Renfroe v. Colquitt

• Court: Georgia Supreme Court
• Writing for the Court: Blandford, Justice
• Citation: Renfroe v. Colquitt, 74 Ga. 618 (Ga. 1885)
• Decision Date: 28 February 1885
• Parties: Renfroe et al. vs. Colquitt, governor.

74 Ga. 618

Renfroe et al. vs. Colquitt, governor.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1885.

Officers. Treasurer. State. Principal and Surety. Bonds. Forfeitures. Before Judge Hammond. Fulton Superior Court. September Term, 1884.

Alfred H. Colquitt, governor, for the use of the state of Georgia, brought suit against J. W. Renfroe and the sureties on his bond as treasurer of the state. After alleging the election of Renfroe in 1877, the giving of the bond and bis taking charge of the office, the declaration alleged as follows:

"Petitioner states that said Renfroe, whilst holding said office and acting under said bond, to-wit, at, divers times between the first of April, 1877, and the 15th day of February, 1879, did collect, in his official capacity, from different banks and individuals in the city of Atlanta, in the said state, large sums of money as interest and commissions for the use, by said banks and others, of the public money of said state, in the hands of said Renfroe, as treasurer as aforesaid, and did, during the time last aforesaid, in violation of law and of the obligations of the said bond, appropriate the same in part to his own private use and benefit, and did allow one John W. Murphy and one Vincent R. Tommey to appropriate the same in part to their own private use and benefit respectively, the amount collected by the said Renfroe, as treasurer as aforesaid, during the period last aforesaid, as commissions and interest for the use of the money of the state as aforesaid, being the sum of seventeen thousand seven hundred and sixty-one dollars and forty-one cents, of which he unlawfully appropriated to himself, and used as his own, the sum of nine thousand eight hundred and fifty-five dollars and nineteen cents, and allowed the said Murphy and the said Tommey to appropriate the rest of said sum to their own private use and benefit respectively, the said Murphy receiving five thousand eight hundred and seventy-five dollars and nine cents, and the said Tommey three thousand and thirty-one dollars and twenty-one cents; and petitioner avers that the said Renfroe, treasurer as aforesaid, has failed to account, as by his said bond he had agreed to do, tor the said sum of $17,731.49, money collected as aforesaid, and which your petitioner avers was the money of the said state, or for any part thereof, but has wholly failed and refused to render any account thereof to said state, or to any of its authorized officers or agents. By reason whereof the said defendants have become liable to said state on their said bond, " etc.

The bond sued on contained the following provision:

" Whereas, the above bound J. W. Renfroe was, on the sixteenth day of January, 1877, elected by the general assembly of this state treasurer of Georgia; now, if the said J. W. Renfroe shall faithfully discharge, execute and perforin all and singular the duties of him required, and which may be required by the constitution and laws, and will faithfully account for and pay over all moneys that may be received of him from time to time by virtue of his office, and will safely deliver to his successor all books, moneys, vouchers, accounts and effects whatsoever belonging to his said office, then the above obligation shall be null and void; otherwise to remain of full force and virtue."

By amendment, a bill of particulars, showing dates and amounts of payments, and by whom and to whom paid, was set out. A further amendment was made, alleging that " the defendants are indebted the sum of thirty-five thousand dollars penalties, as now charged in said petition, " and then proceeding as follows:

" Plaintiff charges that the said defendants are liable for and indebted to the plaintiff the sum of five hundred dollars as a penalty for each and every time the said Renfroe received and used himself, or allowed others to receive and use, the funds of the state in hishands, or received interest or commissions thereon, as set forth in the former amendments to plaintiff\'s petition."

Defendants demurred to the declaration, on the ground, among others, that no cause of action was set out, either in the original declaration or in the amendments, and because the declaration showed on its face that Colquitt, governor, for the use of the state, had no title to or interest in the moneys sued for. The demurrer was overruled, and defendants excepted.

Henry Jackson; James K. Hines, for plaintiffs in error.

Clifford Anderson, attorney general; Geo. N. Lester, for defendant.

Blandford, Justice.

This was an action brought on the bond of the treasurer of this state to recover of the treasurer and his sureties certain sums of money, which it is alleged had been received by and paid to him and others for the use of certain moneys of the state, deposited by him in certain banks. To this declaration defendants demurred, because it set forth no cause of action against them. The declaration was amended by adding a further breach of the bond as to penalties incurred by the treasurer. The declaration, as amended, was then demurred to. The court overruled the demurrer, and defendants excepted, and bring the case here for review.

In order to ascertain whether there is any liability of the plaintiffs in error upon the bond, under the allegations in the declaration, it will be necessary to determine what was the law of this state, in 1877, when the bond sued on was made.

1. A careful research has failed to discover any judicial opinion as to the liability of the state treasurer for moneys received by him on account of deposits of state funds by the courts of this state up to this time. But we have alegislative declaration upon this subject, in a joint resolution passed by the general assembly of this state, which was approved December 8th, 1871, which resolution is as follows:

" Whereas, It has not been customary to require the state treasurer to pay into the treasury interest on deposits of state funds: be it

Resolved, That the treasurer of the state shall not be held liable for any such interest...."

This is not only an opinion of the liability of the state treasurer as to interest received by him by reason of de posits of state funds, as expressed in the preamble or title to the resolution, but it is a declaration as to the law, having the force of law, as contained in the resolution itself; and the courts will be bound to hold it to be law, unless it has been subsequently modified or repealed. Has it been repealed or modified by any subsequent legislation? On the 25th of February, 1876, the legislaure passed an act " To amend the laws of this state for the protection of the state treasury, and to define the obligation pertaining to the office of treasurer, and to prescribe his duties, and for other purposes." Acts of 1876, page 126; Code, §97, and paragraphs and sub-sections thereto. This act is a clear repeal of the joint resolution of 1871, and prescribes a new rule for the duties and liabilities of the state treasurer.

Paragraph 10 of Sec. 97 of the Code provides that the treasurer " may, with the approval of the governor, deposit all funds set apart for the purpose of education, or any other purpose, not required for immediate use, in any chartered bank of this state, subject to his draft as treasurer, and, with the governor, make such contract with said bank for the use of such funds as may be beneficial to the state."

The 11th paragraph to this section provides, "The treasurer shall not, under any circumstances, use himself, or allow others to use, the funds of the state in his hands, and for every violation of this section he is liable to the state for the sum of five hundred dollars as a penalty, or a forfeiture of his salary, if said forfeiture will pay the penalty incurred."

Section 97 (b) of the Code authorizes the governor to issue a fi.fa. instanter against the treasurer and his sureties for the amount due the state by the treasurer, with the penalties and costs.

Thus the law stood when Treasurer Renfroe assumed the duties and office of treasurer of this state. The declaration no where alleges that the treasurer used or misapplied any funds due the state on account of any deposits made by the treasurer, with the approval of the governor, or that he received from any bank any sum of money for the use of funds so deposited; but the plain conclusion is, from the declaration in this case, that the treasurer had himself received and allowed others to receive money from certain banks for the use of funds of the state deposited by him without the approval of the governor, and without any contract having been made by the governor and treasurer with the bank for the use of such funds. If this be so, it is a use of the funds of the state by the treasurer, and others by his permission, for which he incurred a penalty, under paragraph 11, of section 97, which was to be collected in the manner pointed out in section 97(b) of the Code. There is no provision in this act for the collection from the treasurer and his sureties on his bond of any money made by the treasurer, or others by his permission, on account of the use of the funds of the state; penalties are imposed for this use, and they may be collected in the manner pointed out by the statute. Can the money made or received by the treasurer, or allowed to be made by others by the use of the money of the state, be said to have come into his hands by virtue of his office? Money received by an officer, by virtue of his office, is money which that officer receives under the law of his office, not in violation of the law of his office; in right of his office, not in wrong. In this case, the money received or made was by a wrongful use of the funds of the state;there was no virtue in it; it was wrongful, and a penalty was imposed for such wrong. There is no allegation that the treasurer had failed to perform the duties of his office; that he had misapplied or used the funds of the state; and that he had...