Boone Cnty. v. Jones

• Decision Date: 23 October 1879
• Citation: 2 N.W. 987,54 Iowa 699
• Parties: BOONE COUNTY, APPELLEE, v. GEORGE E. JONES AND OTHERS, APPELLANTS.
• Court: Iowa Supreme Court

54 Iowa 699

2 N.W. 987

BOONE COUNTY, APPELLEE,

v.GEORGE E. JONES AND OTHERS, APPELLANTS.

Supreme Court of Iowa.

Filed October 23, 1879.

Appeal from Greene circuit court.

At the general election in the year 1873 the defendant George E. Jones was elected county treasurer of Boone county for two years from January, 1874. He served the full term of the office to which he was elected. At the general election in 1875 one J. W. Snell was elected to said office, for the term commencing in January, 1876. After the said election, and before the first Monday in January, 1876, the said Snell departed this life without having qualified or in any manner entered upon the duties of said office. A vacancy was thereby created, and on the third day of January, 1876, the defendant Jones executed a bond to said county as a holding-over officer, and otherwise qualified and continued as the incumbent of said office until the expiration of the term on the first Monday in January, 1878. At the general election in 1876 the electors of said county again voted and balloted for candidates to fill the vacancy in said office for the residue of said term to which said Snell had been elected, and the said George E. Jones was again declared duly elected; and thereafter, and on the seventeenth day of November, 1876, the said Jones and the other defendants, as his sureties, executed a treasurer's bond to said county, conditioned as follows:

“The condition of the above obligation is this: Whereas, the said George E. Jones was, on the first Monday in January, A. D. 1876, the incumbent of the office of treasurer of Boone county, Iowa; and, whereas, J. W. Snell, who had been elected to said office at the general election in Boone county, Iowa, held in October, 1875, failed to qualify in said office; and, whereas, said George E. Jones did, on the ______ day of January, 1876, appear before the board of supervisors of said county and duly qualified in said office for the term of two years from and after the first Monday of January, 1876, by giving a bond, approved by said board, and taking and subscribing the oath of office, which bond still remains on file in the office of the auditor of said county, and under said qualification he is still acting in said office.

And, whereas, since then doubts have arisen as to the length of term to be filled by said Jones so holding over; and, whereas, at the general election held in Boone county, Iowa, in November, 1876, 3,461 votes were cast for the office of treasurer said county, to fill a vacancy, and said George E. Jones received a majority of 89 votes of all the votes so cast at said election, and said Jones desiring to put said matter at rest desires to qualify under said election, but does the same and the same is allowed and permitted by said board, with the distinct understanding that this qualification shall in no way affect the former qualification, and this bond shall in no way affect his former bond, and shall not release or discharge any of the sureties thereon: Now, if the said George E. Jones shall render a true account of his office and of the doings therein, to the proper authorities, when required thereby or by law, and shall promptly pay to the person or officer entitled thereto all money which may come into his hands by virtue of his said office, and shall faithfully account for all balances of money remaining in his hands at the termination of his office, and shall hereinafter exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, papers and securities, or other property appertaining to his said office, and deliver them to his successor, or to any person authorized to receive the same, and if he shall faithfully and impartially, without fear, fraud or oppression, discharge all other duties now or hereinafter required of his office by law, then this bond to be void, otherwise in full force.

Signed the seventeenth day of November, 1876.”

This action was brought upon this bond, and it was claimed that upon his final settlement with the county in January, 1878, the said Jones proved to be a defaulter in a large amount of money, for which judgment was prayed against him and the other defendants, as his sureties. The answers of the defendants, in substance, denied that Jones was a defaulter in any amount, and denied the validity of said election and bond; averred that said bond was never approved by the board of supervisors of said county, and denied that Jones ever held the office under said pretended election, and averred that he held the full term for which said Snell was elected as a holding-over officer, and said Jones averred that there were two other actions pending against him for the same cause of action embraced in this suit. There was a trial by jury and a verdict and judgment for the plaintiff for $13,598. Defendants appeal.

Maxwell & Witter and Kidder & Crooks, for appellants.

Webb & Dyer and Philips, Goode & Philips, for appellee.

ROTHROCK, J.

1. The action is important, both as to the amount in controversy and as to the principle involved. The questions contained in the record have been ably presented, both by printed and oral arguments, and we believe we have given to the case that thorough and painstaking consideration which it seems to demand. When the bond was offered in evidence objection was made thereto upon the grounds that it was not a valid instrument, because the election therein recited was void, not being authorized by law, and because there was no vacancy at that time existiug, and because it appeared from the pleadings that there was, at the time this bond was executed, another legal bond of the defendant Jones, under which he performed the duties of said office, and upon which alone he is liable.

It was further objected that said bond had never been approved as provided by law, and could not be approved because there was no certificate attached to the bond showing that Jones had accounted for or produced the funds of the county before that time under his control. These objections were overruled. The same questions were presented in certain instructions which the defendants asked to be given to the jury, and these instructions were refused. It appears in evidence that the bond was filed and recorded in the auditor's office, and a day or two after the bond was filed a certificate of election, approved by the chairman of the board of supervisors, was delivered to said Jones. The bond was indorsed, “Approved November 18, 1876.” These words were in the handwriting of the chairman of the board. There was no other record made of the approval of the bond.

We think it is not material to inquire whether the defendant Jones was entitled to hold over for the full term for which Snell was elected, nor to determine whether his election to fill a vacancy was regular and authorized by law. We are united in the opinion that Jones and his sureties are concluded by the recitals in this bond, and cannot be heard to dispute the regularity of the election. Under the recitals of this bond he was, as between the parties thereto, de facto the treasurer of this county. If public officers are allowed to escape the consequences of malfeasance in office after the full term of their election has expired, because of an alleged illegal election, it would be a bolder and more glaring instance of allowing a man to take advantage of his own wrong than any case that has come under our observation.

In regard to the want of a record of the approval of the bond, and the want of such certificate indorsed thereon, as the statute requires, we think the defendants are also concluded by executing and delivering the bond to the board. These provisions of the statute are directory merely. They require certain duties to be performed by the officers therein named, and their failure to perform them in no manner affects the officer or his sureties. Laches are not imputable to the public authorities, and the failure of the supervisors to perform their duties, in matters not inhering in the bond, will not discharge the sureties. United States v. Kirkpatrick, 9 Wheaton, 720;Same v. Vanzandt, 11 Wheaton, 184;Dox v. Postmaster General, 1 Pet. 318. Their liability is not made to depend upon these acts of the officers of the county. The fact that Jones had qualified and given bond as an officer holding over can make no difference. He became a candidate at the election to fill the vacancy, accepted its results, and gave his bond and accepted his certificate of election, and he and his sureties should not be allowed to say that he was holding the office by another tenure and under another bond. But, without further elaboration of this question, we think we are required to hold this bond valid by reason of the statute. Subdivision 10, of § 303 of the Code provides that the board of...