Board of Educ. of City of Alva v. Fulkerson
| Decision Date | 18 March 1919 |
| Docket Number | 8799. |
| Parties | BOARD OF EDUCATION OF CITY OF ALVA v. FULKERSON et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
To entitle the plaintiff to recover in an action against the sureties upon the official bond of a public officer, it is necessary for the plaintiff to allege and to show in his petition defaults which are covered by and are included within the conditions of the bond sued on.
F. was elected treasurer of a school district in April, 1908, and gave a bond with sureties, to account for funds coming into his hands during his term of office, and in April, 1909, at the next election provided by law, was re-elected to the same office, and entered upon the duties thereof on the 7th day of May thereafter, and continued in office, but without giving a new bond. Held, that the sureties on the bond given upon his first election are not liable for defaults occurring after the commencement of his second term.
Error from District Court, Woods County; W. C. Crow, Judge.
Action by the Board of Education of the City of Alva against M. M Fulkerson and others. Judgment for defendants, and plaintiff brings error. Affirmed.
L. T Wilson, C. H. Mauntel, and E. W. Snoddy, all of Alva, for plaintiff in error.
Houston & Brooks, of Wichita, Kan., and Arthur G. Sutton, of Alva for defendants in error.
This is an action against the sureties on the official bond of Mr. M. M. Fulkerson, given by him as treasurer of school district No. 1 of Woods county, Okl. The cause was tried to a jury, resulting in a judgment for the defendants, from which the plaintiff has appealed to this court.
The evidence in the case shows that Fulkerson was elected treasurer on the 7th day of April, 1908, and executed the bond herein sued on on the 28th day of said month to the board of education of the city of Alva. Pursuant to the statutes he was re-elected in April, 1909. The misappropriations for which it is sought to hold his sureties liable occurred May 27, October 21, and December 1, 1909, which dates were subsequent to his second election.
The condition of the bond is that the principal (M. M. Fulkerson) "shall promptly pay and deliver to proper person or officer designated by law, all money which may come into his hands by virtue of said office, and shall truly account for all the balances of money or property remaining in his official hands at the expiration of his term of office; and shall exercise all due care in the preservation and lawful disposal of money, papers, books and securities which shall come into his possession as such officer, and deliver same to his lawful successor in office, or to any person legally authorized to receive same, then this bond and obligation to be void; otherwise to be and remain in full force and effect."
The sureties contend that they are only liable under their bond for money received and misappropriated by their principal during his first term of office, and that said term expired prior to the defalcations. The general election law in force at the time of Fulkerson's second election provided for the holding of elections in all cities of the first class on the first Tuesday in April, 1909, and each two years thereafter, at which there should be elected, among others, "one treasurer of the city school board." The law further provided that the term of the officials elected thereunder should begin the first Monday in May, following their election. Article 2, c. 16, Session Laws 1909.
The general rule is that the duration of a surety's liability on the official bond of a public officer is coextensive with such officer's tenure of office, and ceases when the term expires by operation of law. Aultman-Taylor Mach. Co. v. Burchett, Sheriff, 15 Okl. 490, 83 P. 719; United States v. Nicholl, 12 Wheat. 505, 6 L.Ed. 709; A. & E. Enc. Law, vol. 25, p. 725.
And it was held by this court in Aultman-Taylor Mach. Co. v. Burchett, Sheriff, et al., supra, that before sureties on an official bond will be held liable the plaintiff in the action must allege and prove defaults covered by and included in the conditions of the bond sued on. There are many cases in which it is held that the liability of the sureties is limited to the defaults occurring during the term for which the officer was elected or appointed, even though the bond was general in its terms and did not expressly so provide, but where the term of the bond expressly provides for a longer term the liability of the sureties is commensurate therewith. See note in 103 Am. St. Rep. 924, to Blades v. Dewey, 136 N.C. 176, 48 S.E. 627, 1 Ann. Cas. 379. But these distinctions are not necessary to be noticed or considered in the instant case, for the reason that the bond herein involved, by its terms, provided that the treasurer should account for "all the balances of money or property remaining in his official hands at the expiration of his term of office."
It is conceded by counsel for plaintiff that the general rule is that sureties are only liable for misappropriations made by their principal during his term of office, but it is insisted that said rule is not applicable on account of the provisions of section 10, art. 23, of our Constitution, the pertinent language of which section is as follows:
"Nor shall the term of any public official be extended beyond the period for which he was elected or appointed: Provided, that all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified."
We understand plaintiff's position to be that under the above provision Fulkerson's first term had not expired at the time of the defalcations charged in the petition, because of the fact that he had not filed a new bond.
A few cases, like Baker City v. Murphy, 30 Or. 405, 42 P. 133, 35 L. R. A. 88, make an exception to the general rule that the liability of the sureties does not extend beyond the term for which they undertook to be responsible for their principal where the principal merely holds over beyond his term by virtue of his original election and qualification after the expiration of the statutory period for which he was elected, but before his successor is elected and qualified. These cases are collected in a note to the above case in 35 L. R. A. p. 88. Practically every one of these cases, however, concede that sureties upon official bonds are presumed to know the duration of the term of the principal's office and to have contracted to bind themselves only for liabilities arising during said term, and, as stated in Baker City v. Murphy, supra:
"It is only upon the application of the rule to statutory enactments governing the tenure of office that the authorities appear to part company."
It appears from an examination of the Murphy Case that one S. F. Murphy was city treasurer of the town of Baker City, and was elected for a term expiring November 6, 1893, but by the law in force in Oregon it was provided that he should hold his office "until his successor is elected and qualified," and the sureties were held liable on the distinct ground that Murphy's term of office did not end on the 6th day of November, 1893, as his successor had not been elected and qualified, but the Supreme Court of Oregon held that Murphy, the principal, was merely holding over and had not commenced a new term. That court recognized a clear distinction in the case before it and a case where an officer is re-elected or reappointed to the same office and commences a new term. This clearly appears from the following language from the opinion of the court by Justice Wolverton:
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