Robertson v. Sanders
| Decision Date | 05 June 1923 |
| Docket Number | 23445 |
| Citation | 132 Miss. 848,96 So. 750 |
| Court | Mississippi Supreme Court |
| Parties | ROBERTSON, State Revenue Agent, v. SANDERS et al |
(Division A.). January 1, 1920
1. MUNICIPAL CORPORATIONS. Surety on bond of mayor-commissioner held liable only for misappropriation of funds coming into hands by virtue of his office.
Where the official bond of the mayor-commissioner of a municipality is conditioned for the faithful performance by such mayor of "all the duties of his said office," there is no liability of the surety on said bond for any funds received and misappropriated by such mayor-commissioner, except those coming into his hands by virtue of his said office, and this is true, even though, when said bond was executed, it was known to the surety company that such mayor-commissioner acting for the municipal clerk and tax-collector, would receive funds properly collectible by those officers.
2. MUNICIPAL CORPORATIONS. In action to hold surety liable on bond of mayor-commissioner it must be averred that funds misappropriated were received in official capacity.
In an action to hold the surety liable on such bond for funds received and misappropriated by a mayor-commissioner, where such officer is charged to have received a certain amount of municipal funds, part of which he received by virtue of his said office, and part by acting for the municipal clerk and tax-collector, no cause of action is stated, unless it is expressly averred that the funds or some part thereof received in his official capacity as mayor-commissioner were misappropriated and unaccounted for.
3. MUNICIPAL CORPORATIONS. Mayor-commissioner held liable for all funds from whatever source coming into his hands for which he fails to account.
In such case, although the surety is not liable for any funds received by such mayor-commissioner, except those coming into his hands by virtue of his said office, nevertheless such mayor-commissioner is personally liable for all funds from whatever source belonging to the municipality coming into his hands for which he fails to account, and such misappropriation is sufficiently charged, where it is averred that said mayor-commissioner received so much funds belonging to the municipality, and accounted for and paid over so much leaving a net shortage of so much, stating the amount.
HON. C L. LOMAX, Chancellor.
APPEAL from chancery court of Tallahatchie county, HON. C. L. LOMAX Chancellor.
Suit by Stokes V. Robertson, State Revenue Agent, on behalf of the City of Charleston, against J. W. Sanders and another. From an order sustaining separate demurrers to the bill, plaintiff appeals. Affirmed in part, and reversed in part.
Decree affirmed in part, and reversed in part and remanded.
E. D. Dinkins, for appellant.
If this were a suit upon the bond of a mayor of a city having the ordinary aldermanic form of government and the bill set up, as here, that he had assumed the office of city clerk and tax collector, and as such, was a defaulter, the demurrer of the surety, U. S. F. & G. Co., should probably have been sustained but for the allegation that the agent of the surety company knew in advance of the writing of the bond, that throughout the period covered by it, it was the purpose and plan of the mayor and commissioners, that the mayor should act as city clerk and tax collector, as that seems to be the general rule and is supported by the recent case of U. S. F. & G. Co. v. Yazoo City, 116 Miss. 358, and if the instant case was not clearly distinguishable, from it, it would not be presented for review here. But even if the city of Charleston was operating under the old aldermanic form of government, the bill would be good against demurrer because of the allegation of notice to and acquiescence in the handling of funds by the agent of the surety company, and of the charge that among the items collected were fines imposed by the mayor which it was his duty to handle, and of the item of four hundred dollars collected from Aetna Casualty & Indemnity Company, and, under the familiar rule that where a general demurrer is filed it will be overruled if any part of the bill is found to be good, and the charge that among the items collected and going to make up the shortage, were fines which it was the mayor's duty under the law to collect and account for, the bill should have been held to be good.
But I am more concerned about a ruling here which will point the distinction between the bond of a mayor of a city operating under the aldermanic form of government and one operating under the commission form as in the instant case. If no distinction exists between such bonds, then, as stated above, I think the demurrer of the U. S. F. & G. Company should have been sustained. I hope to be able not only to show a distinction but that the language of the statute will admit of no construction other than the surety company here is bound to the extent of the bond. It will be profitable to keep in mind that the old rule that individual sureties were favorites of the law has been reversed, and corporate sureties, for hire, are held to strict account. See 21 R. C. L. 1160.
The commission form of government under which the city of Charleston was operating is provided for in chapter 108 of the Laws of 1908 (section 6024 et seq., Hemingway's Code), and section 7 of that act (6031, Hemingway's Code), provided that each of the commissioners shall furnish surety bonds, and "The bond shall be for the faithful discharge of all the duties of the commissioners and against malfeasance in office." Section 6 of the Act (6029, Hemingway's Code), confers on the commissioners the power to appoint all necessary subordinate officers and subjects such officers to their control, and section 11 (6035, Hemingway's Code), provides that the work shall be divided into departments. The bill alleges that Sanders, with the consent of the commissioners, acted as clerk and tax collector and took the salaries provided for the nominal clerks, and this, with the exception of his taking the salaries of the nominal clerks, was clearly within the competency of the commissioners, and upon this view the surety can be bound as the bond, without reference to its securing against malfeasance, stood as security for all such things as the mayor, as one of the commissioners, was authorized, or was permitted by the commission to do. But, as the bond must be read as securing against malfeasance, it is of no moment whether he was personally authorized to collect taxes and discharge the duties of clerk or not. If authorized to do either, the surety is bound without regard to the provision against malfeasance, and if not so authorized he was guilty of malfeasance, and the surety must answer. Harrell v. Gloster, 77 Miss. 793. For definitions of "Malfeasance." see: Webster: "The doing of an act which a person ought not to do; evil conduct; illegal deed." Words & Phrases (2 Ed.), 200; State v. McClellan, 85 S.W. 267, 113 Tenn. 616; 3 Ann. Cas. 992, 25 Cyc. 1666.
The action of the court in sustaining both demurrers should be reversed. If Sanders is shown to be debtor to the city, however imperfectly or awkwardly the obligation may be alleged, he should be required to answer, and there are three sufficient reasons for holding the surety liable, viz: (1) That even tho the bond be technically insufficient to bind the surety, the knowledge and acquiescence on the part of the agent of the special duties to be performed and the manner in which they were to be performed, rendered the obligation binding without reference to the special provision of the statute. (2) That the act of 1908 so enlarges the duties of the mayor-commissioner, that a bond with the ordinary conditions should be held to cover his every act done with the knowledge, or consent, of the commission. (3) That the bond standing as security against malfeasance, must be held to cover every act of the mayor within, or without, his prescribed duties, which tends to render him debtor to the city.
Wm. M. Hall and Woods & Kuykendall, for appellee.
The bill of complaint was clearly and unquestionably demurrable. There is no averment in the original bill of complaint that the sum of money alleged to have been collected by the said Sanders, acting as the representative and agent of said clerk and treasurer, have not been by said clerk and treasurer paid into the depository, and it cannot be said that the municipality of Charleston has not received every penny of the money which is the subject-matter of this suit.
WHY DID NOT COUNSEL FOR THE COMPLAINANT AMEND THE BILL OF COMPLAINT SO AS TO COMPLY WITH THE SUGGESTION AND RULING OF THE LOWER COURT AND MAKE THE ALLEGATIONS OF THE BILL OF COMPLAINT CLEAR AND SPECIFIC? If all the money belonging to the city of Charleston had been paid into the depository, we care not by whom the payments were made, whether by J. W. Sanders, the clerk, or by the treasurer, the complainant had no cause of action against J. W. Sanders, or surety on his official bond as mayor. By the language and terms of the bond this appellee only undertook and guaranteed that J. W Sanders, as mayor, would well and truly perform the duties of his, the mayor's office, and it is not pretended that said city ever sought to have this company bond said mayor for the...
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