Trustees of Schools of Township No. 23 v. Cowden

Mr. Justice Hand delivered the opinion of the court:

This was an action of debt commenced by the trustees of schools of township 23, range 2, McLean county, in the circuit court of said county, against the défendants, as sureties upon the official bond, which was in the statutory form, of Robert S. McIntyre, as treasurer of said township. The declaration contained four counts, and there were filed thereto eleven pleas. The court sustained a demurrer to all of the pleas'except the first, and the case was tried before the court, by the agreement of the parties, without a jury, and a finding and judgment were rendered in favor of the plaintiff for $10,000 debt and.$6679 damages, which judgment, on the appeal of the defendants, was affirmed by the Appellate Court for the Third District, and they have prosecuted a further appeal to this court.

The pleas to which demurrers were sustained and the propositions of law submitted to the trial court by the defendants and refused raised the following questions, which have been discussed in the briefs of the respective parties:

First—It is contended that the sureties upon the official bond of a township treasurer are not liable for the acts and defaults of their principal which occurred prior to the execution of the bond. The trial court held the propositions of law incorporating the principle of law above enunciated, submitted by the defendants, in their favor, and the demurrers to the pleas which sought to present that principle of law upon the facts were properly sustained, as each of said pleas was not responsive to the counts of the declaration to which they were filed, in this: that each of said counts averred the funds of the township for which the sureties of McIntyre were sought to be held liable came into the hands of McIntyre subsequent to the execution of his official bond signed by the defendants and upon which this suit was predicated.

Second•—It is next contended that the defendants were released upon the official bond of McIntyre by reason of his failure to give a new bond within a reasonable time after the term of office covered by the bond signed by them had expired. It appears that McIntyre had been treasurer of the said township for a number of years; that he was reappointed for a full term and gave the official bond sued on on the 25th of September, 1903, and the position of the defendants is, that said bond only bound them to answer for McIntyre’s defaults for the period of two years from the date of his last appointment and for a reasonable time thereafter,—that is, for such reasonable time as would have afforded McIntyre an opportunity to have given a new bond. McIntyre died December 5, 1906, and the defendants were held to be liable for any defalcations which might have taken place between the date of the bond and the date of the death of McIntyre,-—that is, for a period of three years, two months and ten days.

The fifty-second paragraph of chapter 122 (3 Starr & Cur. Stat.—2d ed.—p. 3657,) provides that a township treasurer shall hold his office for two years and until his successor is appointed, and a township treasurer’s bond (a form of which is given in paragraph 99 of the same chapter of the statute) provides that such treasurer shall faithfully discharge the duties of said office according to the laws which now are or may hereafter be in force, and shall deliver to his successor in office, after such successor shall have fully qualified by giving bond as provided by law, all moneys, papers, securities and property which shall have come into the hands of such treasurer from the date of his bond up to the time his successor shall have duly qualified as township treasurer by giving such bond as shall be required by law. The bond in this case was given September 25, 1903. McIntyre died December 5, 1906, and demand was made upon the administrator of McIntyre, and each of the defendants, as sureties upon McIntyre’s bond, by said successor, to turn over to him and pay to him, as such successor, all moneys, books,' papers, securities and property which had come into the hands of McIntyre, as treasurer, since the date of said bond, and there being a failure to comply with such demand, this suit was begun against the defendants, as sureties, to enforce a compliance with the conditions of said bond.

We think it evident that paragraphs 52 and 99 of chapter 122 should be construed together, and this being done, it is clear that the defendants, as sureties upon said treasurer’s bond, remained liable for all moneys, etc., which came into McIntyre’s hands, as township treasurer, from the date of said bond until the date of his death. If the obligation assumed by the defendants, as sureties on said township treasurer’s bond, was held to terminate prior to the time when the principal in the bond had settled with and turned over to his duly qualified successor the moneys, etc., of the township, the same might be lost solely through the neglect of the trustees in not requiring the township treasurer, in case of re-appointment, to give a new bond, while the obligation of the bond as fixed by the statute is, that the liability of the sureties upon such bond shall only cease after the treasurer has delivered to his successor, who has duly qualified by giving bond, all moneys, books, papers, securities and property which has come into his hands or control, as such treasurer, from the date of his bond. In Swift v. Trustees of Schools, 189 Ill. 584 , on page 588, this court said: “The law is well settled in this State that a township treasurer, by virtue of the statute, is an insurer of the funds coming to his possession; that to exonerate himself upon his bond he must show that he has paid out or disposed of the funds in his hands in pursuance to law, or that he has been prevented from so doing by the act of God or the public enemy.”

The rule in this State is, that when the term of an offi- ( cer is fixed for a specified period of time by the statute, and it is provided he shall hold the office until his successor is appointed or elected and qualified, the mere expiration of the period of time fixed for the duration of the office will not operate to vacate the office, or to impair the powers of the officer to perform the duties of the office, or to release his bondsman for the defalcations of his’ principal during the period of time that may intervene between the expiration of the period of time specifically fixed in the statute and the appointment and qualification of his successor. People v. Beach, 77 Ill. 52 ; People v. Supervisor, 100 id. 332.

Third—It is finally contended that there is no competent evidence in this record upon which to base the judgment rendered in this case. It appears that during the time that McIntyre was township treasurer he kept the books and made the reports required of him, as such treasurer, by law. Those books and reports were introduced in evidence, and showed that at the- time of his death, after allowing him certain credits about which there was no controversy, there remained in his hands, unaccounted for, the amount of the judgment rendered against the defendants, as sureties, upon his official bond. Said books and reports were competent evidence and established the liability of defendants. Morley v. Town of Metamora, 78 Ill. 394 ; Roper v. Trustees of Sangamon Lodge, 91 id. 518 ; Longan v. Taylor, 130 id. 412 ; Cowden v. Trustees of Schools, 235 id. 604.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.