Perry v. Woodberry

• Decision Date: 22 March 1890
• Citation: 7 So. 483,26 Fla. 84
• Court: Florida Supreme Court
• Parties: PRRRY, GOVERNOR v. WOODBERRY.

7 So. 483

26 Fla. 84

PRRRY, GOVERNOR v. WOODBERRY.

Florida Supreme Court

March 22, 1890

Appeal from circuit court, Gadsden county; DAVID S. WALKER, Judge.

Syllabus by the Court

SYLLABUS

1. The act of February 27, 1877, (McClel. Dig. p. 323, s 6,) by which the county treasurers of the several counties were 'constituted the treasurers of the school funds in their respective counties,' did not create a new county office of treasurer of the school funds, to be filled by whomsoever might be county treasurer, but it transferred to the office of county treasurer the duties and responsibilities of the custody of the school funds of the county.

2. The act of February 18, 1873, (Id. p. 323, s 5,) provided that county treasurers should be required to give bonds to the governor in a sum to be fixed by the county commissioner, and to be in no county less than double the amount of money that might at any one time come into the treasurer's hands, and a treasurer's bond executed under it after the approval of the act of February 27, 1877 by which county treasurers were constituted treasurers of the school funds, (Id. s 6,) became a security as well for the proper performance of his duties in connection with school funds as with any other funds of which he might be the legal custodian under former or other legislation.

3. It was the duty of the county commissioners, when fixing the amount of the official bond to be given by a county treasurer, after the approval of the act making him treasurer of the school funds, to consider the effect of that act with reference to the amount of money which might at any one time come into his hands.

4. An action on the official bond of a county treasurer, payable to the governor, held to be properly brought in the name of the governor for the use of the board of public instruction of the county to recover for school moneys as to which the county treasurer failed to properly account, and that the action should not have been brought for the use of the successor of the delinquent county treasurer.

5. The fact that certain officers, when fixing the amount of the penalty of an official bond, failed to consider a certain matter which, had they considered it, might have caused them to fix a larger penalty than they did, is not a defense to an action against a surety on the bond.

6. A statement in a plea to an action on a complete written contract that the contract was not intended to cover the moneys sued for, and that the defendant, a surety, signed the contract with that understanding and belief, is not the averment of a fact, but of a conclusion of law, and is demurrable.

7. In an action instituted in the name of the governor for the use of a board of public instruction on the official bond of a county treaurer to recover for school moneys as to which he was in default, the bond having been executed April 14, 1884 and being conditioned that the county treasurer should render a faithful account of all moneys that might come into his possession or custody by virtue of his said office, and faithfully perform all the duties of the office as prescribed by law, a plea was interposed by a surety to the effect that the county commissoners did not in fixing the amount of the bond take into consideration any school moneys that might be paid to the principal as county treasurer of the county, but fixed the amount to cover moneys only which were controlled by the county commissioners; and that said bond was not intended to cover any school moneys which were subject to the control of the board of public instruction of the county, and that the surety signed the bond with that understanding and belief. Held, that the plea is demurrable for the reason that the result of the neglect of the commissioners to consider the school moneys could be nothing more than to make the amount of the bond less than it should have been, and this does not harm the surety; and the remainder of the plea is not the averment of a fact, but is nothing more than the assertion of a conclusion of law or a pleader's construction of a complete written contract, which contract is the sole repository of the language of the parties to it as to their meaning and intentions, which language, viewed in the light of the law controlling the subject of the contract at the time of its execution, shows that school moneys subject to the control of the board of public instruction were within the intention of the parties to the bond, and must control the courts as to the meaning, intention, and understanding of the parties.

COUNSEL

William A. Blount, for appellant.

John W Malone, for appellee.

OPINION

RANEY C.J.

This is an action on the official bond of A. W. Smith, as county treasurer of Gadsden county, executed by him and sureties thereon, of whom appellee was one, April 14, 1884. The bond, which was approved by the county commissioners, binds the parties 'unto the governor of he state of Florida,' and its condition, including the recital, is that 'whereas, the said Smith is about to be commissioned, by the governor, county treasurer in and for the county aforesaid, to hold his office for the term of two years, now, if Smith shall render a correct and faithful account of all moneys that may come into his possession or custody by virtue of the office, and faithfully perform all the duties thereof as prescribed by law, the bond shall be void, but otherwise to remain of full force and effect.'

The action, as originally instituted in the year 1886, was in the name of 'the Governor of the State of Florida, for the use of the Board of Public Instruction of Gadsden County.' Subsequently, the proceedings were amended by making E. A. Perry, governor, etc., for the use, etc., the plaintiff. Polk v. Plummer, 2 Humph. 500; Stephens v. Crawford, 1 Ga. 574; Tevis v. Randall, 6 Cal. 632.

The original declaration alleges that Smith was removed from office by the governor in the year A. D. 1886, and that while he was such treasurer he did not render a correct account of and pay over all moneys which came into his possession or custody by virtue of his said office, nor did he faithfully perform the duties of his office but, on the contrary, has failed and refused, and still fails and refuses, to account for and to pay over to the board of public instruction of Gadsden county the sum of $1,082.84 1/3 of the property of the said board which came into his possession by virtue of the office, and which by law was and is payable to such board.

The plaintiff demurred to the fourth plea as bad in substance, and, the demurrer having been overruled, he suffered final judgment to be entered in the case against him, from which judgment he has taken an appeal.

This plea, upon which the result of the litigation as it stands before us depends to a certain extent, is, in substance, as follows: The county commissioners of Gadsden county did not, in fixing the amount of the bond, take into consideration any school moneys that might be paid to Smith, as county treasurer of the county, but fixed the amount of the bond to cover moneys only which were controlled by said county commissioners; and said bond was not intended to cover any school moneys which were subject to the control of the board of public instruction, and the defendant signed the bond with that understanding and belief.

The statute of February 27, 1877, (McClel. Dig. p. 323, § 6,) enacted that the county treasurers of the several counties in this state shall be, and the same are hereby, constituted the treasurers of the school funds in their respective counties.

Legislation approved February 18, 1873, (Id. p. 323, § 5,) provided that county treasurers should be required to give bonds to the governor in a sum to be fixed by the county commissioners, and to be in no county less than double the amount of money that might at any one time come into the treasurer's hands, and that the sureties should be required to justify. A previous act of 1872 (section 5 of chapter 1883) had provided that the amount of the bond should be fixed by the county commissioners, and never be less than $10,000. The provision of chapter 1722, approved June 22, 1869, referred to by counsel for appellant, and requiring that 'every school officer' shall, before receiving any moneys or property of any kind for safe-keeping or disbursement, give bonds, with two good sureties, for double the amount that would be liable to fall in his hands at any one time, the bond to be fixed by the board of public instruction, and approved by the county commissioners, was not applicable to the county treasurer prior to the act of 1877, nor did it become so upon the passage of the latter act.

The legislation of 1877 did not repeal that of February, 1873 but one effect of it was to make it the duty of the county commissioners, when fixing the amount of a treasurer's bond, to consider its effect with reference to the amount of money which might at any one time come into that officer's hands, and to act accordingly. It was also the effect of these two statutes, considered together, that a treasurer's bond, executed like this one after the act of 1877, should be a security as well for the proper performance of his duties in connection with school funds as with any other funds of which he might be the legal custodian under former or other legislation. The act of 1877 did not create a new office of treasurer of the school funds, to be filled by whomsoever might be county treasurer, nor was it by virtue of any such distinct office that he was entitled to receive school funds; but it transferred and imposed upon the office of county treasurer, as then constituted by law, the duties and responsibilities of the custody of the school funds of the county,...