Blaco v. State

• Decision Date: 03 May 1899
• Docket Number: 10461
• Parties: RICHARD BLACO ET AL. v. STATE OF NEBRASKA ET AL
• Court: Nebraska Supreme Court

78 N.W. 1056

58 Neb. 557

RICHARD BLACO ET AL. v. STATE OF NEBRASKA ET AL

No. 10461

Supreme Court of Nebraska

May 3, 1899

ERROR from the district court of Lancaster county. Tried below before HOLMES, J. Reversed.

REVERSED AND REMANDED.

E Wakeley and Lee S. Estelle, for plaintiffs in error:

The act purporting to create the office of state inspector of oils is void, because it is an attempt to create an executive state office in violation of section 26, article 5, of the constitution, forbidding the creation of offices other than those named in the constitution. (In re Railroad Commissioners, 15 Neb. 679; Rowland v. City of New York, 83 N.Y. 372; United States v. Hartwell, 6 Wall. [U. S.] 385; Shelby v. Alcorn, 36 Miss 273; Hill v. Boyland, 40 Miss. 628; Miller v Supervisors, 25 Cal. 96; United States v. Maurice, 2 Brock. [U. S.] 103; Hall v. State, 39 Wis. 79; Henley v. Mayor, 5 Bing. [Eng.] 91; Commonwealth v. Evans, 74 Pa. St. 124; Bradford v. Justices of Inferior Court, 33 Ga. 332; People v. Kelly, 77 N.Y. 503; State v. Valle, 41 Mo. 29; Vaughn v. English, 8 Cal. 40; United States v. Tinklepaugh, 3 Blatch. [U.S.] 425.)

The law being unconstitutional, there was no such office as state oil inspector. (Norton v. Shelby County, 118 U.S. 425; Hildreth v. McIntire, J. J. Marsh. [Ky.] 206; Hawver v. Seldenridge, 2 W.Va. 274; Petition of Hinkle, 31 Kan. 712; Ex parte Snyder, 64 Mo. 58; State v. City of Camden, 28 A. [N. J.] 82; Carleton v. People, 10 Mich. 250; Town of Decorah v. Bullis, 25 Ia. 12; Ex parte Strang, 21 O. St. 610.)

The sureties are not liable for fees paid for inspection or pretended inspection of gasoline. (Commonwealth v. Jackson, 1 Leigh [Va.] 531; Foxcroft v. Nevens, 4 Greenl. [Me.] 72; Leigh v. Taylor, 7 Barn. & Cres. [Eng.] 491; People v. Pennock, 60 N.Y. 421; Ward v. Stahl, 81 N.Y. 406; Carey v. State, 34 Ind. 105; State v. Givan, 45 Ind. 267; Scott v. State, 46 Ind. 203; People v. Tompkins, 74 Ill. 482; Linch v. City of Litchfield, 16 Ill.App. 612; Saltenberry v. Loucks, 8 La. Ann. 95; City of San Jose v. Welch, 65 Cal. 358; Lowe v. City of Guthrie, 41 P. 198 [Okla.]; United States v. Adams, 24 F. 348; United States v. Morgan, 28 F. 48; McCormick v. Thompson, 10 Neb. 484; Moore v. State, 53 Neb. 831; State v. Holcomb, 56 Neb. 583.)

The case is one in which a public officer is presumed to have done his duty and the presumption is not overcome by proof. Even in a suit against himself alone, Hilton would have been entitled to the benefit of this comprehensive presumption. In the case of sureties who undertake merely that a public officer will perform his duty, there can be no presumption that he has not done it. His default must be alleged and proved. (United States v. Earhart, 4 Sway. [U.S.] 245; Hartwell v. Root, 19 Johns. [N. Y.] 345; Commonwealth v. Slifer, 25 Pa. St. 23; Squier v. Stockton, 5 La. Ann. 120; United States v. Dandridge, 12 Wheat. [U.S.] 69; Bruce v. United States, 17 How. [U.S.] 437.)

Admissions of an officer are only prima facie evidence against sureties. (United States v. Boyd, 5 How. [U. S.] 29, 50; Bissell v. Saxton, 66 N.Y. 55; Placer County v. Dickerson, 45 Cal. 12; Nolley v. Callaway County Court, 11 Mo. 447; Townsend v. Everett, 4 Ala. 607; State v. Rhoades, 6 Nev. 352; State v. Hill, 47 Neb. 456; Buffalo County v. Van Sickle, 16 Neb. 363.)

References as to the unconstitutionality of the act: Gibson v. Ogden, 9 Wheat. [U. S.] 1; Denn v. Reid, 10 Pet. [U. S.] 524; Smith v. State, 66 Md. 215; Woodberry v. Berry, 18 O. St. 456; Newell v. People, 7 N.Y. 9; Koch v. Bridges, 45 Miss. 247; Frye v. Chicago, B. & Q. R. Co., 73 Ill. 399; People v. Purdy, 2 Hill [N. Y.] 31.

C. J. Smyth, Attorney General, for the state.

The act creating the office of state inspector of oils is not unconstitutional. (People v. Rogers, 13 Cal. 160; State v. Wilson, 29 O. St. 347; State v. Weston, 4 Neb. 234; State v. Smith, 35 Neb. 25.)

The officer's default was proved. (Stoner v. Keith County, 48 Neb. 292.)

Defendants are estopped from denying the constitutionality of the law under which the officer collected the money in controversy. (Chandler v. State, 1 Lea [Tenn.] 296; Swan v. State, 48 Tex. 120; Morris v. State, 47 Tex. 583; Commonwealth v. City of Philadelphia, 27 Pa. St. 497; Middleton v. State, 120 Ind. 166; Mayor v. Harrison, 30 N. J. Law 73; Ferguson v. Landram, 5 Bush [Ky.] 237; Mississippi County v. Jackson, 51 Mo. 23; Vermillion Parish v. Brookshire, 31 La. Ann. 736; Miller v. Moore, 3 Humph. [Tenn.] 189; O'Neal v. School Commissioners, 27 Md. 227; People v. Brown, 55 N.Y. 180; Boehmer v. County of Schuylkill, 46 Pa. St. 452; McLean v. State, 8 Heisk. [Tenn.] 22.)

The judgment may be modified to show who was principal and who were sureties. (People v. Love, 25 Cal. 520; People v. Rooney, 29 Cal. 643; Schenectady & S. P. R. Co. v. Thatcher, 6 How. Pr. [N. Y.] 226.)

OPINION

The opinion contains a statement of the case.

SULLIVAN, J.

In 1887 there was passed and approved an act of the legislature providing for the appointment of a state inspector of oils defining his duties, fixing his fees, and prescribing penalties. (Compiled Statutes 1887, ch. 64, art. 2.) In March, 1893, Lozein F. Hilton was, under the authority of this statute, appointed state inspector of oils. He accepted the appointment and, in compliance with section 4 of the act, executed to the state of Nebraska a bond conditioned as follows: "The condition of this bond is such, that whereas the above bounden, Lozein F. Hilton, has been duly appointed by the governor of the state of Nebraska to the office of state inspector of oils: Now, therefore, if the said Lozein F. Hilton shall well and faithfully perform the duties of said office as imposed upon him by law in that behalf, then this obligation to be void; otherwise to be and remain in full force and effect." The sureties upon this obligation were Richard Blaco, W. C. Walton, E. A. Stewart, and John A. McKeen. On January 31, 1895, Hilton retired from office without having accounted for the sum of $ 5,622.56, which, it is claimed, was received by him in his official capacity. This action was thereupon instituted against him and his sureties to recover the alleged shortage. The cause was tried to a jury, and the trial resulted in a verdict against all of the defendants for the full amount claimed in the petition. A motion for a new trial was overruled and judgment rendered on the verdict. The sureties prosecute error, making Hilton a party defendant.

The first ground upon which it is claimed there should be a reversal of the judgment in favor of the state is that the law creating the office of state inspector of oils is unconstitutional, and that Hilton's official bond is therefore void. We need not in this action concern ourselves with the validity of the law. Whether it is void or valid is altogether immaterial. Under its authority Hilton accepted a commission from the governor, and for nearly two years performed the duties which the law imposed and received, and enjoyed the emoluments for which it provided. For the express purpose of securing to Hilton authority from the state to perform those duties and to receive those emoluments the plaintiffs in error executed to the state the bond in suit. In that bond they affirmed that Hilton had been duly appointed, and they therein undertook to answer for any failure on his part to perform the duties imposed upon him by the act. In affirming that Hilton was duly appointed, the sureties necessarily affirmed the validity of the law under which the appointment was made, and they cannot now repudiate their declaration nor impeach its truth. Having by their voluntary act secured to Hilton the fruits of the law, which was constructively incorporated into the bond, they are now, by a plain principle of justice, forbidden to deny that the law was constitutionally enacted. (Chandler v. State, 1 Lea 296; Village of Olean v. King, 116 N.Y. 355, 22 N.E. 559; Swan v. State, 48 Tex. 120; Morris v. State, 47 Tex. 583; Waters v. State, 1 Gill 302; Commonwealth v. City of Philadelphia, 27 Pa. 497; Middleton v. State, 120 Ind. 166, 22 N.E. 123; Hoboken v. Harrison, 30 N.J.L. 73; Ferguson v. Landram, 5 Bush 230; Mississippi County v. Jackson, 51 Mo. 23; Police Jury v. Brookshier, 31 La. Ann. 736.) In Middleton v. State, supra, it was held that the sureties of a city clerk, who had acted as collector and custodian of public moneys under the color of a void ordinance, were estopped to deny that the ordinance was void because they had contracted with reference to it. Discussing the question the court say: "In this case, the ordinances under which the principal received the money now sought to be recovered were in existence at the time the bond in suit was executed. His sureties undertook, voluntarily, that he should account for all moneys collected under such ordinances, and we know of no valid reason why they should not live up to that agreement. By this undertaking they enabled the principal to obtain the possession of the money, and we do not think they should be permitted to say now that he received it without authority." The case of Hoboken v. Harrison, supra, was an action against the principal and sureties on a bond given by Harrison, who had been appointed to an office which the city authorities had by an invalid ordinance attempted to create. The bond recited that Harrison had been duly appointed to the office of collector of assessments for street improvements, and it was held that the sureties would not be permitted to deny that the recital was true. Both on reason and authority we must, for the purpose of this case, assume that the law providing for the inspection of oils is a constitutional and valid act. But while declining at...