Albertson v. State

• Citation: 2 N.W. 742,9 Neb. 429
• Parties: ISAAC ALBERTSON AND OTHERS, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Decision Date: 16 October 1879
• Court: Nebraska Supreme Court

2 N.W. 742

9 Neb. 429

ISAAC ALBERTSON AND OTHERS, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 16, 1879

ERROR to the district court for Colfax county. Tried before POST J. The case is stated in the opinion.

REVERSED.

C. J Phelps and Marlow & Munger, for plaintiff in error, cited Board of Education v. Kersinger, 2 W. L. M. Hunter v Commissioners, 10 Ohio State, 515. Commissioners v. Craft, 6 Kan. 145. Sec. 95 Gen. Stat., 930. Snyder v. The State, 21 Ind. 77. Taggart v. The State, 49 Ind. 42. Cabel v. McCafferty, 53 Ind. 75.

C. J. Dilworth, Attorney General, for the State.

MAXWELL, CH. J. LAKE, J., concurring.

OPINION

MAXWELL, CH. j.

Isaac Albertson was treasurer of Colfax county from the fourth day of December, 1871, to the fifth day of January, 1874. On the seventeenth day of March, 1876, the state of Nebraska commenced an action against Albertson and his sureties on his official bond, in the district court of Colfax county, to recover the sum of $ 2,210, claimed to be due the state, the items being as follows: $ 824.43 state taxes, $ 60 judiciary fund, $ 455.09 interest on school land, $ 870.50 principal of school land.

On the trial of the cause the plaintiff recovered the entire sum claimed. Albertson and his sureties bring the cause into this court by petition in error.

The plaintiffs in error called as a witness one Woods who had been employed as an expert by the county commissioners of Colfax county to examine Albertson's accounts, who testified that from the examination made by him it appeared that Albertson had overpaid the general fund $ 926.07, state sinking fund $ 185.45 3/4, university and state normal school fund $ 485.47 3/4. That there was a balance due the state on the state school fund of $ 231.21 3/4. The witness testifies that he made his statements from the receipts of the state treasurer to Mr. Albertson; that he, with one Bleker, had been employed by the county commissioners of Colfax county, soon after the expiration of Mr. Albertson's term of office, to examine his accounts, and had spent about four weeks in making the examination. The original receipts could not be found at the time of the trial, but the witness swears that the aggregate amounts were taken from such receipts at the time of the examination three years before. No attempt was made on the part of the state to impeach this testimony by showing from the proper records of the county that it is incorrect. This should have been done.

Section 42, chapter 13, Gen. Statutes, 239, provides that "the county clerk shall keep a distinct account with the treasurer of the county for each several term for which the treasurer may be elected, in a book to be provided for that purpose, commencing from the day on which the treasurer shall assume the duties of his office, and continuing until the same or another person is qualified as treasurer, in which account he shall charge the treasurer with all sums paid him, and for all sums for which the treasurer is accountable to the county, and he shall credit him with all orders returned and cancelled, with all moneys paid, and with all vouchers presented to him, and with all matters with which the treasurer is credited on account.

Section 47, chapter 66, Gen. Stat., 916, provides that "the county clerk is required to keep a duplicate of the treasurer's cash book, and to enter therein all duplicate receipts by him received from the treasurer, in the same manner and form as the treasurer is required to keep the same."

Section 77, page 925, provides that "the county treasurer shall settle with the county commissioners on or before the first Monday of May, and on the first Monday of October; provided, however, that the county commissioners may require the county treasurer to settle with them at any time. The treasurer is to be charged with the amount of all tax lists placed in his hands for collection, and credited with the amounts collected thereon, and the delinquent lists; he shall leave his vouchers with the commissioners to be retained by them for evidence of his settlement. If the treasurer's accounts are correct, the commissioners shall certify the same; if not, he shall be liable on his bond."

It will thus be seen that the account with the county treasurer is kept in the county, and the settlement is to be made with the county commissioners. The state taxes are to be collected and paid to the state treasurer, and the receipt received therefor is to be used as a voucher in his settlement with the commissioners. This receipt given by the state treasurer is the original; a duplicate thereof, it is shown by the testimony, is filed in the auditor's office and a copy retained in the treasurer's office. While the auditor is the general accountant of the state, and is required [Gen. Stat., 1011] to keep all "public account books, accounts, vouchers, documents, and all papers relating to the accounts and contracts of the state, and its revenue, debt, and fiscal affairs, not required by law to be placed in some other office, or kept by some other officer or person," yet in a contest as to the amount paid to the state treasurer by a county treasurer, the original receipt of the state treasurer filed with the county commissioners prima facie will control.

It appears from the record that one F. E. Frye acted as deputy for Albertson, and had acted as deputy for his predecessor. That Albertson, in fact, had trusted the business to his care. It also appears that on the fourth day of December, 1871, Albertson received from his predecessor the sum of $ 10,421 belonging to the several funds, but we are not informed whether this included the sum of about $ 2,000 afterwards paid by Frye to the state treasurer on the account of Carson, the predecessor of Albertson. And the testimony entirely fails to show what sum, if any, Albertson turned over to his successor in office. Under the issue made in the pleadings the burden of proof was on the state, and there not being sufficient proof to sustain the judgment it must be reversed.

The plaintiffs insist that the action cannot be prosecuted in the name of the state. Section 5, chapter 6, Gen. Stat., 99, provides that: "All bonds by county and precinct officers shall be given to the county in which such officers are elected respectively, * * and shall be approved by the county commissioners and filed in the office of the county clerk, unless otherwise provided by law." The bonds in this case are given to the "County of Colfax."

Section 30 of the code, Gen. Stat., 528, provides that: "Every action must be prosecuted in the name of the real party in interest, except as provided in section thirty-two."

Section 32 provides that: "An executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is to be prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way."

Section 643, page 639, Gen. Stat., provides that: "When an officer, executor, or administrator within this state, by misconduct or neglect of duty, forfeits his bond or renders his securities liable, any person injured thereby, or who is by law entitled to the benefit of the security, may bring an action thereon in his own name against the officer, executor, or administrator, and his sureties, to recover the amount to which he may be entitled by reason of the delinquency."

Evidently two classes of cases are covered by these provisions, the one where the security is taken to protect the rights of the public, and the other where it is taken to protect the rights of individuals, as in the case of Stewart v. Carter, 4 Neb. 564. Huffman v. Koppelkom, 8 Neb. 344. In this class of cases the action may be brought in the name of the individual, because the public have no interest in the matter in controversy, and a judgment in favor of one person is no bar to another action thereon by some other person injured by a breach of the conditions of the bond. This section seems to be limited to cases of private injury and to have no application where the injury is to the public. Where the injury is to the public the action must be prosecuted as provided in section thirty-two.

This question was before the supreme court of Ohio in Hunter v. Commissioners of Mercer County, 10 Ohio St. 515. In that case the bond was given as required by statute to the state of Ohio, conditioned for the faithful discharge of the official duties of ...