City of Grand Haven v. U.S. Fidelity & Guaranty Co.

• Decision Date: 19 July 1901
• Citation: 87 N.W. 104,128 Mich. 106
• Parties: CITY OF GRAND HAVEN v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Michigan Supreme Court

87 N.W. 104

128 Mich. 106

CITY OF GRAND HAVEN v. UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Michigan

July 19, 1901

Error to circuit court, Ottawa county; Philip Padgham, Judge.

Action by the city of Grand Haven against the United States Fidelity & Guaranty Company. From a judgment in favor of plaintiff defendant brings error. Reversed.

Bundy &amp Travis, for appellant.

Walter I. Lillie, for appellee.

LONG J.

This action is on the official bond, for the second term, of John Cook, city treasurer of the city of Grand Haven, which is incorporated under the general law of this state as a city of the fourth class. The case was referred under the statute, and comes up on the exceptions to the referee's conclusions of law, which exceptions were overruled by the court below. It appears that Cook was elected city treasurer of the city of Grand Haven at the charter election held in April, 1898. He qualified, giving bond with individual sureties, and entered upon the discharge of his duties, May 23, 1898. At the next annual election held in April, 1899, he was re-elected, and qualified on the 18th day of May, 1899, when the bond in suit was filed and accepted by the common council. The penalty of the bond is $25,000, with the defendant here as surety, which executed it at the city of Baltimore, Md., on May 11, 1899. Prior to the 18th day of May, 1899, Cook had abstracted from the city funds the sum of $1,706.35, and was at that time a defaulter to that amount,--a fact which was not known then to any one except himself. After that date he abstracted and converted to his own use from the city funds the further sum of $727.84. It is the claim of defendant that it is liable on the bond in suit for the latter amount only, while the plaintiff claims that it is liable for the full amount of the shortage, $2,476.10, and for which amount judgment was rendered by the circuit court. The bond in suit covers the period of time from May 18, 1899, the date on which it was filed and accepted by the common council, and does not relate back to April 10, 1899, as claimed by plaintiff. Grand Haven is a city of the fourth class, organized under chapter 88, Comp. Laws 1897, in which section 2993 provides: 'The mayor, city clerk, city treasurer, supervisors and constables shall hold their offices for the term of one year from the second Monday in April of the year when elected and until their successors are qualified and enter upon the duties of their office.' Mr. Cook had not qualified until his bond was accepted by the common council, and he could not enter upon the duties of his second term of office until then. Up to that time he was holding office by virtue of his first election. It is settled by numerous authorities under statutes similar to ours that the period between the election of a successor and the time he actually qualifies is as much a part of the prior time as the preceding period, and that, too, where a party is elected his own successor. Com. v. Hanley, 9 Pa. 515; Butler v. State, 20 Ind. 172; People v. Whitman, 10 Cal. 45; State v. Berg, 50 Ind. 500; Lynn v. City of Cumberland (Md.) 26 A. 1002; Kimberlin v. State (Ind. Sup.) 29 N.E. 773. It is also settled that where the statute or the constitution provides that an officer shall hold his office for a stated period, 'and until his successor is elected and qualified,' the sureties on his bond continue liable for his official acts after the expiration of the stated period, and until the election and qualification of his successor. It was expressly held in State v. Kurtzeborn, 78 Mo. 98, that where by statute a constable's term of office is two years, and until his successor is elected and qualified, the liability of the sureties on his bond will continue after the expiration of the two years, and until his successor is elected and qualified. This rule was expressly laid down in Paw Paw v. Eggleston, 25 Mich. 36; City of Detroit v. Weber, 29 Mich. 24. See, also, Placer Co v. Dickerson, 45 Cal. 12; Wheeling v. Black, 25 W.Va. 266; State v. Wells, 8 Nev. 108; Thompson v. State, 37 Miss. 518.

We think counsel is correct in saying that the bond in the present case does not relate back to the 10th day of April. The language of the bond is not retrospective. The condition is that if 'John Cook shall well and faithfully perform all the duties of said office of treasurer of the city of Grand Haven for and during the time for which he was elected, and shall account for and pay over all sums of...