State ex rel. Saline Cnty. v. Sappington

• Decision Date: 31 October 1878
• Citation: 68 Mo. 454
• Parties: THE STATE OF MISSOURI to the use of SALINE COUNTY v. SAPPINGTON et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

68 Mo. 454

THE STATE OF MISSOURI to the use of SALINE COUNTY

v.SAPPINGTON et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1878.

Error to Saline Circuit Court..--HON. WM. T. WOOD, Judge.

G. G. Vest for plaintiffs in error.

Wagner's Statutes, sec. 42, p. 1251, provides that * * “on the forfeiture of such (county treasurer's) bond, it shall be the duty of the county clerk to collect the same for the use of the schools in the various townships. If such county clerk shall neglect or refuse to prosecute, then any freeholder may cause such prosecution to be instituted.” Section 43 requires the treasurer to settle each year with the county clerk, and to account to him for all school moneys received. These provisions naming the clerk, exclude the county, and nowhere is any authority given for the institution of such suit by the county court. Nor is it true that the county of Saline has the power to sue as trustee of an express trust. The county court has the care and management of the school fund, but the county has nothing whatever to do with it. The bond was not given to the county, but to the State for the benefit of the school township. Neither has the county any interest in the fund. It is administered by the county court purely in an administrative capacity, not as the agent of the county, but in the performance of a duty specifically devolved upon it by the laws of the State. Ray Co. v. Bentley, 49 Mo. 242; Reardon v. St. Louis Co., 36 Mo. 555; Township Board v. Boyd, 58 Mo. 279. The suit should, therefore, have been brought to the use of the county clerk.

Thomas Shackelford for defendant in error.

SHERWOOD, C. J.

Action instituted in the Saline circuit court against Sappington, late county treasurer of Saline county, and the other defendants as his sureties upon an official bond for $20,000, executed November 12th, 1868. The bond was given to the State of Missouri for the safe keeping and disbursement of the school fund of Saline county, and was duly approved by the county court. On April the 4th, 1871, while Sappington was still county treasurer, the county court made an order requiring him as treasurer, to execute an additional bond for $10,000 for the safe keeping and disbursement of the school fund, which bond was filed by Sappington on April the 7th, 1871, with new securities, and duly approved by the county court. This suit was instituted by the county after Sappington went out of office, to recover $3,115.71 on the first bond, from him and his sureties, for an alleged deficit of that amount of school money, and judgment was rendered against defendants for that amount.

I. Relative to the point of defendants still continuing liable notwithstanding the execution of the second bond, we are still of the same mind as when deciding the case of the State ex rel. Saline Co. v. Sappington et al., 67 Mo. 529. That case is decisive of this, in respect to the point referred to. We, therefore, rule that point against the defendants.

II. In reference to the legal capacity of the relator to institute to its use the present action, we have this to say: The county of Saline is the trustee of an express trust in regard to all ordinary suits relating to the school fund of that county. Bonds, for instance, for money loaned, are required to be executed to the county to the use of the township to...