Tooele County v. De La Mare

• Decision Date: 07 January 1935
• Docket Number: 5308
• Citation: 90 Utah 23,39 P.2d 1051
• Court: Utah Supreme Court
• Parties: TOOELE COUNTY v. DE LA MARE et al

39 P.2d 1051

90 Utah 23

TOOELE COUNTY v. DE LA MARE et al

No. 5308

Supreme Court of Utah

January 7, 1935

This opinion superseded by opinion in 90 Utah 46, 59 P.2d 1155.

Appeal from District Court, Third District, Tooele County; Oscar W McConkie, Judge.

Action by Tooele County against Isabel De La Mare and another. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

A. E Moreton and H. L. Mulliner, both of Salt Lake City, for appellants.

C. E Baker, of Tooele, and J. T. Pence, of Salt Lake City, for respondent.

COX, District Judge. ELIAS HANSEN and FOLLAND, JJ., concur. STRAUP, C. J., and EPHRAIM HANSON, J., dissent. MOFFAT, J., did not participate.

OPINION

Rehearing granted.

COX, District Judge.

This is an action by Tooele county against Isabel De La Mare, former county treasurer of Tooele county, and National Surety Company, the surety upon her official bond, for the recovery of $ 58,053.35, balance of the said county's deposit in the defunct Tooele County State Bank at the time of its failure on January 14, 1931.

The facts in this case appear to be as follows: Prior to January 5, 1931, Isabel De La Mare was the duly elected, qualified and acting treasurer of Tooele county. Annie Campbell was elected as county treasurer at the general election held on the first Tuesday in November, 1930. On November 10, 1930, county clerk Bryan delivered to her a certificate of election. On the first Monday in January, 1931, the newly elected officials of the county, including Annie Campbell, took the oath of office. On that date the following minute was entered:

"At 12 o'clock, noon, the following officers were sworn in respectively, as follows: Fred Shelton, Commissioner, Richard Jeffries, C. E. Baker, County Attorney, O. A. Evans, Sheriff; Mrs. Annie Campbell, Treasurer; Miss Millie Shields, County Recorder; D. A. Lindsay, Justice of the Peace; R. Sterling Halliday, County Assessor; the oath being administered by the County Clerk, Fred Bryan, who was, in turn, sworn by County Attorney C. E. Baker. The County Clerk having advised the Board that he had the bond for the county officers, except Mrs. Annie Campbell, which bond, he was advised by County Attorney Baker, that upon all available information, would be filed today."

[90 Utah 27] At 1:30 p. m. of January 5th, the new commissioners met, and the following communication was received from Annie Campbell:

"To the Honorable Board of County Commissioners of Tooele County:

"I hereby appoint Isabel De La Mare my deputy, to act in the county treasurer's office temporarily, and I also appoint Mrs. Emma Crowton to act as assistant deputy in said office, and request their confirmation.

"[Signed] Annie Campbell."

Upon this minute entry we have the following minute entry:

"After due discussion, it is, on motion of Commissioner Shelton, seconded by Commissioner Jefferies, ordered that Isabel De La Mare be appointed deputy treasurer, at a salary of one hundred dollars per month, and that Mrs. Emma Crowton be appointed assistant in the treasurer's office, at a salary of three dollars per day, up to and including January 16, 1931."

Thereupon, and until January 16th, Miss De La Mare was in the office of county treasurer with Annie Campbell, Mrs. Campbell assuming the role of treasurer and Miss De La Mare as deputy. It further appears that on this day, January 5, 1931, Beesley & Reeves, a firm of accountants, were making a special audit of county records at this time, and among other things they were to check Miss De La Mare's books preparatory to her going out. After having taken the oath of office, Mrs. Campbell and Miss De La Mare and one of the accountants checked the cash Miss De La Mare had on hand, totaling $ 517.33, books checked and her books proved to check out correctly. All the cash was deposited in the bank on that day by Miss De La Mare. Mrs. Campbell accompanied Miss De La Mare to the bank, and, acting under instructions from the auditor, Miss De La Mare did not get a receipt for Mrs. Campbell. A signature card was made out, "Tooele County, by Annie Campbell, Treasurer." This being done, the cashier gave Mrs. Campbell a passbook. He did not enter in it the amount in the bank under account of Tooele county, by Isabel De La Mare. Mrs. Campbell then drew a check on the new account for $ 25, petty cash. Thereafter Mrs. Campbell took the keys from Miss De La Mare and proceeded to do the treasurer's work of taking tax money, canceling the pay roll, drawing checks, approving warrants, working on account books, making entries, etc. On January 14th, the bank closed its doors. At that time there was on deposit in the bank $ 64,053.72. Soon after a dividend of $ 6,405.37 was paid, leaving due $ 58,053.35, the amount sued upon in this action.

Mrs. Campbell never did subscribe to the oath required nor did she give a bond. She was in the office until March 6th, when Mr. Haynes, the treasurer at the time this action was filed, was appointed. Mr. Haynes filed a bond. Mrs. Campbell remained in the office as deputy under Mr. Haynes. Miss De La Mare, on January 16th, handed in her resignation as deputy, and was not in the office after that date.

While Miss De La Mare was treasurer, and during all of the time she had the county money on deposit in the bank, she did not require the bank to give a surety bond, nor require it to deposit as collateral any bonds of the United States, or bonds of Utah, or any of its counties, cities, or political subdivisions, nor was any required after January 5, 1931, when the account was changed to Annie Campbell.

The lower court entered judgment for Tooele county against Miss De La Mare and her bondsman, the National Surety Company.

The case comes before this court on appeal, setting up fourteen assignments of error. However, in presenting the case to the court, both the appellants and the respondent consolidated and treated the assignments under ten propositions, and by referring and disposing of these propositions as they were argued to the court, all the assignments of error will be disposed of.

The appellants present the following contentions based upon their assignments of error:

1. The term of Miss De La Mare was for a fixed and definite period of four years, and under the law expired on the first Monday in January, 1931.

2. On January 5, 1931, Annie Campbell became the duly appointed, qualified, and acting treasurer of Tooele county, and, as such, was a de jure officer. There is no competent evidence in the record that she failed to file an official bond.

3. Miss De La Mare had no right to pass upon the qualifications of her successor, Annie Campbell, and that duty devolved upon the county commissioners.

4. Miss De La Mare had no right to hold over, and did not hold over after January 5, 1931.

5. Annie Campbell was at least de facto treasurer, and, as such, qualified to act and did act as treasurer of Tooele county.

6. Miss De La Mare duly accounted and paid over to Annie Campbell, as her successor, all county funds, including those in the defunct bank.

7. Respondent and its officials ratified the acts of Annie Campbell and are barred and estopped from contending that Miss De La Mare is liable for the alleged loss of the funds in the defunct bank.

8. The court erred in admitting evidence with respect to whether or not on and prior to January 5, 1931, Miss De La Mare had sufficient or lawful collateral to protect the deposits theretofore made by her; and the court further erred in making findings of fact and conclusions of law to the effect that the collateral so taken by Miss De La Mare was insufficient and/or illegal, for the reason that said evidence, findings of fact, and conclusions of law were not material to, and were outside of, the issues in this case. There was no loss before January 5th, and she had no funds and no duty to secure funds thereafter.

9. The court erred in making findings not supported by the evidence, and in failing to make findings upon material issues raised by the pleadings.

10. That in any event whether Annie Campbell was a de jure or de facto officer, or neither, the appellant surety company is not liable for any alleged acts or omissions of Miss De La Mare following the expiration of her term on January 5, 1931.

We will first take up No. 1 and No. 4, and treat them together:

1. The term of Miss De La Mare was for a fixed and definite period of four years, and under the law expired on the first Monday in January, 1931.

4. Miss De La Mare had no right to hold over, and did not hold over after January 5, 1931.

Appellants, in contending that Miss De La Mare's term expired January 5, 1931, and that she could not be held after that time, rely largely upon the Constitution of the State of Utah, article 4, § 9, which is as follows:

" The terms of all officers elected at any general election, shall commence on the first Monday in January next following the date of their election."

They contend that since the Constitution fixes the commencement of the term, Miss De La Mare could only hold for four years, and that a term which is to continue until the office holder's "successor is elected or appointed and qualified," is such an indefinite term as not to be good under the Constitution, and would in fact continue an officer's term beyond the implied limitation of our Constitution. In support of the appellants' claim, they cite the following authorities: 46 C. J. 968; 43 C. J. 642. Together with cases: State v. Clark, 87 Conn. 537, 89 A. 172, 52 L. R. A. (N. S.) 912 Commonwealth v. Sheatz , 228 Pa. 301, 77 A. 547, 50 L. R. A. (N. S.) 374, 21 Ann. Cas. 54, and State v. McIntosh, 109 Minn. 18, 122 N.W. 462, 126 N.W. 1135. In examining these citations, we find that they...