The People v. Slocum

• Decision Date: 01 August 1866
• Citation: 1 Idaho 62
• Parties: The People v. Alfred Slocum, Et Al.
• Court: Idaho Supreme Court

1 Idaho 62

The People v. Alfred Slocum, Et Al.

Supreme Court of Idaho

August 1, 1866

CONTRACT-PARTY PLAINTIFF.-When a contract is made with a party in which another has a beneficial and resulting interest, the party with whom the contract was made has the right to recover though he allege the injury only to be to the stranger to the instrument or contract.

OFFICIAL BOND.-A bond not filling the statutory requisites, yet which is lawful in itself and intended to protect the public, is a good bond.

IDEM.-If the bond which the law required of the defendants was not given, if the one given, instead of containing all the conditions which it should have contained, was less onerous this is no defense to the breach of those conditions to which the defendants were parties.

STATUTORY BOND-OFFICER.-If a person get possession of an office by usurpation, and give a statutory or legal bond, and a breach of its conditions be committed, he is as much liable on such bond as though he had been duly elected or appointed.

SURETIES.-The sum set opposite the names of the respective parties subscribing a bond joint and several by its terms is intended to show the sums for which they intend to justify and to fix their liabilities toward each in the event of the collection of the penalty.

CAUSES OF ACTION-PLEADING-JOINDER.-The rule under the code allows a party to state as many causes of action as he may have, if they are of a character to be properly combined in the same complaint, but it does not permit a party to set out the same causes under different forms.

VARIANCE-PROOFS.-It is considered no variance from the proof if the facts show a substantial right to recover under the allegations, and the necessity of having various forms of stating the same cause of action is thus fully obviated.

APPEAL from the Second Judicial District, Boise County.

The title of the suit as set out in the complaint is:

The people of the United States in the territory of Idaho, upon the relation of C. B. Waite, district attorney of said judicial district, suing for the use of said county of Boise, against Alfred Slocum (and twenty-four others, sureties).

The following is a copy of the bond sued upon:

"Know all men by these presents: That we, Alfred Slocum, as principal, and A. Scheline, E. Helfer, I. Sterne, I. C Adams, I. H. Bowman, J. H. Heckman, H. H. Raymond, D Markham, W. W. Chipman, M. McCormick, J. Sanders, D. Wertheimer, F. B. Butler, J. M. Betts, S. Owens, P. Kelly, J. Clarressy, F. C. Brown, E. Peyton, C. L. Goodrich, Sam'l Lawrin, Geo. Meritt, P. B. Smith, Frank Campbell, as sureties, all of the county of Boise and territory of Idaho, are held and firmly bound unto the people of the United States in the territory of Idaho, the said Alfred Slocum as principal, in the sum of thirty thousand dollars; the said E. Helfer as surety, one thousand dollars; the said I. Sterne as surety, one thousand dollars; the said I. C. Adams as surety, one thousand dollars (thus on through the list of sureties, ranging from one to five thousand dollars); for payment of which well and truly to be made we bind ourselves and our and each of our heirs and legal representatives in the respective amounts for which we become bounden as above, jointly and severally firmly by these presents.

"The condition of the above obligation is such, as, whereas the above-bound Alfred Slocum was, at a general election held in said county and territory on the tenth day of October, 1864, elected treasurer of said county by reason whereof and by operation of law he became treasurer of said Boise county: Now if the said Alfred Slocum shall truly and faithfully discharge the duties of said office of treasurer of said county according

to law, then this obligation shall be null and void, otherwise to be and remain in full force and effect." (Then follow the signatures of the parties subscribing the bond, with the sums set opposite their names respectively, as above indicated.)

To the bond there is appended the justification of the sureties.

Defendants demur to the complaint; a formal ruling on this demurrer was made by the district court, and the cause adjourned into the supreme court for hearing on such demurrer.

C. B. Waite, for the Plaintiffs. J. K. Shaffer and S. A. Merritt, for the Defendants.

The statute provides that each county treasurer, before entering upon the duties of his office, shall enter into bond with two or more sufficient freehold sureties, in double the probable amount, etc. (Stats., p. 499, sec. 108.) That which should be done the law presumes to have been done. It appears from the complaint that Slocum was acting as treasurer of Boise county, and as such received-dollars from C. D. Vajen, before the execution of the bond sued on in the complaint. If then the law presumes him to have entered into bond before entering upon the discharge of the duties of his office, the complaint is fatally defective, in not alleging facts that discharge said bond, as cancellation, exhaustion, discharge, etc. The board of commissioners is a tribunal of inferior and limited jurisdiction, and can exercise no powers except such as are conferred by statute. The board is the creature of the statute. The statute does not authorize the board to require or take an additional or further bond after having entered upon the discharge of the duties of his office. Nor can the board do so. It would be the act of the members of the board as citizens, and not in their capacity as a board. A bond exacted by an officer when he has no authority to require it is void. (Benedict v. Bray, 2 Cal. 255, 56 Am. Dec. 332; Thompson v. Lockwood, 15 Johns. 256.) There is no averment in the complaint that the board of commissioners fixed the sum of thirty thousand dollars or any other sum as the amount of the bond of the treasurer.

The bond itself is a legal curiosity; it is neither a common-law bond, nor is it a statutory undertaking; it is joint: as many obligations of the principal and each of the sureties as there are sureties. (People v. Hartley, 21 Cal. 589, 82 Am. Dec. 758.) The statute requires a joint bond, or a joint and several bond; each obligor must undertake to pay the whole penalty. A voluntary bond to the state, without legislative authority to secure performance, etc., is void. (Commonwealth of Kentucky v. Bassford, 2 E. D. Smith, 218; 1 Abb. Dig. 484.) When a statute prescribes the condition of a bond, its provisions must be strictly complied with, or the bond will be void. (Abb. Dig., p. 484, sec. 12; Barnard v. Viele, 21 Wend. 88.) Sureties are not liable for past defaults unless made so in terms. (Farrar v. United States, 5 Pet. 373; Curtis Dig., p. 66, sec. 1.)

When an act requires a bond to be taken with a condition for the faithful disbursement of public money, and also for the faithful discharge of duty, and the former is omitted from the condition, query, whether the latter can be shown by proof to cover it. (Farrar v. United States, 5 Pet. 373; Curtis Dig., p. 67, sec. 7.) No person who is not the obligee of the bond or its assignee, can put it in suit unless authorized to do so by the legislature. It is not enough that a breach of the bond has damnified the person who brings the suit. (Corporation of Wash. v. Young, 10 W., Curtis Dig., p. 65, sec. 8.)

McBRIDE, C. J.,

delivered the opinion of the court,

KELLY J., concurring.

The complaint in this case alleges that Alfred Slocum was the treasurer of Boise county; that on the twenty-sixth day of June, A. D. 1865, he and the other defendants executed their bond, a copy of which is set out in the complaint, to the people of the territory of Idaho, in the penal sum of thirty thousand dollars, for the faithful performance of the said Slocum's duties as such officer; that on the thirtieth day of the same month and year, said bond was approved, filed and recorded in the office of J. M. Murphy, county recorder of Boise county. The

complaint further avers that said Slocum was acting in the capacity of county treasurer from the said twenty-sixth day of June, 1865, until the eleventh day of January, 1866, and sets out four several breaches of the conditions of said bond.

The first breach assigned is that during the time the defendant, Slocum, was acting as county treasurer, he received funds amounting to about the sum of three thousand dollars, belonging to the county of Boise, which sum he neglected and refused to pay over according to law.

The second breach assigned is, that during the time the defendant, Slocum, was so acting as county treasurer, he received about the sum of three thousand dollars-proceeds of the tax levied and collected on real estate, personal property, moneys collected as poll taxes, and licenses in and for said county- and that said defendant failed and neglected to pay warrants properly drawn on said funds according to law.

The third breach assigned is that during the time the defendant, Slocum, was acting as county treasurer, he had in his possession about the sum of four thousand dollars belonging to the said county of Boise, which had been paid to him by his predecessor in office; and, further, the sum of one thousand dollars which had been paid to him in his capacity as county treasurer, which funds the defendant did not disburse as required by law, and has wholly failed and neglected to account for in any way whatever.

The fourth breach assigned is that the defendant Slocum was on the fifteenth day of January, 1866, the county treasurer of Boise county, and had as such officer received the sum of about three thousand dollars, and had the same on hand or should have had; that said Slocum, on going out of said office of county treasurer on the fifteenth day of January 1866, did not,...