City of Ballard v. Thompson

The opinion of the court- was delivered by

Gordon, C. J.

The city of Ballard, a city of the’third class, brought this action against the defendant, A. G. Thompson as principal, and the other defendants as sureties, on the official bond given by Thompson as treasurer of the plaintiff city.

It appears from the record that Thompson was elected treasurer in December, 1894, his official term commencing the following January. Prior to entering upon his official duties, he qualified by taking the oath of office and executing a bond in the sum of $50,000, that being the bond in suit. In December, 1895, Thompson was re-elected treasurer for the term beginning the following January, but, without qualifying or giving any new bond, he continued to perform the duties devolving upon the treasurer until about February, 1897. Between June, 1896, and January, 1897, owing to the failure of two banks in the city of Seattle, he sustained a loss amounting in the aggregate to the sum of $2,536.97. It was to recover this sum that the present action was brought.

The. case presents but a single question, which may be stated as follows: Are the sureties upon the official bond of the treasurer of a city of the third class liable for the acts of such treasurer after the expiration of the term for which he was elected ?

Section 927, .Bah Code, provides for the election of such officers on the first Tuesday after the first Monday in December of each year, and fixes the tenure of office at one year from and after the first Tuesday jn January next succeeding the day of each election, and until their successors are elected and qualified.

Section 928, Bal. Code, requires the officer, before entering upon the duties of his office, to execute a bond to the city in such sum as the council may by ordinance determine, conditioned for the faithful performance of his duties; and further requires the officer, before entering upon the duties of his office, to take and file the constitutional oath of office.

Section 1518, Bal. Code, is as follows:

“Every official bond executed by any officer pursuant to law shall be deemed and taken to be in force, and shall be obligatory upon the principal and sureties therein for any and all breach of the condition or conditions thereof committed during the time such officer shall continue to discharge any of the duties of or hold such office, and every such bond shall be deemed to be in force and obligatory upon the principal and sureties therein for the faithful discharge of all duties which may be required of such officer by any law enacted subsequent to the execution of such bond, and such condition shall be expressed therein. (Laws 1890, p. 34, § 2; 1 H. C., § 2901).”

While the present case differs somewhat in its facts from that of King County v. Ferry, 5 Wash. 536 (32 Pac. 538, 34 Am. St. Rep. 880), still the same principle underlies both cases, and there is no difference or distinction to be drawn. In the opinion in that case the two lines of authorities bearing upon this question are taken up and fully discussed, and the cases in support of the respective lines cited and reviewed. In the course of the opinion we said:

“ The authorities cannot be reconciled, some courts holding that the bond is made in contemplation of the law and must be construed with reference to the law governing the office, and where the law provides that the term of office shall continue until the successor is elected and qualified, which is the law governing this case, that the bond is given not only for the statutory term, but for the further time which may elapse between the end of the expressed statutory term and the time when the successor is elected and qualified; that the law becomes incorporated into the bond; that the sureties are bound to know that his right to the office may extend beyond the year, and that this possible extension is taken into consideration and provided for in the hond. . . . But after a great deal of deliberation, and, we must admit, some hesitation, we are constrained to adopt the opposite view, which is amply sustained by authority and we think by better reasoning. ... So far as the term ‘until his successor is elected and qualified’ is concerned, while it might have great significance when applied to the officers of private corporations, it can have none here, for the law provides when the officer elect shall qualify, and if he does not qualify within the time prescribed the commissioners can declare his office forfeited, and appoint another officer. . . . In this instance, when the term of office for which the bond was^ given had expired, another bond should have been required, and if the authorities have neglected their duty, or the legislature has inadvertently failed to make provision for a proper bond, it is inequitable and unjust to make the sureties for the original term responsible for' such neglect and inadvertence.”

We have no disposition to depart in the slightest degree from the reasoning or conclusion announced in that case, and, as we are entirely clear that the present case falls within it and is controlled by it, it would he a useless and unprofitable undertaking to again enter upon the discussion of the question. It follows that it must be held that, in contemplation of law, the language of the bond can only he construed as applying to the current, and not to a future, term.

The judgment appealed from must he reversed, and the case remanded with directions to the superior court to enter judgment dismissing the action at plaintiff’s cost.

Dunbab, Beavis and Bullerton, JJ., concur.