In the decisions of these causes in Department, the case ofPlacer County v. Dickerson, 45 Cal. 14, was not considered. It contains a declaration contrary to the views expressed in Department, and for that reason a rehearing of the question was was ordered. After such rehearing, and full consideration of the cases relied on by the petitioner, the court adheres to the reasonings and decisions contained in the Department opinions. InPlacer County v. Dickerson, the decision upon this question is found in a single sentence. No discussion accompanies the determination, no authorities are cited, no reasoning indulged in. The court said, merely: "The action is founded upon the official bond of Dickerson, as treasurer of Placer County, signed by defendant, and running to the people of the state of California as the obligee therein, and the county of Placer had a right to maintain an action for a breach of its condition, by which an injury has been suffered by the county." But, as pointed out in the Department opinions, while the bond of a public official, is in a sense, a contract in writing, it is at the same time merely security for the faithful performance by the officer of his duties. A written guaranty to answer for the debt of another is likewise a contract in writing, but no one would
have the temerity to say, if the statute of limitations had barred the primary obligation, or in any other legal way it had become extinguished, that because the guaranty was a contract in writing, the four years' statute of limitation would apply. The declaration in Placer County v. Dickerson, that the action was not upon a liability created by statute, is in direct conflict with the language of the later cases of People v. Van Ness,76 Cal. 122, and Paige v. Carroll, 61 Cal. 211. Of the other cases cited by petitioner, — which cases, he contends, follow and support Placer County v. Dickerson, — People v. Gardner, 55 Cal. 304, was an action upon the official bond of the surveyor-general, and it is held that neither he nor his sureties were liable for his misfeasance in the office of registrar. The statute of limitations upon an official bond is not discussed nor referred to. People v. Van Ness, 76 Cal. 122, was an action in debt against the commissioner of immigration for fees collected by him. It is said in the opinion: "A cause of action, therefore, existed in favor of the people against appellant at the time of the expiration of his term of office. This action, having been commenced more than three years thereafter, is barred under subdivision 1 of section 338 of the Code of Civil Procedure." The opinion therefore holds that the action was upon a liability created by a statute, and was barred in three years, and to this extent supports the views expressed in the commissioners' opinion. People v. Huson, 78 Cal. 154, makes no reference to the statute of limitations, nor to any statutory liability. San LuisObispo County v. Farnum, 108 Cal. 568, is reversed upon the authority of San Luis Obispo County v. Farnum, 108 Cal. 562, in which latter case it was held that it was no part of the official duties of a county auditor to receive from the license-collector money collected by him for license taxes due the county, and that the surieties on his official bond are not responsible for moneys so received. It has not the slightest applicability to the question under consideration.
We find nothing, therefore, in the cases cited to warrant a change in our views.
The judgments and orders are therefore reserved and the causes remanded, with directions to the court below to sustain the demurrers to the amended complaints as to all causes of action arising more than three years before the commencement of the action.
The following are the Department opinions, which are approved and adopted: —
[S.F. No. 1529. Department One. — September 17, 1900.]Free access — add to your briefcase to read the full text and ask questions with AI