Summary
.From the circuit court of Itawamba county.
IIon. Eugene 0. Sykes, Judge.
The state, suing for the use of Itawamba county, appellee, was'the plaintiff in the court beloiv; Arnold, and the sureties on his bond as county treasurer, appellants, were- defendants there. The plaintiff had judgment in the circuit court and defendants.appealed to the supreme court. The facts are fully stated in the opinion of the court. A previous litigation for same liability was before the sumpreme court in the case of Adams. State Revenue Agent, v. Arnold, 76 Miss., 655.
We know that our court has said in one ease that public officers were insurers of the public funds that came into their hands, Adams v. Lee, 72 Miss., 767, and therein the court announced that the'question had been before decided in Griffin v. Levee Commissioners, 71 Miss., 767. Both of these cases were against tax collectors, and a correct result reached on the facts of each of them.
'Plie rule was only applied in the Lee case, and if it be confined to tax collectors, the case then before the court, the opinion may be supported on authority and reason. But it is the purest dicta when applied to public officers generally, and when it be sought to extend the doctrine to county treasurers, can neither be sustained by authority or reason. The reason why it was unnecessary to apply the doctrine of insurers in the Lee case, supra, is because there the tax collector had been guilty of a breach of his bond independent of § 3842, code of 1892. And it was by virtue of this section he became and was an insurer.
Many of the decisions from the different states which apply the rule of insurers to public officers rest upon statutes similar to § 3842. This section of our code is limited to tax collectors, and its counterpart applicable to county treasurers (§ 907, code 1892), does not embrace the case of an honest official who has lost the money without negligence or fault on his part. Section 907 nominates the specific eases in which the penalty fixed shall be imposed, i. e., “the county treasurer who misapplies, wastes, or embezzles any money.'” We invoke the familiar rule in construction of statutes, that where the legislature specifies eo nomine the person or subject, such specification is the exclusion of all other persons or subjects. The inclusion of one person is the exclusion of all others. The question presented by this record is one of first impression, to be determined by the principles of the common law and such other statutes as may enlarge the county treasurer’s liability. If these statutes do not distinguish the ease at bap from the Lee and Griffin cases, supra, we have no hesitancy in saying they ought to be overruled. Of course when you find a statute like § 3842, code 1892 (applying the rule to tax collectors), that settles the question.
The following states rest the rule on the reason “that the public officer is a debtor to the county,” viz.: Indiana, Massachusetts, Michigan, New Jersey, New York and Missouri. Shelton v. State (Ind.), 21 Am. Rep., 197-200: Halbert v. State, 22 Ind., 125; Hancock- v. Hazzard (Mass.)] 59 Am. Dec., 171; Perley v. Muskegon (Mich.), 20 Am. Rep., 637; Inhabitants of New Providence v. McPachern, 23 N. J. L., 339; Muzzey v. Shattuck, 1 Denio (N. Y.), 233; State v. Powell (Mo.), 29 Am. Rep., 512. This court will not follow these cases, for the principle on which they rest is opposed to the policy and settled law of this state.
The following cases, from the' states next to1 be named, rest on the reason “that the officer has violated the terms of his bond, or some official duty prescribed by the-statute, and that public policy demands that liability be enforced:” Minnesota, Iowa, Missouri, Nebraska, Nevada, Montana and Pennsylvania. Board v. Jewell, 46 N. W., 914; TJnion Township v. Smith (39 Iowa), 18 Am. Rep., 39; State v. Moore, 74 Mo., 413, s.c. 41 Am. Rep., 322; Jefferson County v. Lineberger (3 Mont., 23), 35 Am. Rep., 463; Nason v. Poor (Penn.), 17 Atl. Rep., 616; Ward v. School District (10 Neb.), 35 Am. Rep., 477; State v. Harper (6 Ohio- St), 67 Am. Rep., 364; State v. Nevin (Nevada), 7 P., 650.
These cases all follow the leading case of United States v. Prescott, 3 How. (IT. S.), 573, which has been very much qualified, if not overruled, by the more recent case of United States v. Thomas, 15 Wall., 337. It is important to note that all of the above cases, as well as other cases decided by the supreme court of the United States, in following the Prescott case, never rest alone on public policy. They invariably connect it, though, with the weightier reason “'that the officer has violated the bond or some official duty prescribed by .statute.”
The following states have already repudiated this rule, to wit: South Carolina, North Carolina, Nebraska, Iowa, New York, California, Nevada, Tennessee, Wyoming, Alabama, Colorado, Montana, Illinois, Pennsylvania, and also the court of claims and the supreme court .of the United States. United States v. Thomas, 15 Wall., 337-854; Cumberland v. Parnelle (69 Me.), 81 Am. Pep., 284; Walker v. British, etc., 18 Ad. & El. (N. S., 277) ; York County v. Watson (15 So. Car.), 40 Am. Pep., 675; State v. Blair, 76 N. C., 78; Lowrey v. Polk, 33 Am. Pep., 114; People v. Faulkner (107 N. Y.), 14 N. E., 419; State v. Copeland (Tenn.), 34 S. W., 428; State v. Gunn (Wyoming), 40 L. P. A., 690; State v. Houston (78 Ala.), 56 Am. Pep., 59; Wilson v. People (Colorado), 34 P., 945, s.c. 22 L. P. A., 451, and notes; Bealdsburg v. Mulligan (113 Cal.), 45 P., 337, s.c. 33 L. P. A.; Slate v. Hill (Nebraska), 66 N. W., 561; Livingstone v. Woods (Montana), 49 P., 437; Chicago Railway v. Bartlett (Ill.), 11 N. E., 867, s.c. 120 Ills., 603; WiTkesbarre v. Bockefellow (Pa.), 33 A., 270, s.c. 171 Pa. St., 177; Boss v. Hatch, 5 Iowa, 149.
We have, then, fourteen states, the supreme court and court of claims of the United States, repudiating the rule as being harsh, unjust, and contrary to principle, as against seven states that hold to and yet enforce the rule. There are six other states which hold public officers to be insurers on the ground that the officer becomes a debtor to the county or state the moment the public moneys come into his hands. This is contrary to our statute, § 3077, code 1892, and in a collection of authorities these latter states ought not to be counted. But if counted, we shall have then fourteen states against the rule with twelve states for it, and the supreme court of the United States overruling virtually the Prescott case, which was truly the foundation and origin of the rule in this country.
Unfortunately for the appellants, the legislature has made it tbe duty of a county treasurer “to receive and keep the moneys of the counties.’’ Code 1892, § 901. It would be monstrous to excuse this defaulting treasurer upon the facts in the case.
There is little to be gained by an endless search for the reason upon which the policy of the law, rests. It is a statute, and it is sufficient to say: “Ita lex scripta est
The great extremity to' which the argument of appellant’s counsel carries him is demonstrated by his exclaiming that the contract did not require his clients to keep the money at “all hazards.” The law holds individual contracting parties to the obligations they assume, unless the act of God or public enemy relieve them, yet it does not hold them at “all hazards.'” Certainly an officer has no right to complain where an individual citizen may not lawfully do so.
In State v. Lee. 72 Miss., 286, this court says: “But the better view, in our opinion, is that public officers are insurers instead of bailees of the funds which come into their hands by virtue of their office, and are absolutely responsible, unless excused by the act of God or the public enemy.”
Griffin’s case, 71 Miss., 767, was defended on the ground that the board of supervisors did not furnish a safe; a demurrer to such plea was sustained. Slcinner v. Wilson. 61 Miss., 96, went off on the construction of an agreement as between the plaintiff and the sheriff with reference to the levy of an exe--cution. The language of the court in the latter part of the opinion refers to that class of eases, and has no application her1©. The same may be said as to the case of Sims v. Quin, 58 Miss., 321. Those rvere quarrels with private persons who interfered with the sheriff in the execution of civil process.
The very able brief of Mr. Barron, filed for the county, makes it unnecessary to argue the case further.
The reporter has been unable to find Mr. Barron’s brief; it is lost from the record.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
