to be protected. In the case of Sunpliy v. Whipple, 25 Mich. 10, the sheriff had failed to renew his bond. The constitution provided that such officer might be required by law to renew his security from time to time, and in default of giving such surety, the office should he deemed vacant. The statute subsequently enacted provided for the renewal of the bond at certain times, but did not expressly declare the office should be vacant for failure therein. The court held that whether it was vacant or not, if the incumbent continued in office and remained sheriff defacto, that he was in by virtue of his election— that it was the election which justified his being treated as anything but a usurper, and that, together xvith his action under it, protected those interested in his official acts. . The sureties were held liable.

In Placer Co. v. Dickerson, 45 Cal. 12, the county treasurer retained possession of the office after his term expired and collected money while so holding over, and his sureties were held.

The court remarked he was an officer defacto and that the responsibility of the sureties was the same as though the officer had, after the expiration of his term, continued in office ¡lending proceedings by quo warranto to oust him, and in that case the liability would be unquestionable.

In The State v. Muir, 20 Mo. 303, the officer had removed from the State and had thereby vacated his office, but it was held his sureties were liable for the acts of a deputy after such removal.

It would seem, therefore, that because a certain contingency brings the term of office to a close and cuts off or terminates the legal right of the incumbent to perform the acts pertaining to the office, it does not follow that as to the public his acts are discredited, or that his sureties are released when his legal right to fill the office has ended. He may still be treated as an officer defacto. Being such, his acts are valid and binding not only as against, but also in favor of, third persons.

Again, the statute provides that the term of the constable’s office shall continue four years, or until a successor is elected and qualified. Ch. 79, Sec. 1, and Sec. 10 of Ch. 103 already referred to, declare that the vacancy created by the failure to give new bond “ shall be filled as proxdded by law,” that is, by appointment or by a special election, according to the amount of unexpired time of the original term. It has "been held under similar provisions, that where the oiiicer holds over after the end of his term, no successor having been elected and qualified, the liability of the bond will extend beyond the term for a reasonably sufficient time, within which the successor may qualify. Chelmsford Co. v. Demarest, 7 Gray, 1; Mayor of Rahway v. Crowell, 11 Vroom, 207; City, etc., of Montgomery v. Hughes, 65 Ala. 201; County of Scott v. Ring, 29 Minn. 398.

It has ever been held that in such case liability continues during a second term of the same incumbent. Butler v. The State, etc., 20 Ind. 169.

Turning again to the statute, Sec. 12, Ch. 103, it will be seen that when the officer fails to give the new bond it shall be his duty to turn over to his sureties all books, moneys, vouchers, papers and every description of property pertaining to. his office, and that the sureties may enforce their rights in this respect by action of replevin. It would, of course, be within their power to proceed against him by quo warranto or by mandamus to require the proper authorities to call an election.

As the sureties have, by signing his bond, enabled him to possess the office and exercise its functions, and as they have these various means by which to divest him of official power, it would seem that as between them and an innocent third party, such as a plaintiff in execution, they ought, upon familiar principles, to bear the burden of his official malfeasance. "We find nothing in the statute exonerating them, aside from the argument drawn from the provision that when he fails to give a new bond the office shall become vacant and the vacancy shall be filled as provided by law, which we have just discussed. Doubtless, adjudged cases may be found supporting the position of appellants, but the value of those cases may depend more or less upon local statutes. After the best consideration we have been able to give the question, we are disposed to regard the weight of reason and authority as being with the conclusion reached by the Circuit Court.

The judgment will be affirmed.