Berrien County Treasurer v. Bunbury

• Decision Date: 05 January 1881
• Citation: Berrien County Treasurer v. Bunbury, 45 Mich. 79, 7 N.W. 704 (Mich. 1881)
• Court: Michigan Supreme Court
• Parties: BERRIEN COUNTY TREASURER v. BUNBURY and others.

7 N.W. 704

45 Mich. 79

BERRIEN COUNTY TREASURER v. BUNBURY and others.

Supreme Court of Michigan

January 5, 1881

Questions on the evidence cannot be con sidered here. Where an action on a city treasurer's bond was brought in the name of the office of county treasurer, held, that the defect, if any was curable by amendment, and could not be raised for the first time in the appellate court. The county treasurer is proper party plaintiff in such action. A bond was given as required in section 1000, Comp.Laws, and, after the obligation, recited, "reference being had to the warrant of the supervisor of said township attached or to be attached to the assessment roll for the year 1872." As to one of the rolls there was no warrant. Held, that this addition to the obligation was mere surplusage, and that the treasurer was liable on the bond for all tax moneys actually received by him, whether they could have been legally collected or not. Certain findings held erroneous.

Edward Bacon and John J. Van Riper, for plaintiff in error.

H.H Coolidge, O.W. Coolidge, and T.G. Beaver, for defendant in error.

GRAVES, J.

This action was brought on the official bond given by Thomas A Bunbury as treasurer of the city of Niles to Samuel Hess the county treasurer of Berrien county "and his successor or successors in office forever." It was commenced by declaration to which the defendants pleaded the general issue. The judge heard the case without a jury and on certain findings of fact rendered judgment for the defendants. The case is brought up on exceptions to the findings of law. The judge seems to have formed a theory which in his opinion justified a partial finding of facts and enabled him to dispose of the case without a finding of certain facts which would be indispensable in case the view of the law on which he acted should turn out untenable. The findings appear below.

On examining the declaration it appears that all the breaches sufficiently assigned to admit evidence are averred as having consisted of neglect and refusal to account for and pay over money received as taxes. Under the charter of Niles the treasurer is to perform the same duties in relation to the collection and return of taxes for state, county and school purposes assessed and levied within said city as is required of township treasurers and in the same manner, with the like restrictions and under the same liabilities. Act No 134, Laws 1859, � 21, p. 372. He is required to give the same bonds as township treasurers (section 40, p. 383) and to discharge the duties in regard to school moneys which in townships are devolved on treasurers. Section 46, p. 385.

A township treasurer is required to give a bond to his township for the faithful discharge of the duties of his office and that he will faithfully and truly account for and pay over according to law all moneys which shall come into his hands as such treasurer (Comp.Laws, � 713) and this bond is to be given within 10 days after he is notified of his election. Sections 712 and 681. But after notification by the supervisor of the amount of state and county tax apportioned to his township and on or before the twenty-fifth of November he must give another bond. This is to be executed "to the county treasurer and his successors in office" and "in double the amount of state and county taxes" and "conditioned that he shall duly and faithfully perform the duties of his office." Section 1000.

The bond in question was given in compliance with this last provision and not as answering to the first bond which in the case of township treasurers is to run to the township. It is very apparent that the action on this bond has no reference to any cause of action by the city of Niles against Bunbury for failure to pay over or account for anything belonging to the city. The suit has no such scope, if any such were possible. The briefs of counsel seem to imply that questions in regard to evidence can be examined. Of course this is not so. It was for the circuit judge to hear what might be said on the state of the evidence and in respect to inferences and presumptions and thereupon to find the necessary conclusions of fact. If there was presumptive evidence to make out any such fact it was for the judge to consider it and spread the result upon the record as a fact which he found. No such process is here admissible. It is confined to the court of original jurisdiction and we cannot pay attention to arguments to the contrary. The brief of defendants' counsel contains the general objection that the action was commenced by an improper party, by a party having no interest in the bond nor in its collection.

Perhaps the bare name of office was not sufficient, and that the individual name of the treasurer should have been used with the office by way of addition. Com'rs of Highways of Cortlandville v. Peck, 5 Hill, 215; Sup'rs of Galway v. Stinson, 4 Hill, 136: Agent of Mount Pleasant Prison v. Rikeman, 1 Denio, 279; Overseers of the Town of Hebron v. Eley, Lalor's Supp. to Hill & Denio, 379. But if so the point is not available. The defendants should have taken the objection before pleading to the merits. It does not appear to have been raised below and it cannot be urged here for the first time. The fault admitting it to be one is curable by amendment. Barber v. Smith, 41 Mich. 138 and cases; Johr v. St. Clair Sup'rs, 38 Mich. 532; Agent of Mount Pleasant Prison v. Rikeman, supra. If the gist of the objection is that the treasurer is not in law competent to be plaintiff the position is not valid.

There is no provision which in express terms confers the power, but none is necessary. There is no statute against it, and when the giving of the bond is prescribed as a piece of security for the safe-keeping and payment of the state and county taxes, and the county treasurer is designated as the one to be obligee, the law points him out as the one to be invested with the legal interest and as the proper party plaintiff in the case of a suit. A different construction would lead to the awkward conclusion that the legislature carefully exacted an obligation to protect the public interests and then allowed it to be waste paper for want of some provision identifying the party plaintiff to enforce it. The rule is general that all public officers though not expressly authorized by statute have a capacity to sue commensurate with their public trusts and duties. Sup'rs of...