Blaco v. State

• Decision Date: 03 May 1899
• Citation: 58 Neb. 557,78 N.W. 1056
• Parties: BLACO ET AL. v. STATE ET AL.
• Court: Nebraska Supreme Court

58 Neb. 557

78 N.W. 1056

BLACO ET AL.

v.STATE ET AL.

Supreme Court of Nebraska.

May 3, 1899.

Syllabus by the Court.

1. When sureties, for the purpose of enabling their principal to assume the duties, and enjoy the emoluments, of an office to which he has been appointed, execute an official bond, containing a recital that the appointment has been duly made, they will not be permitted afterwards, when sued on such bond, to deny the validity of the act creating the office.

2. In such case, the law authorizing the appointment to be made is constructively incorporated into the bond, and its validity affirmed by the obligors 3. Under the provisions of Comp. St. 1887, c. 64, art. 2, it is the duty of the inspector of oils and his deputies to inspect every oil which is a product of petroleum, and which is intended by the owner to be put upon the market and sold for illuminating purposes.

4. The act providing for the inspection of oils recognizes gasoline as a product of petroleum, and contemplates its inspection when kept for sale as an illuminant.

5. The fact that no grade or quality of gasoline will bear the statutory test does not exempt such oil from inspection, if the owner intends to offer it for sale as an illuminant.

6. The design of the law providing for the inspection of oils was not merely to prescribe a test for those products of petroleum which might or might not, according to their quality, be dangerously inflammable, but rather to require an effective inspection of every product of petroleum intended to be sold and used in this state for illuminating purposes.

7. A person owning gasoline, kept or intended for sale as an illuminating oil, is, under the act of 1887, legally bound to submit it for inspection, and he is also bound to pay the inspector the statutory fees for the services rendered.

8. The fees so paid are paid for official services, and are within the purview of the inspector's bond.

9. In an action on the bond of a public officer, the sureties cannot successfully defend on the ground that the money which their principal misappropriated was received by him for official acts irregularly performed.

10. When the inspector of oils examines gasoline, and places upon the cask in which it is contained the statutory brand of condemnation, he performs an official act, and the fees received by him for the service are officially received, although the dangerously inflammable character of the oil has not been determined by actually applying the test prescribed by the statute.

11. The presumption that a public officer has executed with fidelity the duties with which he was charged is a mere arbitrary rule of law, which loses its force and effectiveness when met by opposing proof.

12. There being in this case evidence that the inspector of oils was indebted to the state when he went out of office, and the answer containing an implied admission that he had not lawfully disbursed all moneys received for inspecting gasoline, the presumption of official faithfulness does not obtain.

13. The failure of the clerk of the district court, in recording a judgment, to certify, in accordance with the provisions of section 511 of the Code of Civil Procedure, that some of the defendants in the action are sureties, is reversible error, although the matter has not been brought to the attention of the trial court by motion or otherwise.

Error to district court, Lancaster county; Holmes, Judge.

Action by the state and others against Richard Blaco and others. Judgment for plaintiffs. Defendants bring error. Reversed.

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

C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for defendants in error.

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. Comp. St. 1887, c. 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; Com. v. City of Philadelphia, 27 Pa. St. 497; Middleton v. State, 120 Ind. 166, 22 N. E. 123;Mayor, etc., v. Harrison, 30 N. J. Law, 73; Ferguson v. Landram, 5 Bush, 237;Mississippi Co. 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 Mayor, etc., 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 purposes of this case, assume that the law providing for the inspection of oils is a constitutional and valid act. But, while declining at this time to inquire into the validity of the law, we do not wish to be understood as intimating that it may not be valid.

Another defense to the action relied on in the...