Cawley v. the People

• Decision Date: 18 May 1880
• Citation: 95 Ill. 249,1880 WL 10032
• Parties: BRYANT CAWLEY et al.v.THE PEOPLE, for the use of Woodford County.
• Court: Illinois Supreme Court

95 Ill. 249

1880 WL 10032 (Ill.)

BRYANT CAWLEY et al.

v.THE PEOPLE, for the use of Woodford County.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Woodford county; the Hon. N. M. LAWS, Judge, presiding.

Messrs. CHITTY, CASSELL & GIBSON, for the appellants.

Messrs. SHAW & EDWARDS, and Mr. S. S. PAGE, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

At the election in November, 1877, Whitaker was elected treasurer of Woodford county. He thereupon executed and filed the bond in suit in this case. He had been elected and qualified and served in the office for the two preceding terms, and was consequently his own successor. Thirteen of his sureties signed the bond before it was filed with the county clerk, and four of them about a month later. His oath of office bears date the 28th day of November, 1877, but the record discloses no file-mark, so far as we have been able to find.

His bond was dated on the 3d day of December, 1877, and was filed on the 5th day of that month. And it is assumed in argument that the oath was filed on the same day. His commission bore date on the 1st day of December, 1877. The first meeting of the county board, after his election, was on the 8th day of January, 1878. And he on that day filed a report, as required by the statute, extending from the 1st of September, 1877, to the 3d of the following December, the time fixed for the term of his office to begin. On the day after, it was approved by the board.

When the board met, on the 8th of January, 1878, the question of the sufficiency of the security came before it on the motion to approve the bond. The question was referred to a committee to examine and report. They asked further time, and it was extended until the 22d, to which time the board adjourned. When the board again met, the committee reported the security was satisfactory. When the committee came to investigate the ability of the sureties they were unwilling to report recommending the approval of the bond with the names of the thirteen sureties that were then signed to it, but handed it to Whitaker to procure additional names to it, when he procured four additional sureties, whose names were inserted in the body of the bond and signed to it, with seals annexed. The bond was then returned to the committee, and they reported it to the board and it was approved.

These are the material facts as to the execution, delivery and approval of this bond, and on them a portion of the principal legal questions arise. A trial was had, when the jury found a verdict in favor of the people, and after overruling a motion for a new trial, judgment was rendered on the verdict.

The propositions for determination are presented by pleas, the evidence and instructions. But as the same questions are presented in each of these modes it is unnecessary to consider them in detail, and as presented by each of the modes of raising the objections. Nor do we regard it as at all necessary to discuss all of the objections urged. We shall, however, examine such as we regard of sufficient gravity to demand consideration. It is urged that as Whitaker did not file his oath and bond on the first Monday in December, 1877, his office became vacant, and he was unauthorized to file his bond and oath two days later and enter upon the discharge of the duties of the office, and his bond was void, and the thirteen sureties who first signed the bond never became liable thereon, and there was no right of recovery against them.

We are referred to the 8th section of article 10 of the constitution, which provides that county officers shall enter upon the duties of their respective offices on the first Monday of December following their election, and the treasurer shall hold his office for two years, and until his successor shall be elected and qualified. The 1st and 2d sections of the chapter entitled “County Treasurers,” provide for his taking the oath of office and executing bond, which bond shall be filed with the county clerk on or before the first Monday of December after such election. The 125th section of the chapter entitled ““Elections,” provides that every elective office shall become vacant on the happening of several contingencies, among which is this: “On his refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit or file such oath or bond within the time prescribed by law.”

It is claimed that the language of these provisions is mandatory, and the word “shall” is used in its imperative sense. This question was before us in the case of Chicago v. Gage, post, 593, in an action on the bond of a city treasurer, when this defence was interposed by sureties, as in this case. The charter under which the treasurer was elected and the bond was executed, provided the bond should be deposited with the city clerk within fifteen days after notice of his election, and if not filed within that time “the person so in default should be deemed to have refused said office, and the same should be filled by appointment, as in other cases.” The treasurer elect failed to file his bond within the prescribed time, but did some days afterwards, and entered into the performance of the duties of the office, and became a defaulter.

It was held these provisions in respect to the time within which the official bonds were required to be filed were not mandatory, but merely directory. The municipal authorities had power, in their discretion, to declare a vacancy, or to waive the default as to the mere time of filing bond and to accept and approve it when afterwards filed. The mere default in that regard would not, of itself, operate to vacate the office. It was held to be entirely competent for the city council to waive the default as to the time when it should have been filed, which was but a ground of forfeiture, and not a forfeiture of itself,-- and so far as concerned the sureties, the apparent authority with which they had clothed their principal to make use of and deliver it as his official bond by signing and sealing the same and leaving it with him, was a continuing authority until some step should be taken by them towards its revocation; that they were liable on the bond to the same extent as if it had been filed within the time limited by the charter.

That case is conclusive of this question. They are, in this respect, alike in all of their essential features. The charter, in its requirements, was as explicit and positive as the constitution and statutes. It is true, that was under a city charter and related to a city treasurer, whilst this case arises under the constitution and the statutes. But that can not matter, as the same reasons for the construction there given apply with equal force in this case. No well defined or reasonable distinction can be taken, as the same rules of interpretation apply to both cases. This defence can not, therefore, be allowed.

It is claimed that the 4th section of article 4 of the constitution provides that any person who has been a collector or holder of public moneys and shall not have accounted for and paid them over according to law, shall be ineligible to any office of profit or trust, and that as Whitaker was a defaulter, as a holder of public moneys, he was ineligible to the office, and never constitutionally in office, and his bond was void. This provision presupposes that the default shall be known and fixed. And the default could only be fixed by judicial or other legal authority. It may be that if such a defaulter were to be elected or appointed, and enter into the office, he could be ousted by quo warranto. But so long as he holds the office his acts would be valid and binding. If this were not so, all receipts and vouchers given by him as treasurer would be void, after he became defaulter, whether the fact was known or not at the time. The framers of that instrument never, could have intended such results. Until the fact was properly ascertained, he, under his commission and oath of office, held the indicia of legal title to his office, and his acts were binding, and his sureties were liable for them until his title might be impeached by appropriate proceedings.

It is claimed that Whitaker was and had been a defaulter, and that the fact was known to the board and concealed from the sureties, and was a fraud upon them, and that fact released them from all liability. There is nothing to show that, upon any of his reports or settlements he was a defaulter, and that is the only means by which the board or its members could have known the fact unless he had communicated it to them. It nowhere appears that they acquired the knowledge averred in either of these modes. But had the fact appeared from his settlements, that would have been as apparent to the sureties as to the members of the board. But a complete answer is, that the sureties made no inquiry of the board, or its members, in regard to whether Whitaker was a defaulter. The board, or any of its members, were not their agents, nor did the law or morals require the members of the board to seek the sureties to give them such information. Nor could the neglect of any member to give the information, even if they had possessed it, have been a fraud by the board. It only acts as a body and not as individuals. The law has conferred power and imposed duties upon the board only as an aggregate body. Whatever power the board may exercise, is as a body. It surely can not be that a member of the board can bind the county, unless specially authorized, nor can he, by any individual act of his, release persons from their obligations to the county. Nor could he thus perpetrate such a fraud as is claimed in this case, so as to release these sureties from liabilities they assumed by signing this bond. Whatever individual liability they might thus incur, or whatever wrong they might perpetrate, it could not operate to...