Territory v. Carson
| Decision Date | 21 January 1888 |
| Citation | 16 P. 569,7 Mont. 417 |
| Parties | TERRITORY v. CARSON et al. |
| Court | Montana Supreme Court |
Appeal from district court, Gallatin county;
J. H McLEARY, Judge.
Armstrong & Hartman and Henry N. Blake, for appellants.
W. E Cullen, Atty. Gen., and Frank Henry, for respondent.
This is an appeal from a judgment rendered against the appellant Charles A. Carson, probate judge of Gallatin county, and the other defendants, who were the sureties upon his official bond, for certain money alleged to have been received by him and unlawfully withheld by him from the county. This judgment was rendered in consequence of an order sustaining respondent's two motions for judgment on the pleadings the one being for judgment against the appellant Carson, and the other for judgment against the sureties.
It is claimed that the complaint does not state facts sufficient to constitute a cause of action against the sureties on the bond, for the reason that, the suit being brought under what is termed the "salary law" of 1885, div. 5, Comp St. p. 891, and being entitled in the name of the territory of Montana for the use of the county of Gallatin, as that act provides, it should contain an allegation that the defendant Carson had been convicted of a violation of the provisions of this law before an action will lie against the sureties upon his official bond. Ordinary actions by or against counties should be in the name of the board of county commissioners. Section 784, div. 5, Comp. St. But although this action is brought under the salary law, we do not think that this statute bears this construction. That portion of this statute which it is claimed supports this position of the appellants is as follows: "He , "referring to the officer named in the statute, "shall upon conviction upon indictment, in the district court of the proper county, be adjudged guilty of misconduct in office, and be immediately removed therefrom, and, in addition, forfeit all compensation to which he would otherwise be entitled, and be condemned to pay a fine for the use of the county of not less than five hundred dollars, nor more than two thousand dollars, for the payment of which forfeiture and fine, as well as any amount otherwise due from him in his official capacity, his sureties shall also be liable upon their bond, to be recovered in a civil action, in the name of the territory of Montana for the use of the county in which he was an officer." Section 938, div. 55, Comp. St. Section 932 of this act provides for the making of quarterly reports, under oath, to the county commissioners by the officers mentioned therein, for all fees, etc., receivable for any services rendered by them in their offices during the preceding quarter. Section 936 provides for the payment into the county treasuries, at the end of each quarter, by each of these officers, of all fees collected by them during such preceding quarter. Section 938 mentions this money as being due upon the settlement which the act evidently contemplates shall be made at the end of the officers named in the act shall be liable for any violation by him of any of the provisions of the act, and for his faithful performance of all the duties by it required. Among these duties is the payment of all moneys due from him upon settlement with the county commissioners into the county treasury. Taking into consideration the tenor of the whole act, it is evident that the phrase "as well as," taken in connection with the term "also," means that, in addition to the liabilities of the sureties upon the bond for any money found to be due upon settlement with the county commissioners, under the act, they should also be liable for the forfeiture and fine to which the off- & pg 571 cer shall be subjected upon conviction for any of the causes mentioned in this section. But indictment and conviction are not conditions precedent to render the sureties liable on the bond of the officer for money found to be due to the county upon the quarterly settlement with the commissioners.DP Our next inquiry will be directed as to whether or not the facts contained in the pleadings warrant the judgment of the court rendered upon the motions for judgment therein; and the first question here presented is in relation to the liability of the sureties upon the official bond. The appellant Carson entered upon the duties of his office as probate judge of Gallatin county on the twentieth day of December, 18866, and his official bond was approved and filed on the fourteenth day of December, 1886. This action was instituted under what is generally known as the "salary law," to recover from the appellant Carson and the sureties upon the foregoing bond a certain sum found by the county commissioners to be due from him, on settlement, for certain money which was collected and received by him between the twentieth day of December, 1886, and the first day of September, 1887. This salary law provides for a salary to be paid yearly to the probate judge of Gallatin county, and provides also that "it is the true intent of this act to limit the maximum annual compensation from every source" to be paid to the said probate judge "to the sum named therein," viz., $1,800. The defense is substantially that the appellant Carson received the above sum under the act of the legislative assembly approved March 5, 1887, in relation to bounties for killing certain animals, in payment for his services and expenses in the premises. There are other matters set forth by way of defense, but they relate to and depend upon the determination of this question, which involves a construction of the salary law above referred to, and the foregoing statute in relation to bounties upon certain animals, and a previous statute upon the same subject, which was amended thereby. This last-named statute and the salary law were laws existing and in force at the time of the execution of the bond, and when the appellant Carson entered upon the duties of his office as probate judge. The former related to bounties upon bears, mountain lions, wolves, and coyotes which should thereafter be killed, or caused to be killed, in the territory of Montana, and making it the duty of the probate judges, and of the...
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