State ex rel. School District v. Harter

87 S.W. 941, 188 Mo. 516, 1905 Mo. LEXIS 43

• Court: Supreme Court of Missouri
• Decided: May 24, 1905
• Status: Published

Opinion

MAESHALL, J.

This is a suit begun on October 11, 1898, upon a bond for $20,000 given by the defendant Harter, as treasurer of the relator school district, and is against the principal and sureties on the bond.

The trial court sustained a demurrer to the petition, and the relator appealed.

The petition alleges that the relator is a duly organized and existing body corporate • that on the 22d of June, 1889, the defendant Harter, a member of the board of directors of said school district, was elected to the office of treasurer of the board for the year commencing July 1, 1889, and thereafter on the next day executed his bond as such treasurer, with his codefendants herein as his sureties, and, “that said bond was so conditioned as to be null and void if said Morris Harter should render a faithful and just account of all money that might come into his hands as treasurer of the said board of directors of said school district, and if he should otherwise perform the duties of his office according to law;” that said bond was duly approved by the board, and has become misplaced or stolen or lost and cannot be filed with the petition; that on the 1st,of January, 1883, said school district issued and sold thirty bonds of said district each for the sum of $1,000, expressed to be for value received, payable to the bearer in twenty years after date, redeemable at the pleasure of said school district at any time within five years from said date, at the American Exchange National Bank of New York, with six per cent interest per annum from date, payable semiannually, and that the said bonds were sold on the 3rd of November, 1883; that thereafter on the 25th of April, 1889, the board of directors of said school district ordered that the bonds aforesaid be refunded under the provisions of the statute laws of this State, and that for such purpose it was ordered that bonds of the amount of $30,000 be issued, bearing five per cent interest, payable in twenty years, with the privilege and option to redeem at any time after the expiration of five years, and that the secretary cause said bonds to be prepared and when prepared to be “exchanged for the outstanding bonds of the issue of January 1, 1883, or be sold for the purpose of obtaining tbe money with which .to pay off the outstanding issue aforesaid;” that said refunding bonds were issued as ordered; that on the 25th of July, 1889, bids for the sale of said refunding bonds were opened by the board, and one James C. Thompson was found to be'the best and highest bidder therefor, and his bid was accepted and the bonds were sold to him at the price of $30,000 and a premium of $365, “and it was thereupon duly ordered by said board, at said meeting, that Thompson turn over the proceeds of sale, the purchase price of said bonds, at once;” that pursuant to said order said refunding bonds were placed in the hands of defendant Harter, the treasurer of said board, to be turned over by him to said Thompson in exchange for said $30,000 and said premium, “in order that said moneys should be used in paying off and discharging said 30 bonds of the issue of January 1, 1883, as aforesaid, and plaintiff avers that defendant Harter did not exchange said bonds for said money as aforesaid and use the same in paying off and discharging said bonds of the issue of January 1, 1883. And plaintiff says that on the contrary the said defendant Harter, the treasurer of the said school board of said school district, failed to perform the duties of his office according to law in this, namely: The said James C. Thompson, on or about the — day of November, 1889, paid to said Harter, as treasurer of said school district, $30,000 and more, for said bonds, for which he, the said Morris Harter, as said treasurer, delivered the said 30 bonds of the issue of April 25, 1889, to said James C. Thompson, and thereafter the said Harter delivered back to said James C. Thompson the said moneys, the proceeds, as aforesaid, for the sale of said bonds of the issue of April 25,1889, and the said Thompson converted the same to his own use and benefit, and the said Thompson was, and now is, insolvent, and has fled from the country as a fugitive from justice and all of said moneys have thereby been wholly lost to the said school district, and plaintiff avers that the said Morris Harter, the treasurer as aforesaid, has not rendered a faithful and just account of the moneys, and also avers that the said bonds of said issue of April 25, 1889, for which said moneys were first received as aforesaid, were sold by said James C. Thompson for value to'various purchasers, and the same are now held and owned by various persons and are binding obligations upon the said school district. And plaintiff says that said defendant, Morris Harter, the treasurer of said school district as aforesaid, failed to perform the duties of his office according to law in this, namely: The said Morris Harter, treasurer as aforesaid, failed to use the said moneys, the proceeds aforesaid of the sale of said bonds of the issue of April 25, 1889, in discharging and paying off the said 30 bonds of the issue of January 1,1883, and failed to procure and- burn said latter bonds, by reason of which the same were negotiated and passed current in the market as unmatured negotiable instruments and commercial paper, and the same are now held by various purchasers in good faith for value, and are binding upon said school district, and which said bonds the said school district is bound in law to pay in full; and plaintiff says that the said defendant, Morris Harter, the treasurer of said school district as aforesaid, has not rendered a faithful and just account of the aforesaid moneys, the proceeds of the sale, as aforesaid, of said bonds of the issue of April 25,1889, which came into his hands as such treasurer as aforesaid, and has failed and refused to render any account whatever of said moneys to said school district, and said defendant, Morris Harter, as treasurer as aforesaid, has not settled in accordance with the law with the said school district for the moneys and funds received by him as aforesaid for the said bonds of said issue of April 25, 1889, received by him as aforesaid, as such treasurer.”

The prayer of the petition is for a judgment of $20,000. The defendants demurred to the petition'on the grounds, first, that the petition does not state facts sufficient to constitute a cause of action; second, because several causes of action, repugnant to each other, have been united and commingled with each other in said petition, and in the same count of the petition; third, because on the face of the petition the Statute of Limitations has run against the cause of action, if any, set forth in said petition.

I.

The point most strenuously discussed by counsel is as to whether this action, which was begun on the 11th of November, 1898, is barred by the three-year Statute of Limitations, being section 4274, Revised Statutes 1899, which is the pame as section 6776, Revised Statutes 1889.

That section of the statute provides the period within which civil actions shall be commenced, after the causes of action shall have accrued, and is as follows:

“ Sec. 4274. Within three years: First, an action against a sheriff, coroner, or other officer, up op a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution or otherwise; second, an action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the State.”

The defendants contend that under said section this action is barred. The plaintiff contends that said section does not apply to this case, because, first, the treasurer of a school district is not an officer within the meaning of that section, nor in the legal acceptation of the term, because under section 9864 he is neither. elected or' appointed, but is chosen by the school board, and may or may not be a member of the board, and because no official oath, such as is prescribed by section 9760 for school directors, is required of him, which is a legislative construction that a treasurer of a school district is not a public officer, and further that he is not required to take the official oath prescribed by section 6 of article 14 of the Constitution; and further because the treasurer of a school district does not come within the specification of officers referred to in section 4274, nor is he of the same class or kind as the officers spoken of in that section, and, therefore, under, the doctrine of ejusdem generis, such treasurer of a school district is not included. And from these premises the plaintiff contends that this being an action upon a bond, the ten-year Statute of Limitation, being section 4272, Revised Statutes 1899, applies.

The petition alleges that the defendant Harter was duly elected to the office of treasurer, etc., and that he, thereafter, duly filed his “official” bond as treasurer, which was approved and accepted by said board.

Section. 9864, Revised Statutes 1899, requires the board of a school district to organize by electing a president, a vice-president, a secretary and a treasurer; the secretary and treasurer may or may not be members of the board.

Section 9871, Revised Statutes 1899, requires the treasurer to enter into a bond conditioned “that he will render a faithful and just account of all money that may come into his hands as such treasurer, and otherwise perform the duties of his office according to law. ’ ’

Section 9869 provides that the treasurer “shall be responsible on his ‘official’ bond,” etc.

Section 9871, Revised Statutes 1899, requires the treasurer to make annual settlements, and prescribes that, “at the expiration of his term of office said treasurer shall deliver over to his successor in office all books and papers, with all moneys or other property in his hands, ’ ’ etc.

Thus both the petition and the statute treat the position of treasurer of a school district as an “office” and designate his bond as an “official” bond.

In State ex rel. Blakemore v. Rombauer, 101 Mo. 499, this court, in construing the meaning of the term “the title to any office under this State,” as employed in article 6 of section 12 of the Constitution, held, that there is a distinction between the term, “any State officer,” as employed in that, section, and the term, “involving the title to any office under this State,” and, accordingly, held that where the title to any office under this State was involved this court had jurisdiction of the appeal, although the person filling the office was not a State officer within the meaning of that- term as employed in the same section of the same article of the Constitution.

State ex rel. Macklin v. Rombauer, 104 Mo. 619, was a proceeding in prohibition to prohibit the St. Louis Court of Appeals from taking jurisdiction to oust the relator from the position of member of the school board in the city of St. Louis, and it was held, that the jurisdiction in such cases was lodged, by the Constitution, in this court, and not in the St. Louis Court of Appeals.

State ex rel. Rogers v. Rombauer, 105 Mo. 103, was a similar case. Those cases were bottomed upon the proposition that the title to an office under this State •was involved, although the person was not a State officer within the meaning of the Constitution. Since the rendition of those decisions this court has entertained jurisdiction in cases seeking to oust school directors from their office on the ground that the case involved the title to an office under this State, although the person was not a State officer, and this, too, notwithstanding it has also been held that a school district is not a political subdivision of this State so as-to confer appellate jurisdiction upon this court in cases where a school district is a party. [School District v. Boyle, 182 Mo. 347.]

State ex rel. v. Bus, 135 Mo. 325, was a proceeding in quo warranto to remove the defendant from the office of member of the school board in St. Louis, on the ground that the defendant became incompetent to hold the office because he had accepted appointment as deputy sheriff of the city of St. Louis, and under the Constitution was forbidden to hold two offices at the same time. In that case Maceablane, J., speaking for the court, said: “A public office is defined to be ‘the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. ’ [Mechem, Pub. Officers 1.] The individual who is invested with authority and is required to perform the duties is a public officer. ’ ’

Tested by these rules a treasurer of a school district must be held to perform “some portion of the sovereign functions of the government to be exercised by him for the benefit of the public,” and must therefore be a “public officer” within the meaning of the law. This was inferentially decided in State ex rel. v. Dorton, 145 Mo. 304, which was an action against tbe treasurer of a school district and which treated him as a “public officer,” though the point was not specifically decided in that ease.

II.

Section 4274 provides that civil actions must be commenced after the cause of action shall accrue, within three years, “against a sheriff, coroner or other officer.”

Relator contends that the treasurer of a school district is not a sheriff or coroner, and that the term ‘ ‘ other officer,” employed in the statute, following immediately after the specific enumeration of “sheriff,” “coroner,” means only such “other officer” as is of like kind, class or character as a sheriff or coroner.

There is no “other officer” of the same class, kind or character as a sheriff or coroner except a constable, and the term “other officer,” employed in the section, could not have referred to a constable, because ever since 1835 there has been a separate statute limiting the time within which actions against constables must he commenced, which limitation was two years until 1889, when it was extended to three years. [R. S. 1835, p. 116, sec. 4; R. S. 1889, sec. 2377; R. S. 1899, sec. 882.]

The term ‘ ‘ or other officer ’ ’ was not in the original act of 1848 (Laws 1848-9, sec. 5, pp. 74-5), which related only to a sheriff or a coroner, hut those words were inserted in the law in the Revision of 1855. [2 R. S. 1855, p. 1048, sec. 4.] That the Legislature did not intend that the words “or other officer” thus inserted after the words sheriff or coroner, should apply to a constable is clearly shown by the fact that in the Revision of 1855 there was a separate statute of limitations as to constables (R. S. 1855, p. 347, sec. 6), which limited such actions to two years.

It is one of the cardinal principles of construction of statutes that all the parts of the statute must, if possible, he given a meaning and effect. Under the construction contended for by the plaintiff, the amendment of 1855 putting in the words, ‘‘ or other officer, ’ ’ would he utterly meaningless, for as they could not apply to any officer, except officers of the same class or kind as a sheriff or coroner, and as, at the same session, a separate statute of limitations as to actions against constables was carried into the revision, the term “or other officer” could not apply to anything.

The maxim, “Ut res valeat magis quam per eat,” applies to the construction of the statute, and destroys, or shows the inapplicability of the doctrine of “ejusdem generis” contended for by the plaintiff.

In Bank v. Ripley, 161 Mo. l. c. 131, this court, per 'Vakliant, I., said: “It is a rule of construction that a statute should be construed so as to give effect to all its words, if it can be done. Out of that rule grew the further rule on which respondent relies, that is, that when particular words of description are used, followed by general words, the latter are to be limited in their ^meaning so as to embrace only a class of the things indicated by the particular words. The learned counsel for respondent, after stating the rule in their brief, and citing authorities in support of it, say: ‘ The reason of the rule of construction announced in the foregoing-cases is that if the general words were meant to embrace persons or things different in character and kind from those specifically enumerated, there would be no occasion at all for the specific enumeration.’ The rule, therefore, accomplishes the purpose to give effect to both the particular and the general words, by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words. This subject has several times received the attention of this court. [State v. Pemberton, 30 Mo. 376; St. Louis v. Laughlin, 49 Mo. 559; State v. Bryant, 90 Mo. 534; State ex rel. v. May, 106 Mo. 488; State v. Dinnisse, 109 Mo. 434; St. Louis v. Lane, 110 Mo. 254; State v. Schuchmann, 133 Mo. 111.] But this is only a rule of construction to aid us in arriving at the real legislative intent. It is not a cast-iron rule; it does not override all other rules of construction, and it is never applied to defeat tbe real purpose of the statute, as that purpose may be gathered, from the whole instrument. It is a corollary to the first proposition above stated, that the statute must be construed to give effect to all its words. The rule itself must not be so construed as to defeat that purpose. Whilst it is aimed to preserve the meaning of the particular words, it is not intended to render meaningless the general words. Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.”

In Ruckert v. Railroad, 163 Mo. 260, this court had before it the act of March 26, 1887 (Laws 1887, p. 39; now sec. 6116, R. S. 1899) which provided, in section two, that, “before granting any franchise for constructing or operating any elevated, underground, or other street railroad, on, over, or under any street or alley in any incorporated town or city, ” the city should, by ordinance, establish the route and the terms and conditions of the franchise, etc.; and the meaning of the term employed in the act, “other street railway,” was attempted to be confined to elevated and underground street railways, and'was claimed not to apply to surface railways, the contention being based upon the doctrine of ejusdem generis, but it was said, Gantt, J., speaking for this court: “Recognizing fully the usefulness of the rule of ejusdem generis in the construction of statutes, we understand that it must not be carried to such an extent as to nullify the plain intent of the statute,” and accordingly it was held to apply to surface railways as well.

In Shelby County v. Bragg, 135 Mo. 291, the statute was held to apply to a suit on the bond of the clerk of the criminal court of St. Louis.

In State to use v. Dailey, 4 Mo. App. 172, the statute was held to apply to a suit on the bond of a circuit clerk. In State ex rel. v. Stonestreet, 92 Mo. App. 214, the statute was held to apply to a clerk of the circuit court and his sureties on his official bond.

The statute of Iowa is almost identical with the statute of Missouri, and is as follows: ‘' The following actions may be brought within the time herein limited respectively, after their - causes accrue and not after-wards, except where otherwise specifically declared; . . . Three years: . . . those 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 nonpayment of money collected on execution, within three years. ’ ’

The Supreme Court of that State held the statute applicable to suits against officers other than sheriffs or coroners. In County of Poweshiek v. Ogden, 7 Iowa 177, it was applied to an action against.a county judge on his bond. In State v. Dyer, 17 Iowa 223, and in Keokuk County v. Howard, 41 Iowa 11, and in State v. Henderson, 40 Iowa 242, it was applied to a suit against a county treasurer. In Prescott v. Conser, 34 Iowa 175, it was applied to a successor to the clerk of the board of supervisors. In Steele & Johnson v. Bryant, 49 Iowa 116, it was applied to a clerk of the district court on his bond. In Moore v. McKinley, 60 Iowa 367, it was applied to a deputy district clerk on his bond.

The statute of Indiana is substantially like the statute of Missouri, and the Supreme Court of that State held that the statute applied to a suit against a county treasurer (Pickett v. State ex rel., 24 Ind. 366); to a township trustee (Hawthorn v. State ex rel., 57 Ind. 286); and to a county auditor (Ware v. State ex rel., 74 Ind. 181).

The conclusion necessarily follows, that section 4274 applies to a treasurer of a school district and bars a civil action against him and his sureties on his official bond, “upon a liability incurred by the doing of an act in his official capacity, or in virtue of his office, or by tbe omission of an official duty,” etc., and as the failure of duty specified in the petition must have occurred during the defendant Harter’s term of office, which expired on the 1st of January, 1890, and as this action was not begun until the 11th of October, 1898, the action is barred by limitation.

This conclusion renders it unnecessary to consider the other points involved in the case, and results in affirming the judgment of the circuit court. It is so ordered.

All concur, except Lamm, J., who had been of counsel and therefore did not sit.