School Dist. of Omaha v. Adams
| Decision Date | 10 November 1949 |
| Docket Number | 32648. |
| Citation | 39 N.W.2d 550,151 Neb. 741 |
| Parties | SCHOOL DISTRICT OF OMAHA v. ADAMS et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The statutory requirement that a school district treasurer shall give a bond is not a duty of the office but rather a required precedent element of qualification for the office as distinguished from eligibility therefor, and upon failure to have such an official bond executed, approved, and filed as required by law, such office becomes ipso facto vacant, as provided by section 11-115, R.S. 1943.
2. The term of an official statutory bond is not ordinarily measured by annual premium charges but by the fixed term of the public office for which the bond was given, or the term as specifically provided in the bond itself.
3. A board of education is a creature of statute, and as such possesses no other powers than those expressly granted by the Legislature.
4. A legislative act will operate only prospectively and not restrospectively, unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed.
5. Section 79-2715, R.S.Supp.1947, is operative prospectively only.
6. In the absence of express statutory authority, no public official or governing body has authority to cancel substitute, change, or modify an existing official statutory bond, or to release and discharge the surety thereon prior to termination of the trust of the office or the term for which it was given.
7. A statute simply granting an official or governing body prospective authority to exercise a limited discretion and thereby fix the amount of the penalty and approve an official statutory bond does not by implication authorize such official or body to modify or cancel a bond theretofore validly executed, or to reduce the penalty and pro rata release and discharge the surety prior to its termination.
8. The incorporation of a statutory provision prospectively authorizing an official or governing body to enlarge the penalty of an existing bond or to require an additional bond cumulative in character, which statute omits any reference to authority to make a reduction of the penalty after it had been theretofore fixed as required by statute, does not give any implied authority to do so.
9. The maxim, expressio unius est exclusio alterius, which is operative in the law as an aid in the determination of legislative intent with reference to statutory grants of power, means that where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned, unless the Legislature has plainly indicated a contrary purpose or intention.
Swarr May, Royce, Smith & Story, Omaha, Robert K. Andersen Omaha, for appellants.
William Ross King, Omaha, King & Haggart, Omaha, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
This action sought a declaratory judgment construing and applying Chapter 297, Laws of Nebraska, 1947, now section 79-2715, R.S.Supp., 1947, with relation to the bond of the treasurer of the board of education for plaintiff district in Omaha, a city of the metropolitan class, which bond was theretofore duly executed in conformity with section 79-2715, R.S.1943, prior to amendment of the latter section by the foregoing act.
After hearing upon the merits, the district court entered a decree finding and adjudging the issues generally for plaintiff and against defendants. The decree found that section 79-2715, R.S.Supp., 1947, was retrospectively operative, thus applicable to the original bond, and empowered the board of education to require a reduction in the penalty thereof during the term for which the original bond was given. The decree ordered and adjudged that defendants should reduce the penalty of the original bond from $500,000 to $200,000, effective January 1, 1948, by execution of a rider to be attached and made a part thereof, and awarded plaintiff a money judgment against defendant Continental Casualty Company for $3,060, with interest from January 1, 1948, which sum represented the pro rata unearned premium upon the reduced penalty for the balance of the term.
Motion for new trial was overruled, and defendants appealed, assigning substantially that the judgment was contrary to law. We sustain the assignment.
There was no dispute about the facts. Defendant Ernest A. Adams, hereinafter generally designated treasurer, was duly elected and qualified as county treasurer of Douglas County for a term of four years, beginning January 9, 1947, the first Thursday after the first Tuesday in January next succeeding his election. Upon election as such, and subsequent qualification for the office, he was concededly ex officio treasurer of the board of education for plaintiff district, hereinafter generally designated as plaintiff. On January 9, 1947, in conformity with section 79-2715, R.S.1943, and certain other statutes in pari materia therewith, the treasurer as principal, and defendant Continental Casualty Company, as surety, hereinafter generally designated as such, with approval of plaintiff's board of education, executed an official bond payable to plaintiff in the principal sum of $500,000, which bond was duly filed as required by law.
The bond specifically provided: 'THE CONDITION OF THIS OBLIGATION IS SUCH, that WHEREAS, the above bounden, ERNEST A. ADAMS, has been elected to the office of TREASURER OF THE SCHOOL DISTRICT OF THE CITY OF OMAHA, in the County of Douglas, in the State of Nebraska, for a term of four years, commencing on the 9th day of JANUARY, A. D., 1947 and ending on the 4th day of JANUARY, A. D., 1951, or until his successor in office is duly elected and qualified.
'NOW, THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that if the said ERNEST A. ADAMS shall render a true account of his office and of the duties therein to the proper authorities when required thereby or by law; and shall promptly pay over and deliver to the person or officers entitled thereto, all money and property which may come into his hands by virtue of his said office, and shall faithfully account for all balances of money remaining in his hands at the termination of his office, and shall hereafter exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, papers and securities or other property appertaining to his said office, and deliver them to his successor or to any person authorized to receive the same; and if he shall faithfully and impartially discharge all other duties now or hereafter required of his office, by law; then this obligation shall be void, otherwise to be and remain in full force and effect.' (Italics supplied.)
In that connection, contrary to plaintiff's contention, any statutory requirement that the treasurer should give a bond would not be a duty of his office, but rather, as hereinafter observed, would be a required precedent element of qualification as distinguished from eligibility for the office in order to avoid a vacancy and permit him to legally hold the office and perform the duties thereof then or thereafter required by law. The conditions and obligations recited in the bond had reference solely to the duties of his office after qualification therefor by execution of the bond.
Concededly, the agreed annual premium charges for the bond were $2,000 for the first year, which sum plaintiff paid the surety when the bond was executed, and three subsequent annual premiums amounting to $6,000, which were a short time after execution paid in full by plaintiff to the surety at a discount of 15 percent. It will be noted that the term of the treasurer was four years, as provided by statute, and that the term of the bond was specifically for that period, or until his successor in office was duly elected and qualified for the office.
In that regard, the term of an official statutory bond is not ordinarily measured by annual premium charges but by the fixed term of the public office for which the bond was given, or the term as specifically provided in the bond itself. Jaeger Mfg. Co. v. Massachusetts Bonding & Ins. Co., 229 Iowa 158, 294 N.W. 268; 9 C.J., Bonds, ss. 73 and 74, p. 44; 11 C.J.S., Bonds, § 55.
Fidelity & Deposit Co. v. Libby, 72 Neb. 850, 101 N.W. 994, relied upon by plaintiff, involved the bond of an appointee whose term was not fixed by statute but revocable at pleasure. Therein also neither the application for the bond nor the bond itself recited any prospective term of the principal's office or the term of the bond, but the surety simply undertook therein to become and remain bound only so long as the agreed annual premium should be paid in advance. The opinion is therefore distinguishable both upon the law and the facts.
When the original bond was executed, section 79-2715, R.S.1943, insofar as important herein, provided:
The foregoing section, as amended by what is now section 79-2715 R.S.Supp., 1947, was approved May 24, 1947, and became effective 90 days thereafter. The amendment imposed new duties upon the treasurer of the same general character as those theretofore imposed, and...
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