Furlong v. State

58 Miss. 717

• Court: Mississippi Supreme Court
• Decided: April 15, 1881
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The demurrer to the declaration presents the question whether the bond of the sheriff is a security to the State against a false claim made by the sheriff for keeping and maintaining prisoners in the jail of the county, by means of which he obtained an allowance for and collected more than he was legally entitled to. The demurrer rests for its support on the proposition that the bond is not an indemnity against such a result, and that the sheriff alone is liable for money thus improperly obtained. The argument is that the' bond is intended as an indemnity against official misconduct, and to secure the payment of money received officially by the sheriff and required by law to be paid over by him ; and that in preferring his claim for pay for keeping prisoners he is not actiug officially, and in receiving money on this account he is not to pay it to another, but receives it for himself.

• It is certainly true that there is a limit to the liability of the sureties on an official bond. They are not liable beyond the condition of the bond and the contemplation of the law which requires it to be given. It is intended as an indemnity against the abuse of official authority, or the use of official station and power for improper purposes. It is said to be true, as a general rule, that the sureties on an official bond are liable only for such money as their principal may receive by virtue of his office ; and to this we assent. The difficulty is, to determine the proper application of the rule. The case of Brown v. Mosely, 11 Smed. & M. 354, is relied on as supporting the demurrer. The sheriff had an execution in his hands, and the defendant delivered him “Alabama money," estimated at eighty-five cents on the dollar, sufficient to pay it. The plaintiff in the execution refused to accept it, and enforced payment in. lawful money. The defendant in the execution, having to pay lawful money to satisfy it, and unable to obtain from the sheriff the “Alabama money," sought a recovery for it on the official bond of the sheriff. The liability of the obligors was denied by the court, on the ground that the plaintiff in that action was neither within the condition of the bond, nor in the contemplation of the law which required the bond for the security of those whose lights are committed by law to the hands of the sheriff. This is the true ground on which to place the decision of the question and the liability of sureties on an official bond. If the case is within the condition of the bond, or within the contemplation of the law requiring it, the obligors are liable for its breach. The law, in requiring an official bond, contemplates it as a security for those whose rights it commits in certain states of case to the officer. It is for that it is required. The defendant in an execution was not contemplated by the law as making payment in a currency not authorized by law, and in doing so he could not throw the risk of loss to himself on the sureties on the sheriff’s bond. As to that matter, his rights were not committed by law to the sheriff, and he had no right to rely on the official bond of that officer for indemnity against loss by reason of his unauthorized dealings with him. The bond was conditioned aud designed as a security for those whose rights and interests were committed to the sheriff, and they alone were to, have remedy on it.

Adopting that principle as á criterion, and applying it to the facts of this case, a correct result will be reached with respect to the demurrer.

It was the duty of Furlong, as sheriff, to maintain the prisoners in the county jail, for which he was to be paid at a prescribed rate, to be obtained in a manner provided by statute. The averment is that he made a false claim for more than he was entitled to on this account, and thereby obtained money of the State to which he had no right. His bond is conditioned for the faithful performance of the duties of his office according to law, and to pay over all moneys coming into his hands by virtue of said office to the party entitled thereto. This bond was provided by law as a security for all whose rights should, under the law, be committed to the sheriff. It was intended to secure against the misuse of official position, and as a means of indemnity against all wrongful official acts.

If making claim for keeping and maintaining prisoners in the jail of the county is an official act of the sheriff, his bond must' be held to be a security against a false claim, and the obligors liable for any sum improperly obtained by such claim. If he prefers such a claim by virtue of his office, his sureties are liable for the damages resulting from its illegal assertion.

'The distinction between an official act, for which the bond is. a security, and an unofficial act intimately connected with official duty, for which no liability attaches to the sureties on the bond of a sheriff, is illustrated by Brown v. Phipps, 6 Smed. & M. 51, where it was held that although the sheriff was required to advertise the sale of land for taxes in a newspaper, and could not lawfully sell without such advertisement, and was authorized to sell such lands for enough to pay not only the taxes due, but the expenses of the sale, including the fees for advertising, his bond was not a security to which the publisher who had advertised the sale could resort to obtain his compensation. To the same effect is The Commonwealth v. Swope, 45 Pa. St. 535.

In Brown v. Phipps it is said, speaking of the condition of of the sheriff’s bond: “This condition covers nothing more than such duties as the statute prescribes.” The distinction seems to be clearly drawn between duties prescribed and rights which accrue to the sheriff. His duty was to advertise lands to be sold, and for a failure of that the sureties would have been liable. He had the right to sell to raise money to pay for advertising, but for a failure to exercise this right and pay the publisher what was due him for advertising, the bond was not a means of indemnity to the publisher. The manifest reason for the distinction is, that the duty prescribed was official. The right given was for his indemnification, and was personal or individual, and not official. He might exercise it or not. No duty was imposed on him in reference to it. Being for his benefit, he might exercise it or not, at his option, and the right of the publisher to be paid his fees was not within the contemplation of the law in providing the bond.

It was made the duty of the sheriff to maintain the prisoners in the county jail, and to make out his account, under oath, for the sum allowed by law for this service, which was to be examined and allowed by the district attorney, and then allowed by the Circuit Court of the county ; and on the production of the account and a certified copy of the order of the court allowing it, the auditor of public accounts was to issue his warrant on the treasurer for the sum shown to be due. The sheriff was not allowed to pay himself out of any money in his hands, nor was he allowed to be paid on his own order, or by any act of his as an officer. He was not compelled to present any claim. He might not make out an account. He would have subjected himself to no liability if he had never asserted any demand for maintaining prisoners. He could obtain pay for it, but no obligation rested on him to do it. The manner of doing it was prescribed. His individual conscience was appealed to. His corporal oath was required. He was to become a suitor for his dues. The district attorney was to examine his claim, and allow, in writing, such amount as he found to be due. It was afterwards to be allowed by the Circuit Court of the county, and upon presentation of the account, and the order of the court allowing it, certified under the seal of the court to the auditor, he was to issue a warrant for its payment, unless he had serious doubts of the lawfulness of the allowance, in which case he was not to issue his warrant for it, but to report it to the next Legislature. Code 1871, sect. 143.

It is manifest that the presentation of an account by the sheriff for maintaining prisoners is an individual, and not an official, act, from the fact that he may do so, and in many instances must do so, if at. all, after his term of office has expired. The account is to be made out and sworn to by him to whom it is due, and to whom the facts to be sworn to are known. He who rendered the service is entitled to the pay. The allowance is to be to him, and not to his successor in office. Every two years the term of office of a sheriff expires. In many counties it occurs that, on the day when the term of office of the sheriff expires, he has been maintaining prisoners in the county jail for months, with no opportunity, for want of a term of the Circuit Court of his county, to present his account for maintaining prisoners for allowance by the court. He has the right to present it, and obtain its allowance, after his term has expired, because it is due to him, and cannot be obtained in any other way or by any other person.

It is plain that the clause in the condition of the bond, “ to pay over all moneys coming into his hands by virtue of said office to the party ” entitled, has in contemplation money coming into the hands of the sheriff as a collector or a custodian for another than himself, and has no reference to money which he might collect for himself. The remaining stipulations of the condition have reference only to the performance of official duty by the sheriff. The matter complained of in this action is neither within the terms of the condition of the bond, nor within the contemplation of the law which provided it. The money wrongfully received by Furlong was not money coming into his hands as collector or custodian of it for another, and the presentation of his account was not an official act. It was not in the contemplation of the law which required the bond that it should be a security against the wrong of a false claim of the nature of this. The oath of the claimant, and the penalty of a false oath, and the scrutiny of the district attorney, and the Circuit Court, and the,auditor of public accounts, and the penalty prescribed for collecting, under color of his office, any money not authorized by law (Code 1857, p. 590, art. 99), were the security provided by law against an illegal demand of this character, and the bond was exacted of the sheriff as a security for those whose rights were committed bylaw to his keeping. As we have shown, the rights of the Slate in this matter were not committed by law to the sheriff, but to the designated officers of the State, who were to stand between him and the treasury. The position of the sheriff, as tto this claim, was very different from that of the county treasurer in Howe v. The State, 53 Miss. 57, who, being under official obligation to pay over all money of which he was the legal custodian, except such as he was legally entitled to for his commissions, was held bound for a balance illegally withheld by him. In that case no question was made as to the liability on the bond.

There is a great want of similarity between the relation of the sheriff to the treasury, as to his account for keeping prisoners, and that of the officials in the cases cited by counsel for the appellee. In those instances the officer was enabled by his-official act to wrongfully obtain money .from the treasury, and it seems surprising that it should have been insisted that the bond of the officer was not a security against loss from such acts. It was to indemnify against official misconduct that the bond was required, and in each of those cases the act was indisputably an official act.

Another question made by this record, and upon which we were requested by counsel on both sides to express our views, is as to the Statute of Limitations as a bar to the action. It is conceded that more than seven years had elapsed after the 19th of April, 1873, and before the commencement of the action. The Code of 1871 contained no provision for barring actions on sealed instruments. The right of -action in this case is' treated as having accrued after the Code of 1871 became-operative, and before the act of April 19, 1873, entitled “ An act entitled an act to amend the Statute of Limitations relating to sealed instruments.” Acts 1873, p. 42. In-this state of case it is insisted, by counsel for the State, that the act of April 19, 1873, did not bar the action, because it is Said it did not embrace official bonds, and did not affect the State-, which is neither included in its terms nor its implication, and because it was prospective entirely in its operation, and did not embrace causes of action accrued before its passage.

We cannot adopt the view that the act referred to does not include official bonds. Its language is, that “ all actions * * * upon any bond, obligation, or contract, under seal, * * * shall be commenced within seven years,” etc. The terms “any bond, obligation, or contract, under seal,” are comprehensive enough to embi'ace, as they were intended to do, all bonds of every sort. The proposition of counsel, on the correctness of which their argument rests, is,'that the act of April 19, 1873, did not run against the ¡State, nor embrace preexisting causes of action, and is to be regarded as an independent act, standing alone, apart from the Code, and to be construed by itself. To this we cannot assent.

The Code of 1871, as proposed to the Legislature, abolished the distinction between instruments by reason of seals. The chapter on the Limitation of Actions, as submitted to the Legislature, conformed to the proposed obliteration of distinction between sealed and unsealed instruments. The Legislature, in adopting the Code, preserved the distinction between these instruments, but failed to provide for barring them by limitation. The act for the limitation of actions, as passed in the Code of 1871, is the act on the same subject in the Code of 1857, with the change of art. 29 of the act (as shown by sect. 2173 of the Code of 1871), and the omission of art. 10 (which had been pronounced unconstitutional by the Supreme Court of the United States in Russell v. Christmas, 5 Wall. 290. and was left out of the Code as submitted to the Legislature), and of art. 6, which provided a limitation for all contracts under seal. When the act of April 19, 1873, was passed, it became a part of the act for the limitation of actions, as contained in the Code of 1871, and was to be construed with reference to all its provisions. No other course is admissible. If this is not so the most anomalous and extraordinary consequences would ensue. As to actions on sealed instruments, there would be no saving to persons under disabilities, nor, in case of absence from the State, would the provision of the Act of Limitations apply, nor would a fraudulent concealment of the cause of action make any difference, nor would the extension of time in case of the death of the party entitled or liable to the action apply, and so of several other provisions of the Act of Limitations.

The rule that all statutes on the same general subject are to be construed together as parts of a whole, each adjusted to the other, and that a law amendatory of an existing law is, from the date of its becoming operative, to be construed as if it had been enacted as a part of the law amended by it, is well settled. Considered as having become a part of the general law for the limitation of actions from its enactment, the act of. April 19, 1873, ran against the State by virtue of sect. 2169 of the Code of 1871.

The case of Clements v. Anderson, 46 Miss. 581, has been pressed in argument as decisive of the proposition that the act of April 19, 1873, is not to be treated as part of the Act of Limitations, as contained in the Code of 1871. In that case the court, without remarking upon it, treated the State as not affected by the act of February 6, 1860, to remedy the evils occasioned by the burning of the court-house of Attala County. From that the inference is drawn by counsel that an act subsequent to the Code amendatory of the law for the limitation of actions is not to be considered as incorporated in such law, and to be construed as part of it and subject to its several provisions. The case cited does not justify the inference. The act of February 6, 1860, referred to above, was a local act for Attala County, to meet an evil found to exist there. It was not a general law, and had no reference to or connection with the law for the limitation of actions as applicable to the State. It was a special act for a prescribed locality and particular purpose, having no relation to the Commonwealth. The cases of Boyd v. Barrenger, 23 Miss. 269 ; Garrett v. Beaumont, 24 Miss. 377, and Murray v. Gibson, 15 How. (U. S.) 421, are relied on as establishing a contrary view. The argument is, that the act of March 5, 1846, construed in those cases as not applying to antecedent causes of action, was treated as not having become part of the act of February 24, 1844, for the limitation of actions, and, therefore, the act of April 19, 1873, above cited, should not be held to have become a part of the act for the limitation of actions, as contained in the Code, and subject to its several provisions. It was not considered in any of those cases whether the amendatory act of March 5, 1846, was to be treated as having become part of the act it amended. Nor was the question in either of the cases decided by the court of the State, whether the act of March 5, 1846, commenced to run, as to preexisting causes of action, from the date of its approval. In Boyd v. Barrenger, the action was instituted in about six months after the passage of the act of March 5, 1846, and it was held that the act barring such causes of action in three years did not apply, because that time had not elapsed since the passage of the act. . In Garrett v. Beaumont the action was commenced a year before the passage of the act of March 5, 1846, and the effort of the defendant to avail of a bar not created until long after suit instituted against him was ridiculous, and was condemned as not maintainable. In the last-named cause the court, speaking of whether the act of March 5, 1846, would bar a judgment existing at the date of its enactment, where three years had elapsed after that date, said : “ This question was not presented by the record in the case of Boyd v. Barrenger, and was consequently not decided. Neither is it decided in the present case, because it does not arise upon the record before us. This.is still an open question in this court, and we deem it proper to leave it so till it shall be presented by a case in court, and argued.” Notwithstanding this plain declaration of the court, and the facts of the cases, which did not present the question, it is true, and as amazing as it is true, that in Murray v. Gibson, the Supreme Court of the United States, professing to adopt the construction placed by the appellate court of this State on the statute, misconceived its decisions, and misapplied them to a case where the prescribed time had 'elapsed after March 5, 1846. We are unwilling to follow the lead of even the Supreme' Court of the United States in a total misconception and perversion of the decisions of our predecessors.

We hold that the act of April 19,1873, on its passage became a part of the Act of Limitations contained in the Code, and that time commenced to run on existing causes of action on all sealed instruments from the date of the act; and that by virtue of sect. 2169 of the Code of 1871 it ran against the State ; and that this action was barred when it was commenced, and the demurrer to the plea of the Statute of Limitations of seven years should have been overruled.

The foregoing views in no way affect the question of the personal liability of Furlong, nor preclude the State, on a proper presentation, from the benefit of that provision of the Statute of Limitations, as to him, that in case of fraudulent concealment of the cause of action, the cause shall not be deemed to have accrued until discovery of the fraud was made, or with reasonable diligence might have been, or from anything else which may obviate the bar of the Statute of Limitations. The present action may be converted by amendment into one against Furlong individually, if this is found to be desirable, and necessary to the ends of justice. We reverse the judg-. ment, and remand the cause for the Circuit Court to sustain the demurrer to the declaration, and make such further orders as may be according to law.