Bd. of Educ. for the City of Auburn v. Quick

• Decision Date: 05 May 1885
• Citation: Bd. of Educ. for the City of Auburn v. Quick, 99 N.Y. 138, 1 N.E. 533 (N.Y. 1885)
• Parties: BOARD OF EDUCATION FOR THE CITY OF AUBURN v. QUICK.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 138

1 N.E. 533

BOARD OF EDUCATION FOR THE CITY OF AUBURN

v.QUICK.

Court of Appeals of New York.

Filed May 5, 1885.

E. D. Wright, for appellant, Henry V. Quick.

Richard C. Steel, for respondent, Board of Education, etc.

FINCH, J.

We have no doubt that the official bond of the treasurer and tax receiver extended to and protected the school fund here sought to be recovered.That bond is in the ordinary form, and conditioned for the due performance of the duties of the office.It is the settled rule as to such obligations that they extend to all such duties as may at any time be added to the office, or imposed upon the officer; and these are held to be within the contemplation and the liability of the obligors.People v. Vilas, 36 N. Y. 469.By a special enactment(Laws 1871, c. 93, § 19) relating to the public schools of the city of Auburn, all moneys levjed and raised for their support, together with the public money received from the state, and all received from other sources belonging to the school fund, were required to be paid to the city treasurer and tax receiver in trust, to be by him kept separate and distinct from other moneys; to be known and distinguished as the public school fund, and to be paid out on orders signed by the president and secretary of the board of education.The act further provided that such treasurer and tax receiver, and his sureties, should be liable on their official bonds for any default, delinquency,neglect, or misconduct in relation to such trust, and in that event it was made the duty of the board of education to commence suit in the supreme court against such treasurer and tax receiver, and his sureties, for the recovery of sums diverted to other purposes.

The criticism of the learned counsel for the appellant upon this enactment is founded upon the words ‘in trust,’ used to characterize the custody of the separate and distinct moneys constituting the school fund; and his contention is that such moneys were held by the treasurer, not in his official capacity, but as a trustee for the board of education.The provision bringing these funds within the protection of his official bond, and making the obligors liable therefor, conclusively dispels any such idea.There is no special force in the words ‘in trust’ to justify such construction.In his official capacity the treasurer held all the public moneys in trust, whether any statute so specifically declared or not.His custody of the public moneys was a public trust, and they were none the less for that reason held by him in his official capacity.The trust was attached to the office; the school fund came to him as the officer; it passed to his successor in the office; his title to receive it depended upon his office; and his official bond was expressly made to cover it.There is no warrant in the existing facts for treating him, as to the school fund, as the unofficial and private trustee of the board of education.The duties added by the act were in every sense official, because not different from the ordinary and usual duties of the office.Before 1871 the treasurer received the school moneys in common with the other funds of the city, and paid them out upon the warrant of the city officers.They were mingled with the other municipal funds, the title to which was in the city, and for their safety the treasurer was officially liable.The change made in 1871 in no manner essentially altered the duty of the officer to receive and keep safely the school moneys.He received them as before, and was bound to keep them as before.The change effected was to require him to keep them separate, and answer for them to one department of the city government instead of to the municipality.In this his official character and duties were not essentially altered.To treat him as a mere unofficial trustee would do violence to the facts, and to the obvious scope of the...