Old v. Commonwealth

• Decision Date: 16 June 1927
• Citation: 138 S.E. 485
• Parties: OLD et al. v. COMMONWEALTH, for Benefit of PRINCESS ANNE COUNTY.
• Court: Virginia Supreme Court

138 S.E. 485

OLD et al.

v.COMMONWEALTH, for Benefit of PRINCESS ANNE COUNTY.

Supreme Court of Appeals of Virginia.

June 16, 1927.

Error to Circuit Court, Princess Anne County.

Proceeding by notice of motion by the Commonwealth, suing for the benefit of Princess Anne County, against J. E. Old and another.

Judgment for plaintiff, and defendants bring error.Reversed and remanded.

A. Johnston Ackiss and Hughes, Vandevanter & Eggleston, all of Norfolk, for plaintiffs in error.

Edwin J. Smith, of Norfolk, for defendant in error.

CAMPBELL, J.This is a proceeding by notice of motion instituted by the commonwealth of Virginia, suing for the benefit of Princess Anne county, against the principal and sureties of a bond executed for the faithful performance of the duties of R. L. Smith as supervisor for the Seaboard magisterial district, to recover the sum of $2,500, the penalty of the bond.

The facts of the case are not controverted, and are set forth in the notice of motion as follows: At the general election held on November 4, 1919, R. L. Smith was elected supervisor for the Seaboard magisterial district for the term of office beginning on January 1, 1920.On December 22, 1919, R. L. Smith, as principal, and J. E. Old and John C. Wood, as sureties, executed a bond in the sum of $2,500, payable to the commonwealth of Virginia, conditioned upon the faithful discharge by Smith "of the duties of his said office or trust as supervisor."The notice further alleges that Smith, during his term of office, received from the treasurer of the county, on warrants issued to him by the board of supervisors, the sum of $4,267.-97, to be expended by him for public road purposes.This sum of money Smith is alleged to have appropriated to his own use.

The failure of Smith to expend the money received for public road purposes and the appropriation thereof to his own use is alleged in the notice as such a breach of the conditions of the bond as entitles the county to recover against the sureties on the bond.

Plaintiffs in error filed their written demurrer to the notice of motion for judgment, in which it is alleged that the notice filed is not sufficient in law, and rely on the following grounds: (a) That the duties of Smith as a supervisor were fixed by law: (b) that these statutory duties did not include the duty of disbursing or handling county funds for public road purposes, or for any other purposes, and that, in receiving for disbursement the said funds, Smith was not acting within the scope of his official duties as supervisor; (e) that the notice of motion did not allege as a matter of law any breach by Smith of any official duty incumbent upon him as supervisor or the breach of any covenant in his official bond.

The trial court overruled the demurrer; there was a trial by jury which resulted in a verdict for the plaintiff in the sum of $2,-500, upon which the court entered judgment.

It is assigned as error that the trialcourt erred in not sustaining the demurrer to the notice of motion for judgment.The sole question for determination is: Did the alleged acts of Smith come within the scope of his official duties as a supervisor?

Section 111 of the Constitution provides that in each magisterial district there shall be elected by the qualified voters thereof one supervisor.The supervisors of the districts shall constitute the board of supervisors of the county, which shall meet at stated periods and at other times as often as may be necessary, lay the county and district levies, pass upon all claims against the county, and perform such duties as may be required by law.There are other duties prescribed in the various chapters dealing with roads, county officers, etc., but in general these duties may be classified as follows: The control, management, and jurisdiction of all county roads, bridges, landings, buildings; the auditing and settling of the accounts of the county and of the various county officers; the allowance of claims against the county and the issue of warrants therefor; the fixing and ordering of county levies; and the enactment of certain local rules and regulations in county government.

One who becomes a surety upon an official bond is presumed to execute the same with full knowledge of the duties to be performed by the principal.Generally, the official duties of an officer are fixed by law, and especially is this true of a supervisor who is a constitutional officer...