Chiee Justice PIayt
delivered the opinion of the court.
This is an action against the county treasurer of Pueblo county, and the sureties upon Ms official bond, for failure to pay over certain public moneys collected by such treasurer. The answer sets up several inconsistent defenses, the most important of wliich is the claim that the money was deposited by the treasurer in his official capacity in a repu[157]*157table and solvent banking institution, which subsequently failed, so that the money was entirely lost, and, as it is alleged, without any fault or negligence on the part of the treasurer. The district court overruled this defense, and this raises the principal question in the cause. The authorities in support of the liability of the treasurer, and the sureties upon his official bond, in these circumstances are so numerous as to practically preclude the citation of any cases within the limits of this opinion, except those most easy of access. U. S. v. Prescott, 3 How. 578; U. S. v. Morgan, 11 How. 154; U. S. v. Dashiel, 4 Wall. 182; U. S. v. Keehler, 9 Wall. 83; Boyden v. U. S., 13 Wall. 17; Bevans v. U. S., 13 Wall. 56 ; U. S. v. Thomas, 15 Wall. 337; Muzzy v. Shattuck, 1 Denio, 233; Commissioners v. Lineburger et al., 3 Montana, 231; The State v. Moore, 74 Mo. 413; Tillinghast v. Merrill, 45 N. E. (N. Y.) 375.
The case first cited— U. S. v. Prescott,—is admittedly the leading case upon the subject. It was an action against a receiver of public moneys, who had given bond conditioned to keep safely the moneys collected by him, and it was held that the fact that the money was feloniously stolen without any fault on his part constituted no defense. The conclusion reached in that case is affirmed in many later cases, and in no case has it been modified or changed except by act of Congress. It is true that in the subsequent case of U. S. v. Thomas, supra, it was held that a receiver of public moneys was excused if prevented from rendering the money by the act of God or the public enemy, without any fault or neglect on his part. The opinion of the court in the Thomas case was rendered by Mr. Justice Bradley. As this case has sometimes been referred to as changing the rule announced in U. S. v. Prescott, supra, it may be well to note the particular modification of the former opinion which is, in fact, made in that case. This modification sufficiently appears from the opinion wherein it is said of the Prescott case: •
“ After reciting the condition of the bond, the court adds, [158]*158with a greater degree of generality, we think, than the case before it required, ‘ The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.’
“ This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events, as now contended for by the government. But that case was one in which the defense set up was, that the money was stolen, and a much more limited responsibility than that indicated by the above language would have sufficed to render the defense nugatory.”
We think this language shows that the court did not intend to intimate that an incorrect result was reached in the Prescott case. The real point decided in the latter case was, that the forceable seizure by the Confederate authorities, during the civil war, of public moneys in the hands of loyal government agents, free from fault or negligence, was a sufficient discharge from their obligations in reference to such moneys. The majority of the court was of the opinion that the facts presented made out a complete defense, and judgment was given accordingly. While Justices Swayne, Miller and Strong dissented from this conclusion, yet it should not be overlooked that this dissent was from the conclusion of the majority that the defense was good. Of the dissenting justices, Miller alone filed an opinion, in which he expressly disclaims speaking for any of Ms associates. Statements made in this dissenting opinion are relied upon for the purpose of enforcing the argument in favor of the discharge of the defendants in this case; but the dissent of the learned justice was from a decision declaring against the liability of the officer, and not from a decision upholding such liability. In other words, Justice Miller was of the opinion that, as the law then stood, the defense was not good.
The following from the opinion of the court in the case of U. S. v. Prescott, supra, has certainly never been modified by [159]*159any subsequent decision of that court, and is as applicable to present conditions as it was appropriate at the time it was penned:
“ Public policy requires that every depositary of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that ‘ he should keep safely ’ the moneys which come to his hands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of the, customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public? No such principle has been recognized or admitted as a legal defense. And it is believed the instances are few, if indeed any can be found, where any relief has been given in such cases by the interposition of congress.”
The decision in the Prescott case is put expressly upon public policy and upon the conditions of the bond. The cases in which a contrary result has been reached are few in number and serve to call attention to the general rule, and the unanimity with which it has been indorsed, rather than to weaken the force and effect of the solid foundation upon which the rule rests. The leading case upon the opposite side of the controversy is that of Cumberland County v. Pennell, 69 Me. 357. The force of this decision is somewhat weakened by the fact that out of a court of seven members, the chief justice and two associate justices dissented. The majority of the court, in a strongly reasoned opinion, held, however, that robbery constituted a valid defense to an action upon the official bond of a county treasurer for public moneys received by him.
Referring to the Maine case, the supreme court of Nevada, in State v. Nevin, 19 Nev. 162, says : “ We say the Maine case stands alone in its opposition to what it is pleased to [160]*160term the new-born policy of the law. In that case some reliance seems to have been placed upon the case of Albany v. Dorr, 25 Wend. 440, but the principles of that case were repudiated in Muzzy v. Shattuck, supra, and hence we are authorized to say that the case in Maine is unsustained by any other recognized authority in any of the courts of the United States, federal or state.”
In the case of York County v. Watson, 15 S. C.
Free access — add to your briefcase to read the full text and ask questions with AI
Chiee Justice PIayt
delivered the opinion of the court.
This is an action against the county treasurer of Pueblo county, and the sureties upon Ms official bond, for failure to pay over certain public moneys collected by such treasurer. The answer sets up several inconsistent defenses, the most important of wliich is the claim that the money was deposited by the treasurer in his official capacity in a repu[157]*157table and solvent banking institution, which subsequently failed, so that the money was entirely lost, and, as it is alleged, without any fault or negligence on the part of the treasurer. The district court overruled this defense, and this raises the principal question in the cause. The authorities in support of the liability of the treasurer, and the sureties upon his official bond, in these circumstances are so numerous as to practically preclude the citation of any cases within the limits of this opinion, except those most easy of access. U. S. v. Prescott, 3 How. 578; U. S. v. Morgan, 11 How. 154; U. S. v. Dashiel, 4 Wall. 182; U. S. v. Keehler, 9 Wall. 83; Boyden v. U. S., 13 Wall. 17; Bevans v. U. S., 13 Wall. 56 ; U. S. v. Thomas, 15 Wall. 337; Muzzy v. Shattuck, 1 Denio, 233; Commissioners v. Lineburger et al., 3 Montana, 231; The State v. Moore, 74 Mo. 413; Tillinghast v. Merrill, 45 N. E. (N. Y.) 375.
The case first cited— U. S. v. Prescott,—is admittedly the leading case upon the subject. It was an action against a receiver of public moneys, who had given bond conditioned to keep safely the moneys collected by him, and it was held that the fact that the money was feloniously stolen without any fault on his part constituted no defense. The conclusion reached in that case is affirmed in many later cases, and in no case has it been modified or changed except by act of Congress. It is true that in the subsequent case of U. S. v. Thomas, supra, it was held that a receiver of public moneys was excused if prevented from rendering the money by the act of God or the public enemy, without any fault or neglect on his part. The opinion of the court in the Thomas case was rendered by Mr. Justice Bradley. As this case has sometimes been referred to as changing the rule announced in U. S. v. Prescott, supra, it may be well to note the particular modification of the former opinion which is, in fact, made in that case. This modification sufficiently appears from the opinion wherein it is said of the Prescott case: •
“ After reciting the condition of the bond, the court adds, [158]*158with a greater degree of generality, we think, than the case before it required, ‘ The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.’
“ This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events, as now contended for by the government. But that case was one in which the defense set up was, that the money was stolen, and a much more limited responsibility than that indicated by the above language would have sufficed to render the defense nugatory.”
We think this language shows that the court did not intend to intimate that an incorrect result was reached in the Prescott case. The real point decided in the latter case was, that the forceable seizure by the Confederate authorities, during the civil war, of public moneys in the hands of loyal government agents, free from fault or negligence, was a sufficient discharge from their obligations in reference to such moneys. The majority of the court was of the opinion that the facts presented made out a complete defense, and judgment was given accordingly. While Justices Swayne, Miller and Strong dissented from this conclusion, yet it should not be overlooked that this dissent was from the conclusion of the majority that the defense was good. Of the dissenting justices, Miller alone filed an opinion, in which he expressly disclaims speaking for any of Ms associates. Statements made in this dissenting opinion are relied upon for the purpose of enforcing the argument in favor of the discharge of the defendants in this case; but the dissent of the learned justice was from a decision declaring against the liability of the officer, and not from a decision upholding such liability. In other words, Justice Miller was of the opinion that, as the law then stood, the defense was not good.
The following from the opinion of the court in the case of U. S. v. Prescott, supra, has certainly never been modified by [159]*159any subsequent decision of that court, and is as applicable to present conditions as it was appropriate at the time it was penned:
“ Public policy requires that every depositary of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that ‘ he should keep safely ’ the moneys which come to his hands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of the, customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public? No such principle has been recognized or admitted as a legal defense. And it is believed the instances are few, if indeed any can be found, where any relief has been given in such cases by the interposition of congress.”
The decision in the Prescott case is put expressly upon public policy and upon the conditions of the bond. The cases in which a contrary result has been reached are few in number and serve to call attention to the general rule, and the unanimity with which it has been indorsed, rather than to weaken the force and effect of the solid foundation upon which the rule rests. The leading case upon the opposite side of the controversy is that of Cumberland County v. Pennell, 69 Me. 357. The force of this decision is somewhat weakened by the fact that out of a court of seven members, the chief justice and two associate justices dissented. The majority of the court, in a strongly reasoned opinion, held, however, that robbery constituted a valid defense to an action upon the official bond of a county treasurer for public moneys received by him.
Referring to the Maine case, the supreme court of Nevada, in State v. Nevin, 19 Nev. 162, says : “ We say the Maine case stands alone in its opposition to what it is pleased to [160]*160term the new-born policy of the law. In that case some reliance seems to have been placed upon the case of Albany v. Dorr, 25 Wend. 440, but the principles of that case were repudiated in Muzzy v. Shattuck, supra, and hence we are authorized to say that the case in Maine is unsustained by any other recognized authority in any of the courts of the United States, federal or state.”
In the case of York County v. Watson, 15 S. C. 1, it was, however, held upon the statutes of South Carolina, that no higher obligation should be exacted of a county treasurer than that imposed by the common law, and in an action on his official bond, the fact that the money was deposited in a savings bank which was in good standing at the time the moneys were placed there, but which afterwards failed, occasioning a loss of the fund, was held a sufficient defense upon the bond. This is the only case to which we have been cited or which we have been able to find in which such a defense has been upheld; while in the very recent cases of Fairchild v. Hedges, 44 Pac. Rep. (Wash.) 125, and Tillinghast v. Merrill, 45 N. E. Rep. (N. Y.) 375, and Bush et al. v. Johnson County, 66 N. W. Rep. (Neb.) 1023, a contrary conclusion has been reached. In these cases it is held that a county treasurer is liable for money deposited by him in a bank which afterwards became insolvent, though free from negligence himself, and though the county has failed to provide a safe place of deposit for the public funds. See, also, Wilson et al. v. Wichita County, 67 Tex. 647.
The case of State v. Houston, 78 Ala. 576, is also cited in support of the minority rule. We do not think, however, that this case can afford any aid to plaintiffs in error, for the reason that the court bases its decision almost entirely upon the official bond of the officer, while in the case at bar the weight of the argument is directed to show that the official bond can in no way enlarge the liability of the officer, it being given solely, as it is claimed, for the purpose of indemnifying the county in case the officer does not conform his conduct to the requirements of the statutes. The condition [161]*161of the bond under consideration by the Alabama court, as fixed by the statute, was “that the collector will, with fidelity, skill and diligence, perform the duties of the office and keep inviolable the trust reposed in him.” Although the court held that a bond conditioned as provided by the statute did not impose absolute and unconditional liability, it also decided that the statute and considerations of public policy enlarged the degree of responsibility beyond that of a mere bailee for hire, and that having exercised the highest care, vigilance and diligence to prevent loss, the collector, if robbed of money belonging to the state, by an overpowering-force, should he discharged. Here, again, the bond was construed as enlarging the liability, and while holding the defense interposed, good in law, the court confines the defense to a case where the specific funds of the state have been forcibly taken, and adds, that if it should appear that the funds received by the collector have been used or changed for any unauthorized purpose, he will become thereby a debtor, and he and his sureties would he bound to absolute payment, as for a debt. To constitute a defense the court holds that the robbery must he of money, the property of the state, and that where an amount has been substituted for the amount misused, the defense would not be good, and the court expressly limits its decision “to the ease of irresistible force.” The case, as we have seen, is a direct authority in favor of the doctrine that liability may he enlarged by the conditions of the bond.
It is a mistake to class the New York eases in support of the minority doctrine. It is true that in the case of the Supervisors v. Dorr, 25 Wend. 438, the supreme court of New York held that a public officer intrusted with public funds is not responsible for money stolen from his office in the absence of negligence or other default on his part. This case was taken to the court for the correction of errors. See 7 Hill, 583. Upon the question being put upon errror, “ Shall this judgment he reversed ? ”, twelve members of the court of errors voted for affirmance, and twelve for reversal. The judges being equally divided in opinion, the judgment of the supreme [162]*162court was allowed to stand, but the effect of this equal division did not settle the question of law, and consequently the case has no force as a precedent. Bridge v. Johnson, 5 Wend. 342. Indeed, when the question of law again came up in that state for determination, it was settled the other way. See Muzzy v. Shattuck, 1 Denio, 233. Of this latter decision, Mr. Hill, in Ms note to the report of the case in 7 Hill, says : “ That decision, which appears to be utterly irreconcilable with the one reported in the text, was subsequently reviewed by the court for the correction of errors, and m December, 1846 was unanimously affirmed.” And, as we have said, in the recent case of Tillinghast v. Merrill, supra, the New York court of appeals takes a position squarely against the contention of appellants in the case at bar.
We do not regard the case of the State v. Lanier, 31 La. Ann. Rep. 423, as in point, for the reason that the evidence in that case showed that the robbery pleaded as a defense could have been avoided by the exercise of ordinary care and diligence on the part of Lanier, the tax collector; hence, the defense was not made out, and the court was, consequently, not called upon to decide, and, M fact, did not decide, the abstract question of law as to the validity of the defense of robbery, where the officer has exercised due care and diligence. Hence we find nothing in the opinion to indicate what the conclusion of the court would have been upon the general proposition.
In the case of Walker v. British Guarantee Association, 18 Adolphus & Ellis (N. S.), 276, the treasurer, agamst whom the smt was brought, was sued for private funds. Similar principles do not prevail in such cases, as it is admitted that a higher degree of responsibility is exacted of a public officer entrusted with public funds than of a mere private bailee. See People v. Walsen, 17 Colo. 170, and cases cited.
The authorities favoring the stricter rule of liability largely outnumber those favoring the contrary rule, and the courts maintaining the former doctrine are certainly of equal standing and learning as those upholding the “newborn [163]*163'doctrine.” We, therefore, conclude, upon authority as well as reason, that the well established rule upon the subject is, that public officers intrusted with public funds and required to give bonds for the faithful performance of their public duties are not mere bailees of the money, bound only to exercise ordinary care, since their liability is influenced by the policy of the law, winch requires greater strictness, and also by the conditions of their official bonds.
In accordance with the great weight of authority this court held, in Goss v. Commissioners, 4 Colo. 468, that “ the bond of the county treasurer is the measure of his duties as treasurer, and is the contract covering his duties and all those in his employ performing the duties of the office.”
In the case of the State v. Walsen, 17 Colo. 170, it was contended that the state treasurer is a bailee or trustee of the public funds, and, as such, subject only to the common-law liabilities of trustees. But the court refused to take this view of the law, and pointed out a difference in several particulars wherein the obligation of the treasurer differs from that of an ordinary trustee or bailee. In the TValsen case it was held that the state treasurer, under our constitution, was absolutely liable for all the public moneys received by him.
Appellants rely very strongly upon two cases in 19 Colorado—McClure v. Commissioners, p. 122, and Wilson v. The People, p. 199. In the McClure case the attempt was made to trace public moneys collected by the treasurer into the purchase 'of certain property for the purpose of having a trust declared and enforced against such property. In determining this question, it became necessary to investigate the relationship that a county treasurer holds to the money which .comes into his hands by virtue of his office, and the court said: “We think that under the provisions of our statute relating to a county treasurer, the money collected and received by him belongs to the county, and that he holds a fiduciary relationship thereto, that constitutes him a bailee, with express and extraordinary liability.” As this declara[164]*164tion is immediately followed by the statutory requirements of his bond, it would appear that the enlarged liability imposed was based to some extent, at least, upon the conditions of his bond. The opinion is a direct authority fox the doctrine that the relationship of the treasurer to the public money collected by him in his official capacity is not that of a bailee at the common law.
The question presented in the case of Wilson et al. v. The People, supra, was as to the liability of the clerk of the district court for moneys of private litigants, which had been deposited with him to abide the result of the suit, lío question was then before the court with reference to the liability of a public officer for public moneys received by him. The case does not refer to the case of Goss v. County Commissioners, 4 Colo. 468, and it certainly was not the intention of the court, as then constituted, to overrule the former decision. The conclusion reached in the Wilson case was without doubt correct, but in the argument certain expressions were used with reference to the bonds of public officers, which should have been confined strictly to the facts of the case there under consideration.
The bond, which is the basis of this suit, is in the language of the statute. The conditions are the same as those under consideration in the Goss ease, su2?ra, viz:
“ That if the said Wilson P. Gartley and his deputies and all persons employed in his office, shall faithfully and promptly perform the duties of said office, and if said Wilson P. Garbley and his deputies shall pay, according to law, all moneys which shall come into his hands as treasurer * * * and shall deliver over to his successor * * * all moneys * * * belonging to Iris office, the above obligation to be void. Mills’ Ann. Stats, sec. 886.
The bond is not essentially different from that passed upon by the supreme court of the United States, in the case of U. S. v. Prescott, 3 Plow. 578. The statute fixing the form of the bond was enacted in territorial times, when the decisions of the supreme court of the United States upon stab[165]*165utory construction were controlling in this jurisdiction, and by a familiar rule, in adopting the statute we did so with the construction theretofore placed upon it.
It is urged that the force of the decision in the Prescott case was practically destroyed by a subsequent act of congress, and that we should, therefore, favor a less strict rule of accountability ; in other words, we are asked to construe some-tiling into the statute which is not there. As in that case an act of congress was found necessary to give relief, so here relief must come from the legislature and not from the courts.
The strictness of our law with reference to the liability of public officers for public funds is apparent from the constitution and statutes of this state. By section 12 of article 10 of our constitution, it is provided that “ the general assembly may provide by law further regulations for the safe-keeping and management of the public funds in the hands of the treasurer, but, notwithstanding any such regulation, the treasurer and his sureties shall in all cases be held responsible therefor.”
It is true the last clause of the sentence makes absolute the liability of the state treasurer, for all public funds received by him by virtue of Ms office, but taking the whole sentence together we are of the opinion that it was not intended to create a new liability but to avoid the possibility of regulation on the part of the general assembly from being construed as creating an exception to the general rule of absolute liability.
In addition to the indication of the policy of the law to be gathered from the condition of the bond of a county treasurer, which we have sufficiently considered, attention is called to the following: “ Each county is responsible to the state for the full amount of tax levied for state purposes, excepting such amounts as are certified to be unavailable, double or -erroneous assessments, as provided in this act.” Mills’ Ann. Stats., sec. 3778.
Aside from the instances therein specially excepted, this makes the liability of the county to the state absolute, so that in this case, should the treasurer’s special defense be [166]*166held good, the comity would not, for that reason, be discharged from its obligation to pay over the amount of tax collected for state purposes, although it would have no recourse upon the county treasurer for reimbursement, a construction that we think should not be indulged.
Our conclusion is that in an action on the official bond of a county treasurer for public moneys collected by him, the fact that the moneys were deposited in a solvent banking institution which thereafter fails, causing the loss of the funds, constitutes no defense. Whether a county treasurer would be excused from rendering the money if prevented from doing so by the act of God, or the public enemy, without any fault or negligence on the part of the treasurer, is not presented in this case, and therefore not decided.
Notwithstanding our conclusion is against the appellants upon what we have considered the main controversy in the case, as now presented, the judgment of the district court must be reversed for error in sustaining plaintiff’s motion for judgment upon the pleadings in view of the specific denials contained in other defenses of the answer. People ex rel. v. Lathrop, 3 Colo. 429; Pike v. Sutton, 21 Colo. 84.
For this error, the judgment of the district court will be reversed and the cause remanded for further proceedings, in accordance with this opinion.
Reversed.