Board of County Commissioners v. Smith

22 Minn. 97, 1875 Minn. LEXIS 34

• Court: Supreme Court of Minnesota
• Decided: August 11, 1875
• Status: Published

Opinion

Gilfillan, C. J.

This is an action against the defendant, ex-treasurer of the county of Mower, for failing to account for and pay over, and for converting, moneys belonging in the treasury of the county. In the complaint aré five causes of action, or counts, the first four relating to as many different terms of office of defendant, and the fifth covering all of them. The aggregate amount claimed in the complaint is $41,000.00, alleged to have belonged to the various funds in the treasury — state, county, town and school funds — the amount belonging to each not being stated. The referees find by their report that, during his terms of office, the defendant appropriated, and converted to his own use, $17,144.97 from the county treasury; but at what particular times, or from what particular fund or funds, the}'- say they are unable to determine.

The defendant makes, and argues with great ability, the •objection that the board of county commissioners is not the proper party plaintiff in a suit of this kind, and this we deem the most important question in the case.

The statute (Gen. St. ch. 8, § 75;) makes each organized county a body politic and corporate, with capacity to sue and be sued, without any specification of the cases in which it may sue and be sued, and by § 80 the name by which it is to sue or be sued is “The Board of County Commissioners ” of the county. The case is different from that of Hunter v. Comm’rs of Mercer County, 10 Ohio St. 515, for in that state counties are not bodies corporate, and general authority to. sue and be sued is not conferred on them by statute ; but the statute of that state expressly specifies the cases in which the boards of county commissioners may sue or be sued. In this state the county may sue or be sued in any matter pertaining to the business or interests of the county, with no limitation other than would apply to any corporation. That the county commissioners may sue a defaulting treasurer, without reference to his official bond, is held in Comm’rs of McLeod County v. Gilbert, 19 Minn. 214.

The principal argument used to show that the county is not the proper plaintiff is, that the moneys abstracted from the county treasury belong, not to the county, but to the state, towns and school districts, and that, therefore, the county is not the real party in interest; and that, because the statute prescribes that the treasurer’s bond shall run, not to the county, but to the state, the latter and not the former is the trustee of the various funds in the treasury; and that if suit is to be brought by any but the real parties in interest — that is, the various' corporations or quasi corporations'to whom the various funds belong — then it must be brought by, or in the name of, the state, as the trustee of an express trust.

This suit is not upon the bond, but upon the defendant’s liability, independent of it. This liability does not arise upon the bond, nor are the rights of the county as against the defendant created by it. It is required, not for the purpose of defining the rights and liabilities of the parties, but as security to rights and obligations that would exist if no bond were given. But the provisions of statute in regard to such bonds, and the enforcement of them, are material and controlling, as showing the relations of the state, county,. towns, school districts, etc., to the, moneys intended to be secured by them; and we think that whoever would be a proper plaintiff in a suit upon such a bond would be a proper plaintiff in a suit not on the bond to enforce the liability which the bond is given to secure.

By Gen. St. ch. 8, § 126, the bonds of county treasurers are “payable to the state of Minnesota, and conditioned for the safe-keeping and paying over, according to law, of all moneys which come into his hands for state, county, township, school, road, bridge, poor, town, and all other purposes.”

Section 1, ch. 78, Gen. St., provides that “the official bond, or other security, of a public officer to the state, or any municipal body or corporation, whether with or without sureties, is to b.e construed as security to all persons, severally, for the official delinquencies against which it is intended to provide, as well as to the state, body or corporation designated therein; provided, that when no other provision is made by law, it shall run to the state of Minnesota.” Section 2. “When a public officer, by official 'misconduct or neglect, forfeits his official bond, or renders his sureties liable upon an official security, any person injured thereby, or avIio is by law entitled to the benefit of the security, may bring an action thereon in his oavii name,” etc.

This statute makes the decisions cited from State v. Robinson, 2 Ind. 40, and Snyder v. State, 21 Ind. 77, inapplicable, because in that state, so far as we can discover from those cases, there is no provision of statute like the one Ave have just quoted, and suits on official bonds, which are required to run to the state as obligee, must be brought in the name of the state, being governed wholly by the rules of the common law. According to the provisions of these statutes the state, in the greater number of official bonds, is only a nominal, and not the actual, obligee. This, however, shows no more than that the state need not, simply b>y reason of its being named as obligee in tbe bond, be the plaintiff in a suit on it. Any person entitled to its security may sue upon it after obtaining leave of the court.

It is not necessary to determine whether the state, or any •city, town or school district,may, by reason of its interest, and not by reason of the statute directing suit to be brought, sue, either on the bond or independently of it, for the portion of the abstracted moneys to which it is entitled. The question is, does the statute intend that the county may sue to enforce a restoration to its treasury of all moneys unlawfully taken or withheld from it? It does not follow that because one may sue, the other cannot. The right of the .general owner of property, and of one having a special property in it, to sue for a conversion of it, is an instance of a right at common law in two different persons to sue for the same thing.

Nór does the right of the county to sue depend on its being strictly the trustee of an express trust within the meaning of Gen. St. ch. 66, § 28. The county is expressly Authorized by statute to bring suit, and if the recovery to its treasury of moneys belonging in it comes within the legitimate business of the county, it is a person expressly Authorized to sue, mentioned in § 28. That the care over the county treasury, and all the moneys in it, is intended by statute to be part of the business of the county organization, is evident from the different provisions made in regard to it. All taxes, when collected, belong in the county treasury. The treasurer is required by Gen. St. ch. 11, § 86, to “place the same, when collected, to the credit of the county.” They are to remain in the treasury until drawn out according to law. The accounts of the treasurer are rendered to the county commissioners and county auditor if the commissioners are in session; if they are not in session, then to the auditor alone. All the treasurer’s books, accounts and vouchers, and all moneys in the treasury, are to be at all times subject to the inspection and examination of the commissioners, or any committee thereof-Gen. St. ch. 8, § 132. The settlements are to be made-with the county auditor or county commissioners. Gen-St. ch. 8, §§ 103, 133, 134; ch. 11, § 102. They may require the treasurer to give a new bond, and if he fail to-do so, his office is declared vacant. Gen. St. ch. 8, §§ 141, 142. ' When an action is commenced against him they may remove him. Gen. St. ch. 8, § 137. They may order suit to be commenced on his bond, (Gen. St. ch. 8, § 136,).and in such suit judgment may be rendered against him and his-sureties, not for the amount due the county fund alone, but for the whole amount due from the treasurer. When the money is collected in such suit, it is to be paid into the treasury of the county to which it is due. Gen. St. ch. 8, § 138.

It is provided that the state shall, except where otherwise expressly provided, be the obligee in all official bonds ; but that it was thereby intended to make the state the trustee of an express trust in all such cases, so as to be the only proper party plaintiff in a suit on such bond, is negatived by the provisions that the bond shall be construed as security to all persons severally for the official delinquencies against which it is intended to provide, as -well as to the state, etc., and that any person entitled to the security may bring an action thereon in his own name, etc. Such bonds are required to run to the state only as a matter of convenience, to establish a uniform rule and prevent doubts- or mistakes.

That the state auditor may instruct the county auditor to-cause an action to be commenced on the bond does not. show that the action must be in the name of the state, but rather tends to show the reverse ; for if it was intended by the statute that the action can only be brought by the state and in its name, we would naturally expect that the state auditor should cause, or should direct the attorney general or some other state officer to cause, it to be commenced, and that the control over, and prosecution of, it should be entrusted to some officer of the state. The purpose of this provision was, undoubtedly, to prevent the ¡irosecution of such bonds being in the uncontrolled discretion of the board, of county commissioners.

If it had been intended that the state, as trustee of an-express trust, must sue for all the funds, provision would have been made for payment of the moneys collected on the judgment into the state treasury, and for distribution of it, by the trustee, among the cestuis que trust; and had it been intended that each corporation, or quasi corporation, interested in the funds must sue for the portion to which it is entitled, provision would surely have been made for the commencement of the action by some officer of such corporation, or quasi corporation, and for the payment to it of the money when collected by means of the action. Instead of this the legislature has provided for an action to be commenced by county officers to recover moneys belonging in the county treasury, and for the restoration to that treasury of such moneys when collected. The only connection which any but county officers can, under the statute, have with such action is that the state auditor may instruct the county auditor to cause it to be commenced.

The great multiplicity of suits that would have been made necessaiy by it, and the difficulty, in many instances, of proving what portion of any sum abstracted from the treasury each plaintiff would be entitled to, make it highly improbable that the legislature intended it as a general rule that the state, county, cities, towns and school districts must necessarily sue, each for its own portion of the funds, for such delinquency by county treasurers. We have no doubt that it was intended that the county may sue in such cases, and recover the whole amount of the delinquency, unless, perhaps, where the state, or some of the corporations, or quasi corporations, has recovered for its. portion.

The only case to which we have been referred which realty covers the point is Supervisors of Albany Co. v. Durant, 9 Paige, 182. That was a suit, in the nature of a creditor’s bill, to enforce the payment of taxes. It was held that although the taxes, when collected, were to be paid in to the county treasurer, the supervisors were the proper parties to enforce the payment. Certainty, if the supervisors or county commissioners may bring suit to collect the taxes, and bring them into the treasury, they can sue and compel a return of the money upon an unlawful abstraction of it.

Within the proper time after the service of the complaint the defendant demanded a bill of particulars, which demand was not complied with; and at the commencement of the trial the defendant moved to dismiss the action on that ground, and also objected to the admission of any evidence on the same ground. The motion was denied, and the objection overruled.

The action is not one in which the defendant is entitled, of right, to a bill of particulars. It is an action for conversion of moneys, and not on an account alleged, and if the complaint does not set forth sufficient particulars of the moneys alleged to have been converted to enable defendant adequately to defend himself, his remedy is by motion to make it more definite and certain. Blackie v. Neilson, 6 Bosw. 681.

On the trial .the defendant moved to dismiss, and also objected to any evidence being given, because, as claimed by the defendant, the action is substantially one to impeach the accounts or settlements of the treasurer, and the complaint does not state the particulars in which it is claimed that the accounts or settlements are incorrect. The action, as we have stated, is for conversion of moneys, and the complaint does not allege any accounting or settlement, such as the law requires of the treasurer. If there was any, it was matter of fact to be pleaded; and, because it did not appear from the complaint, it was for the defendant, -if he relied upon it, to set it up in the answer, which he has done. Such a defence requires no reply, and, upon proof of the defence being offered at the trial, the plaintiff might controvert it, or avoid it, by proof impeaching the account or settlement for fraud or mistake. It could not avail as a defence at law if founded in fraud or mistake. An account stated or settled * is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Lockwood v. Thorne, 18 N. Y. 285, 292.

If the defendant, occupying, as he did, a fiduciary relation to the county, converted the moneys, it was a fraud within the rule in (Cock v. Van Etten, 12 Minn. 522, and the time limited for the commencement of the action began to run upon the discovery by plaintiff of the fraud, or notice to it of such facts and circumstances as, if investigated, would lead to such discovery.

To charge the defendant with moneys received, the plaintiffs offered a great number of what were called “grand duplicates,” but which appear to have been the assessment or tax books of towns, opposite many of the items of tax in which was written, in the margin, the word “ paid ’ ’ and the name of defendant. These marginal entries were objected to because there was no evidence that the name of defendant, written in connection, with the word “ paid ” opposite the various items, was his signature. The entries were received in evidence.

There is no law requiring such entries to be made, and, therefore, they do not stand as official records. There was no proof that the entries were in the books when in custody of defendant, and so there could be no presumption of their genuineness from the fact that they came from his possession. Such memoranda are not “ written instruments” within the meaning of Laws 1867, ch. 64. The written instruments meant by that statute are formal instruments or agreements, and do not include mere entries made only for the use or convenience of the party making them. It was error to admit these entries without proof of their authenticity. We have carefully examined the case to ascertain if there is any evidence curing this error, and find none, and for this reason a new trial must be had.

Judge Page was judge of the district (the tenth) in which the action was pending, and resided at Austin, the' county seat of the county iu which the action was pending. The motion for a new trial was noticed for hearing at Mankato, before Judge Waite, of the sixth (an adjoining) district. The respondent makes the objection that the latter has no jurisdiction to hear the motion.

Section 4, ch. 67, Laws 1867, provides that ££ motions must be made in the district in which the action is pending, or in an adjoining district, provided that no motion shall be made in an adjoining district, which shall require the hearing of such a motion, at a greater distance from the county seat where the action is pending in which the motion is made than the residence of the judge of the district wherein such action is pending from such county seat.” The act of 1867 does not in terms repeal Gen. St. ch. 64, § 5. That section provides that “ whenever a district judge is a party, or otherwise interested, in any cause, another district judge, in an adjoining district, shall, within his district, transact, any ex parte business, hear and determine motions,” etc.

Except under this provision the parties, in a cause where, the judge of the district in ivhich it is pending is disqualified to act, can make no applications *in vacation. We cannot hold, by implication, that the act of 1867 was intended to take away their right to make such applications, and think the right given in ch. 64, § 5, is preserved. Judge Page was disqualified by reason of having been attorney in the' cause.

Many other questions of little importance are made by the defendant; but as a new trial must be had for the reason stated, upon which trial those questions are not very likely to arise, we pass them over.

Order reversed.