The State ex rel. And to Use of School District of Sedalia v. Harter
| Decision Date | 24 May 1905 |
| Citation | 87 S.W. 941,188 Mo. 516 |
| Parties | THE STATE ex rel. and to use of SCHOOL DISTRICT OF SEDALIA, Appellant, v. HARTER et al |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.
Affirmed.
J. H Bothwell and Charles T. Yeater for appellant.
(1) The treasurer of a school district is neither an officer within the meaning of section 4274, Revised Statutes 1899, nor in the legal acceptation of the term, because under section 9864 he is neither elected or appointed, but is chosen by the school board, and may or may not be a member of the board because no official oath, such as is prescribed by section 9760 for school directors, is required of him, which is a conclusive legislative construction that a school treasurer is not a public officer and not required to take the official oath prescribed by section 6 of article 14 of the Constitution. (2) The defendant school treasurer, even if held to be a public officer, cannot claim the benefit of the limitation of three years provided by section 4274, Revised Statutes 1899, because under the rule of ejusdem generis his office is not of the same class or kind as the elective offices of sheriff and coroner. State ex rel. v Ennis, 79 Mo.App. 15; St. Louis v. Laughlin, 49 Mo. 559; Ex parte Neet, 157 Mo. 527. (3) This is an action founded solely upon a sealed paper writing, the bond described in the petition, for the payment of money, only one of the defendant obligors claiming to be an officer and all being equally liable, and only the limitation of ten years provided in section 4272, Revised Statutes 1899, applies, and consequently the suit was timely. Miner & Frees v. Howard, 93 Mo.App. 569; Adelbert College v. Railroad, 13 Ohio Cir. Ct. 590. (4) The demurrer admits the allegation of the petition, at the close thereof, to the effect that the defendant Harter, the treasurer of the school district, in addition to the various specified failures in duty, resulting in a loss of $ 30,000 to the district, also failed and refused to render any account of the moneys so lost, and failed to settle with the school board for moneys and funds received, and failed to present such settlement to the county clerk for a certificate of correctness and for a prima facie discharge, as required by section 9871, Revised Statutes 1899, and until such settlement is made and such certificate and the grant of the prima facie discharge is given the Statute of Limitations does not begin to run. State ex rel. v. Minor, 44 Mo. 373; Kirk v. Sportsman, 48 Mo. 383; State ex rel. v. Brawley, 109 N.C. 524; Nelson v. Barnett, 123 Mo. 572.
Barnett & Barnett and Sangree & Bohling for respondents.
(1) (a) The statute treats of the treasurer of the school board of a city, town or village school district, and speaks of him in set terms as an "officer," his public position as an "office," his bond as an "official bond," and his duties as "official duties;" hence, ex vi termini, he is a statutory officer by virtue of express law. R.S. 1899, secs. 9864, 9868, 9869, 9871. So too, the office has an "official term," has an "expiration" of such term, and the incumbent thereof must settle with his "successor in office." R.S. 1899, sec. 9871. And it was carved out of the office of county treasurer, which officer was the custodian of all school moneys until the act relating to city, town and village schools created a new office, and gave a portion of the county treasurer's official duties to the treasurer of the school district. (b) There is no merit in appellant's contention that the statute is silent on the matter of his official oath, because a statutory requirement of an official oath is not requisite in Missouri. As to many officers, the statute makes no express provisions for an oath -- the whole matter being regulated, once for all, by the Constitution. Constitution, art. 14, sec. 6. And the presumption is that Harter qualified by taking the oath. (c) Nor is there merit in the contention that such an officer is not elected, but merely chosen by the school board; for vacancies on the school board are filled by the directors without election. R.S. 1899, sec. 6762. And can it be said that the director so selected is not an officer? So, too, a deputy sheriff is chosen by his principal and yet he is held to be an officer. State ex rel. v. Bus, 135 Mo. 332. (d) Furthermore, the office of treasurer of the school board of a town district is a "continuing one," it is "a public charge or employment;" it "receives its authority from the law and discharges some of the functions of government;" it is a "public trust created by competent authority," and thus, by all recognized definitions, Harter, as treasurer of the Sedalia school district, was an officer. State ex rel. v. Bus, 135 Mo. 331; Throop's Public Officers, secs. 2 to 9. The treasurer of the school board of a village district has been recognized as an officer by this court. State ex rel. v. Dorton, 145 Mo. 304. (2) Harter being an officer and, as shown by the petition, a liability having been claimed as incurred by his alleged doing of certain acts in his official capacity and in virtue of his office, and by the omission of alleged official duties during his term of office, commencing with July 1, 1889, and ending July 1, 1890, the three-years' clause (sec. 4274) of the Statute of Limitations is a bar to recovery -- the suit having been brought October 11, 1898, and the demurrer was properly sustained. This results from the following propositions: (a) Because the courts no longer look on statutes of limitation with disfavor nor construe them with harsh or refined technicalities, but apply them liberally to further their beneficent purpose as statutes of repose. Potter's Dwarris on Statutes and Constitutions, p. 148; Wood on Limitation of Actions (1 Ed.), sec. 4, p. 5; Shelby County v. Bragg, 135 Mo. 300. (b) The mere fact that the suit is in form on the bond is not decisive of the question as to what section of the Statute of Limitations governs. We must look deeper that the mere form or surface of the suit for the cause of action which is what the statute strikes at. As said by the courts in similar cases, ". . . . the gist of the action is not the bond, but the failure of the officer to discharge an official duty, and it is the cause rather than the form of the action upon which the limitation acts." State of Iowa v. Dyer, 17 Iowa 223; Keokuk County v. Howard, 41 Iowa 11; Brady v. St. Joseph, 84 Mo.App. 403; Menifee v. Arnold, 51 Mo. 538; State v. Conway, 18 Ohio 234. (c) The three-years section was applied to a suit against an ex-officio recorder: Shelby County v. Bragg, 135 Mo. 297. And to a suit on a bond of the clerk of the criminal court of St. Louis: State ex rel. v. Dailey, 4 Mo.App. 172. And to a suit on the bond of a circuit clerk. State ex rel. v. Stonestreet, 92 Mo.App. 214; County of Poweshiek v. Ogden, 7 Iowa 177. And to a suit against a county treasurer on his bond: State of Iowa v. Dyer, 17 Iowa 223; Keokuk County v. Howard, 41 Iowa 11; State v. Henderson, 40 Iowa 242. And to a suit against the successor to the clerk of the board of supervisors: Prescott v. Gonser, 34 Iowa 175. And to a suit against a clerk of the district court on his bond: Steel & Johnson v. Bryant, 49 Iowa 116. And to a suit against a deputy district clerk on his bond: Moore v. McKinly, 60 Iowa 367. In Indiana, where the statute is substantially ours, it has been applied to a suit against a county treasurer on his bond: Pickett v. State, 24 Ind. 366. And to a suit against a township trustee on his bond: Hawthorne v. State ex rel., 57 Ind. 286. And to a suit against a county auditor on his bond: Ware v. State ex rel., 74 Ind. 181. (3) The history of the enactment and its amendments amounts to a demonstration that the intent of the legislative mind was to make a broad and comprehensive limitation covering the official misfeasance and nonfeasance of all officers. Because: The statute as originally enacted did not include the words, "or other officer." Laws 1848-9, pp. 74-5, sec. 5. These words were inserted for the first time, six years later, in the Revision of 1855 (2 R.S. 1855, p. 1084, sec. 4), and were self-evidently intended to supply the deficiency in the statute. Now, the deficiency could not have been in the office of constable, the only other officer nearly allied in official duties to sheriff and coroner, for the statute already provided a special limitation for him of two years. R.S. 1835, p. 116, sec. 4; R.S. 1845, p. 112, sec. 6; R.S. 1855, p. 347, sec. 6. This special limitation in relation to constables is carried forward in the Revision of 1865, in Wagner's Statutes and in the Revision of 1879, and was changed to three years in 1889. R.S. 1889, sec. 2379. And is still found in our statute. R.S. 1899, sec. 882. But a deficiency in the statute did exist in relation to the misfeasance and non-feasance of "other officers," which was remedied by the Revision of 1855. (4) (a) The rule ejusdem generis is only one of the many rules of construction, and is merely an aid to the court in arriving at the real legislative intent. This intent must not be nullified. Bank v. Ripley, 161 Mo. 132; Kansas City v. Richardson, 90 Mo.App. 450; Ruckert v. Railroad, 163 Mo. 260; Black on Interpretation of Laws, pp. 143-4; Sutherland on Stat. Con., sec. 239, 279. (b) This rule can be invoked only where there is some ambiguity or obscurity in the legislative expression so that the intent is doubtful or uncertain. The rule is not made to create ambiguities nor will it be allowed to frustrate the plain legislative intent. Kansas City v. Richardson, supra; Ruckert v. Railroad, supra; St. Joseph v. Elliott, 47 Mo.App. 418; Kansas City v. Vindguest, 36 Mo.App. 584. (c)...
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