County of Poweshiek v. Ogden

7 Iowa 177

Opinions

Stockton, J.

*

The only question presented for our determination in this case, is whether the plaintiff’s action is barred by the second clause of section 1659 of the Code, which provides that “actions against a sheriff, or other public officer, growing out of a liability incurred by the doing of an act in an official capacity, or by the omission of an official duty, including the non-payment of moneys collected on execution, are barred within three years.”

The first breach assigned by .the plaintiff's petition is, “ that the said R. 13. Ogden, at divers times, before and after the execution of the bond sued on, and during his term of office as county judge, sold and conveyed a number of lots in the town of Montezuma, the property of the plaintiff, and received the purchase money therefor, and has failed to account for, and pay over, the same to said county, as required by law.”

We are of opinion that the failure of the defendant, Ogden, to pay over the money received by him for the sale of these lots, was not the omission of an official duty by him, in the sense in which the words are used in the law.'

The Code contained no provisions requiring the county judge to give bond. He is constituted the accounting officer and general agent of the county, and as such, is to superintend its fiscal concerns, and secure their management in the best manner. Code, section 106. The county treasurer is, however, the constituted keeper of the funds of the county. No authority is given under the Code, to the county judge to receive any money belonging to the county, except the fees appointed to be received by him, as prescribed by law for his office.

Of the fees received by the county judge, the county recorder, and the clerk of the district court, they are required to make a settlement at the end of each quarter. After the payment of their salaries, and that of the prosecuting attorney, the residue is required to be paid into the county treasury ; and each is required to make a general settlement of his account of fees received, at the end of his term of office. Code, sections 212, 214.

There is no authority given by the Code to the county judge, to receive moneys of the county, which should be ' paid into the county treasury ; and it may be safely concluded, that he was not required to give bond, and that the accounting for, and paying over moneys of the county, received by him, have not by the Code been enumerated among his official duties, for the reason that no authority by it is given him to receive such moneys ; and because it was not contemplated that, beyond the fees of his office, any such moneys should come into his hands.

By the act of January 29, 1853, (Session Acts, ch. 40, JO), the county judge was required to give bond, “conditioned for the faithful discharge of his duties as such, and for the payment of all public moneys which may come into his hands.” The bond sued on was executed by the defendants under the provisions of this law. If it had required that the condition of the bond of. the county judge, should have been for the faithful discharge of the duties of his office, only, and the bond had been so given, we are of opinion, that under such a condition, the plaintiff could not recover of the defendants, the obligors, for moneys of the county received by the county judge, for the sale of the town lots. As it is, however, expressly conditioned for the payment by Ogden, of all moneys coming into his hands by virtue of his office, in addition to the stipulation for the faithful discharge of the duties of his office, we see no good reason for holding, that the plaintiff’s right of action for the failure to pay over this money, is limited to three years from the time the action accrued. Such limitation, we think, must bo applied to those causes of action growing out of the omission by the county judge of some official duty, other than such as is imposed upon him by the obligation of his bond — in this instance, to pay over all moneys coming into his hands by virtue of his office. The demurrer to this portion of the answer, should, therefore, have been sustained.

The second breach assigned by the plaintiff is, that the " said Ogden has not faithfully discharged the duties of his office of county judge, in this, that he has illegally, and without authority, granted and issued county orders and warrants to one Wells, and other persons not entitled to receive the same, whereby money was drawn and received from the county treasury, for purposes and objects not authorized by law. As the matters assigned under this second breach, are such as obviously grow out of a liability incurred by the doing of an act in an official capacity, we think the limitation of three years applies; and the demurrer to so much of the answer as set up such limitation in bar of the action, was properly overruled.

Judgment reversed.

Wrigh , C. J., dissenting.