Bd. of Cnty. Com'rs of Scott Cnty. v. Ring

• Decision Date: 28 August 1882
• Citation: 29 Minn. 398,13 N.W. 181
• Parties: BOARD OF COUNTY COM'RS OF SCOTT COUNTY, MINNESOTA, v RING AND OTHERS.
• Court: Minnesota Supreme Court

29 Minn. 398

13 N.W. 181

BOARD OF COUNTY COM'RS OF SCOTT COUNTY, MINNESOTA,vRING AND OTHERS.

Supreme Court of Minnesota.

Filed August 28, 1882.

Appeal from district court, county of Scott. Judgment.

H. J. Peck and Henry Hinds, for respondents.

Geo. B. Young and Southworth & Marrinan, for appellants.

DICKINSON. J.

This is an action upon the official bond of the defendant Ring, as county treasurer, to recover from him and his sureties for a failure on the part of Ring to pay over, according to law, public moneys received by him by virtue of his office. The delinquencies for which a recovery is sought occurred, for the most part, as is disclosed by the case, between the first of March, 1880, and the twenty-first of June, 1880. Ring was elected treasurer in 1877, for the term commencing March 1, 1878, and the bond upon which this action was brought was given for such term, during the continuance of such term, and at the general election in November, 1879, Ring was re-elected for the succeeding term, to commence March 1, 1880. Ring failed to procure or furnish the bond lawfully required of him by the board of county commissioners for such second term, but continued to discharge the duties of the office until June 21, 1880, when he was deposed from office by the board of county commissioners, and one Baumhagen was soon afterwards appointed to such office. Judgment was recovered in the action, and the sureties upon the bond appeal therefrom.

The question to be determined is whether the sureties upon Ring's official bond, executed upon his first election to the office, are bound for the delinquencies of their principal occurring after his re-election, and between March 1 and June 21, 1880. The judgment is erroneous, unless these sureties were holden for that entire period. The obligation upon which the defendants are sought to be charged is in the nature of an express contract. This contract consists of the statutory bond and the statute law relating to the office, The bond being in general terms, not in themselves expressing the extent or limit of the liability of the obligors, and being executed pursuant to the statute which prescribes the term of office and contain conditions respecting the tenure of the incumbent, the statute itself, in legal effect, forms part of the contract and must be considered by the court in construing it. County of Wapello v. Bigham, 10 Iowa, 39;Mayor of Wilmington v. Horn, 2 Harr. 190-195;South Carolina Society v. Johnson, 1 McCord, 41. The liability of these defendants is to be determined by the construction of the contract into which they have entered; and in construing that contract we are to seek to ascertain from what is there expressed the intention of the parties. The bond is in the form prescribed by statute, and, after reciting the election of Ring as county treasurer at the general election in 1877, is conditioned simply that Ring shall faithfully execute the duties of his office, and safely keep and pay over, according to law, all moneys which shall come into his hands for the various purposes named. The statute which was in force at the time the bond in question was executed, contains the following provisions, (chapter 8, Gen. St. 1878, § 144:) “In each county there shall be elected a county treasurer, whose term of office shall commence on the first day of March next succeeding his election, and continue for two years, and until a successor is elected and qualified.”

Section 145 provides that “before such officer shall enter upon the duties of his office he shall take an oath of office and give bond with sureties to be approved by the board of county commissioners, and in such sum as they direct, conditioned that such officer shall faithfully execute the duties of his office, and for the safe-keeping and paying over according to law of all moneys which come into his hands for state, county; township, *** and all other purposes.” The oath and bond are to be filed and recorded as directed in this section.

Sec. 146. “If any person elected to the office of county treasurer shall not give bond and take oath as required by the preceding section on or before the fifteenth day of January next succeeding his election, it shall be deemed a refusal to serve.”

Sec. 147. “In case of a vacancy in the office of county treasurer by death, resignation, or otherwise, the board of county commissioners shall appoint some suitable person *** to be treasurer, who shall file the bond and take the oath prescribed, *** and shall hold the office until a county treasurer is elected and qualified.”

Chapter 9, Gen. St. 1878, is in part as follows:

Sec. 2. “Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: First, the death of the incumbent; *** sixth, his refusal or neglect to take his oath of office, or to give or renew his official bond or to deposit or file such oath or bond within the time prescribed by law.”

Sec. 11. “In all offices not otherwise provided for, when a vacancy is authorized to be filled by appointment, such appointment shall continue until the next general election occurring after there is sufficient time to give the notice prescribed by law, and until a successor is elected and qualified.”

The statute contemplated that at the end of two years from March 1, 1878, Ring would be succeeded in the office by a person elected for the term then to commence, (March 1, 1880.) But the person elected as such successor might fail to qualify, and hence not be entitled to enter upon the discharge of the duties of the place. The legislature saw fit to make express provision for such case; and instead of leaving the former incumbent to remain in office until a succeeding election, as might have been done by chapter 9, above recited, it was enacted that upon such event occurring the office should “become vacant.” By force of section 147, c. 8, it then became the duty of the board of county commissioners to fill the vacancy by appointment.

It is claimed upon the authority of state v. Benedict, 15 Minn. 198, that chapter 9, § 2, of the statute above recited, is not applicable to this case because Ring was not an “incumbent” of the office by virtue of his second election. In the case cited it was considered by the court that that part of this statute which made “the death of the incumbent” to create a vacancy in the office, was not applicable in case of the death before qualification of one who had been elected to the office of register of deeds. The pronoun “his” in the several succeeding subdivisions of the section would undoubtedly grammatically refer to the word “incumbent” in the first subdivision, but the expressed intention of the legislature, where it can be ascertained from the language used, will prevail over a strictly grammatical construction leading to a different result.

There can be no doubt that the sixth subdivision is intended to refer, not merely to one already administering an office, but as well to one elected or appointed to an office, but not yet qualified, and who, hence, by force of other statutory provisions, is not entitled to enter upon its duties. The conditions there named, the non-performance of which within the time prescribed by law is declared to create a vacancy, are, in part at least, such as can properly apply only to an officer elect, but not yet qualified. And such has been the construction put upon similar statutes in other states. County of Wapello v. Bigham, 10 Iowa, 39;State v. Goetze, 22 Wis. 348;State v. Motheny, 7 Kan. 327. The word “renew” in subdivision 6, taken in connection with the statute fixing the term of office, and requiring the execution of a bond, before entering upon the discharge of official duties, makes it clear, if there otherwise could be doubt, that the statute includes, among the conditions creating a vacancy, the neglect of one re-elected to an office, which he already holds, to execute a new bond as security in respect to the succeeding term. The statute was so applied in County of Wapello v. Bigham, supra.

We are brought to the conclusion that by the terms of the statute, and upon the occurrence of an event expressly provided for therein, a vacancy occurred in the office, within the meaning of the statute, by the neglect of Ring to qualify for his second term on or before the fifteenth day of January, 1880, and that it then became the duty of the board of county commissioners, enjoined also by statute, to appoint a person to succeed Ring after March 1st. The office of county treasurer did not, in the proper sense of the word, become vacant, at least before March 1st; for until then the former term of Ring continued. The word “vacant,” in the statute cited, must be regarded as applying to the particular term to which the event causing a vacancy relates, which, in this case, would be the term for which Ring was re-elected, and which should have commenced March 1, 1880. Whether or not the term “vacant” is a strictly proper one to be applied to the office in such case, it is enough, for the decision of this case, to say that the event occurred on the fifteenth day of January which should have terminated the right of Ring to hold the office after March 1st, and which made it the duty of the county commissioners to appoint an incumbent for a period then to commence. This was not done; nor, so far as appears, was any effort made on the part of the county commissioners to fill the office by the appointment of another incumbent until June 21st. The statute is to be considered as a whole, and so construed as to give effect to every part.

In view of the provisions of chapter 9, just considered, section 144 of chapter 8 cannot be so construed as to authorize Ring, upon his own neglect or refusal to qualify under his second election, to hold the office for the period of a second term by virtue of the election two years before. That would be...