De Rockbraine School District No. 1 of Corson County v. Northern Casualty Co.

McCOY, P. J.

Findings and judgment were in favor of plaintiff, and defendant, Northern Casualty Company, appeals.

There is but one question vital to a determination of this cause. One Beacom was treasurer of the respondent school district, and appellant, Northern Casualty Company, was a surety on his official bond. The obligation of such (bond was as follows:

“The conditions of the above obligation are such that, if said P. William Beacom, treasurer as aforesaid, shall honestly and faithfully discharge his duties as treasurer of said school district, acocrrfing to the laws which now are or may hereafter be in force, and shall render a true account of all funds and property that *394 shall come into his hands, and pay over and deliver the same according to law, and at the expiration of his term of office deliver to and pay over to his successor in office all moneys, books, papers, securities, and property in his hands as treasurer, then this obligation shall be null and void; otherwise, to remain in full force.”

Beacom deposited with the First State Bank of McIntosh $3,192.07 of the moneys of respondent, which came into his hands as such treasurer. While said moneys were- so deposited, the said bank became insolvent and failed, and said moneys by reason thereof became lost to> plaintiff; the said Beacom never having paid the same to plaintiff. There was no malfeasance in office on the part of said treasurer, nor any negligence in the selection by him of said bank as a depositary for said moneys.

It is .tire .contention of .appellant that under these circumstances it is not liable to make said moneys good to respondent; that appellant by such bond only obligated itself to make good such moneys as plaintiff might lose by reason of the malfeasance, fraud, or dishonesty of said treasurer. It is contended that such treasurer was only required to malee payments of said moneys to plaintiff according to law; that said treasurer, being- a bailee. for hire, was only required by law to use due care in selecting a depositary for said moneys, and, having done so, cannot be required to make good the loss occasioned by such bank failure. We are of the opinion that such contention is not well grounded. There, are some authorities, however, holding otherwise; but we are of the view that the great weight of judicial authority is against appellant’s contention, when applied to a statute and an obligation ■such as is contained in the bond in question. The statute under which the bond in question was given provides that such treasurer shall give a bond conditioned that he will honestly and faithfully discharge his duties .as treasurer, that he will render a true account of all funds that shall come into his hands, and pay and deliver the same according- to law.

The question here is: ITas there been a breach i-n the conditions of the bond? Has the condition of the bond been broken where the treasurer, although guilty of no negligence or malfeasance, fails to account for and pay over the funds intrusted to him when required to do so ? We are of the view that such failure constitutes a breach of the bond. Such a treasurer’s liability *395 is to be measured by the terms and conditions of 'his bond and the statute under which the same was given, and these, in this case, bind'him to pay over to his successor all moneys that shall come into his hands as such ’treasurer, or otherwise account for and pay out the same according to law. When no selection of a depositary 'has been made, the only way he can legally account for and pay out the same “according to law” is to pay the same out upon warrants legally issued and drawn by the proper officers against such funds and by turning the remainder over to his successor. This is the only sort of paying over “according to law” that is comprehended within the terms of said bond and the statutes of this state. Under such a bond and statute defendant Beacons and his sureties were insurers of the school funds in question.

The great weight of authority sustains this proposition, with respect to the liability of a public officer and his sureties for the loss of public moneys: That where the statute in direct terms imposes the duty to fay- over public moneys received and held as such, and no condition limiting that obligation is discoverable in the statute or bond, the obligation thus imposed and assumed by the public officer will be deemed to be absolute, and the fact that the money has been lost, either through theft, robbery, bank failure, accidental fire, or other cause, without his fault, does not constitute a defense to an action for recovery on the bond. Cameron v. Hicks, 65 W. Va. 484 , 64 S. E. 832 , 17 Ann. Cas. 926, and exhaustive note; Clay County v. Simonsen, 1 Dak. 403 , 46 N. W. 592 ; Tillinghast v. Merrill, 151 N. Y. 135 , 45 N. E. 375 , 34 L. R. A. 678, 56 Am. St. Rep. 612 ; Gartley v. People, 24 Colo. 155 , 49 Pac. 272 ; Van Trees v. Territory, 7 Old. 353, 54 Pac. 495 ; Lamb v. Dart, 108 Ga. 602 , 34 S. E. 160 ; Mecklenburg Co. v. Beales, 111 Va. 691 , 69 S. E. 1032 , 36 L. R. A. (N. S.) 289; Fairchild v. Hedges, 14 Wash. 117 , 44 Pac. 125 , 31 L. R. A. 851; Board of Ed. v. Jewell, 44 Minn. 427 , 46 N. W. 914 , 20 Am. St. Rep. 586 ; Rose v. Douglass Tp., 52 Kan. 451 , 34 Pac. 1046 , 39 Am. St. Rep. 354 ; Babcock v. Rocky Ford, 23 Colo. App. 312 , 137 Pac. 899 ; Bush v. Johnson County, 48 Neb. 1 , 66 N. W. 1023 , 32 L. R. A. 223, 58 Am. St. Rep. 673 ; N. P. Ry. v. Owens, 86 Minn. 188 , 90 N. W. 371 , 57 L. R. A. 634, 91 Am. St. Rep. 336 ; Nason *396 v. Directors, 126 Pa. 455 , 17 Atl. 616 ; State v. Bobleter, 83 Minn. 479 , 86 N. W. 461 .

The judgment and order appealed from are affirmed.