Board of County Commissioners v. Knudson

• Decision Date: 03 February 1898
• Docket Number: Nos. 10,937 - (284).,s. 10,937 - (284).
• Citation: 71 Minn. 461
• Parties: BOARD OF COUNTY COMMISSIONERS OF SWIFT COUNTY v. THOMAS KNUDSON and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

71 Minn. 461

BOARD OF COUNTY COMMISSIONERS OF SWIFT COUNTY v. THOMAS KNUDSON and Others.¹

Nos. 10,937 - (284).

Supreme Court of Minnesota.

February 3, 1898.

Appeal by certain of the defendants from an order of the district court for Swift county, Powers, J., denying their motion for a new trial after a verdict for plaintiff for $1,239.70 by direction of the court. Reversed.

J. A. Green and Brooks & Hendrix, for appellants.

F. P. Olney, for respondent.

BUCK, J.

The county commissioners of Swift county brought this action to enforce an alleged liability upon the bond of the county treasurer, Thomas Knudson, executed by him as principal, and the other defendants herein as sureties thereon.

Knudson was elected treasurer of Swift county at the general election held therein in 1892, for the term of two years. The bond which he gave, and upon which this action was brought, bears date January 4, 1893, and was approved January 11, the same year. In the complaint it is alleged that Knudson, as such treasurer, between the 2d day of January, 1893, and the 27th day of November, 1894, received various sums of money, amounting to about $1,339.58, in taxes levied in said county and from other sources, and collected and received by him as such treasurer during said term, and that he fraudulently during said term, in breach of his trust, converted and appropriated to his own use said money, and that he failed to pay over the same at the time and in the manner prescribed by law. Upon the 27th day of November, 1894, Knudson resigned his office as such treasurer, and one J. F. Uhl was duly appointed to fill the unexpired term, and on the 6th of November, 1894, Uhl was duly elected to said office for a term of two years.

The defendant's sureties admitted the execution of the bond; otherwise the allegations of the answer are substantially a general denial. Knudson did not answer. The trial was to a jury, and at the close of the testimony the defendants requested the court to instruct the jury to find a verdict for the defendants, which request was refused and duly excepted to. The court then charged the jury that,

"From the evidence introduced and the law as applied to that evidence, the court considers it its duty to direct you what verdict to find, and the court directs you to find a verdict in favor of the plaintiff, the board of county commissioners, for the sum of $1,239.70,"

which charge the defendants excepted to. The jury rendered a verdict as directed.

A county treasurer is required by statute to give two bonds to the state: One under G. S. 1894, § 723, which provides that the treasurer shall faithfully execute the duties of his office, and shall keep and pay over according to law all moneys which come into his hands for state, county, township, school, road, bridge, poor, town and all other purposes. The other bond is given under section 3997 of said statutes, which provides that the county treasurer, before receiving money on account of sale of school and public lands, must execute another or special bond for the honest and faithful discharge of his trust, and for the faithful payment and accounting to the state treasurer, or other person entitled to receive the same, for all moneys received by such county treasurer. And, under section 4001, all moneys so received by the county treasurer shall be held at all times subject to the order and direction of the state treasurer, for the benefit of the funds to which such moneys, respectively, belong; and during the months of March, June, and October of each year, and at such other times as he may be requested so to do by the state treasurer, he shall pay into the state treasury all moneys received on account of such funds since the last payment he may have made.

It is to be observed that the provisions of these bonds are different, and hence the obligations of the sureties are not the same. Nor is it intended that one set of sureties shall be bound for the defalcation of the funds provided for in the other bond. And while the board of county commissioners can bring suit upon the general bond of the treasurer given pursuant to said section 723, in case of a default in its conditions, it would not be a proper party to begin an action upon a bond given under section 3997.

The bond herein sued upon is the general bond given under said section 723. This court held in State v. Young, 23 Minn. 551, and Board v. Tower, 28 Minn. 45, 8 N. W. 907, that a county treasurer's general bond does not cover moneys coming into his hands on account of sales of school and university lands, and that the sureties on such general bond of a county treasurer are not liable for deficiencies or failure to pay over money collected on university or school lands, and that for such matters the sureties on his special bond are the ones liable. What right, then, has Swift county to volunteer its services, and bring an action for the benefit of the state, without its request, against the sureties upon this general bond, when the state is authorized, as the proper party, to sue upon its special bond executed by a different set of sureties, and for an entirely different fund? Money received from the sale of public lands belongs to the state, not to the county. The board of county commissioners have no control over such fund, and cannot direct the treasurer to pay it to any particular person, officer or body, and hence such board has no right to demand its payment or sue for its recovery.

In the case of State v. Young, supra, this court, speaking through Justice Mitchell, said, at page 562:

"The management of school and university lands is, by G. S. c. 38, intrusted to a separate department of the state government, the head of which is called `commissioner of the land office.' And although certain county officers, as, for example, county treasurers, are brought into connection with the land department, and, under certain circumstances, are required to perform certain duties, still such duties are entirely distinct from the ordinary duties of the offices which they hold.

"The office of county treasurer, and the office of collector of purchase money of school and university lands, although filled by the same person, are in reality two distinct offices. Although the same person must perform the duties of both offices, he is required to give separate bonds. The duties in each case are entirely distinct. The conditions of the two bonds are different. For the special duties imposed upon a county treasurer by G. S. c. 38, only his sureties on the separate bond required by section 39 are answerable. This bond is in no sense merely cumulative, or intended as additional security. Therefore the sureties on the general bond of a county treasurer are not liable for his failure to pay over moneys collected by him on account of school and university lands, under the provisions of G. S. c. 38. State v. Johnson, 55 Mo. 80."

If Knudson was a...