Opinion
Argued October 6, 1908
Decided October 23, 1908
Odell D. Tompkins for Andrew M. Kenlon et al., appellants. Joseph S. Wood for Amanda Bussing et al., appellants.
J. Mortimer Bell for respondent.
The city of Mount Vernon was incorporated on the 22nd of March, 1892, by chapter 182 of the laws passed in that year. By section fifteen it is provided that every person elected or appointed to any office before entering upon the same shall take the oath of office prescribed by the Constitution, and that "every person so elected or appointed who neglects, for fifteen days after his election or appointment, to give the bond or security required by law, or by the common council under this act, or to take and file said oath of office, shall be deemed to have declined the office, and it shall be vacant."
Other sections regarded as material on this appeal are as follows: "Section 10. Every officer shall hold his term of office until his successor shall have been elected or appointed, and shall have qualified, unless his office has become vacant, as provided in this act."
"Section 27. The receiver of taxes and assessments shall hold office for two years. Before entering upon the duties of his office he shall enter into a bond to the city of Mount Vernon in such penal sum as shall be fixed by the common council, but which shall not be less than twenty thousand dollars, which bond must be approved by the common council and filed in the office of the city clerk."
"Section 44. The receiver of taxes and assessments within fifteen days after his election, shall make and execute as such a bond to the city of Mount Vernon, with sufficient sureties, who shall be freeholders within and residents of the city, in a penal sum of twenty thousand dollars, conditioned for the faithful discharge of his duties, and that he will account for and pay over all moneys received by him as such receiver, which bond must be approved by the common council and filed with the city clerk before he enters upon the duties of his office. Such bond shall be a lien upon the real estate of the said receiver and his respective sureties, until canceled and discharged. The salary of the receiver of taxes and assessments shall be at the rate of two thousand dollars per year."
The following is a copy of the bond in question: "Know all men by these presents: That we, John H. Brett, as principal, and Andrew M. Kenlon, Patrick H. Sharkey, John J. Fay, Henry Palm and Peter Sheridan, as sureties, are held and firmly bond unto the city of Mount Vernon in the penal sum of Twenty-five thousand dollars, to be paid to the said City of Mount Vernon for which payment well and truly to be made we jointly and severally bind ourselves, our and each of our heirs, executors and administrators firmly by these presents. Sealed with our seals, and dated the 15th day of June in the year of our Lord one thousand eight hundred and ninety-eight. Whereas, the above bounden John H. Brett, has lately been elected to the office of Receiver of Taxes and Assessments of the City of Mount Vernon. Now the condition of the above obligation is such, That if the said John H. Brett as Receiver of Taxes and Assessments shall well and faithfully discharge the duties of his office and account for and pay over all moneys received by him as such receiver then the above obligation to be void, else to remain in full force and virtue."
Such bond at the date thereof was signed, sealed and acknowledged by the obligors therein named.
It is unnecessary for us to decide whether the legislature intended that two bonds should be given, one under section twenty-seven and the other under section forty-four, or whether it meant that the common council should elect under which section the bond should be drawn, for the bond in question, as we think, was given under the earlier section only. When read in connection with the Public Officers Law, to which we shall presently allude, it substantially conforms to section twenty-seven, but whether read with or without that act, it fails to conform to section forty-four. It was given before the receiver entered upon the duties of his office in the penal sum of $25,000 which had been duly fixed by the common council. It was approved by that body forty-eight days after the receiver entered upon his duties and filed with the city clerk forty-two days after that date. Section forty-four requires that the bond shall be given within fifteen days after the election of the receiver, in the penal sum of $20,000, and approved by the common council and filed with the city clerk before the receiver enters upon the duties of his office. "Such bond," as that section further provides, "shall be a lien upon the real estate of the said receiver and his respective sureties until canceled and discharged." The bond in question was not given by the receiver within fifteen days after his election, but it was given before he entered upon the duties of his office. It was not given in the penal sum of $20,000, which is unalterably fixed by the legislature in section forty-four, but was given for the sum of $25,000, the amount fixed by the common council, pursuant to the authority of section twenty-seven, which does not name the penalty but authorizes the common council to determine it, subject to the limitation that it cannot be for a sum less than $20,000. It is further to be observed that section twenty-seven provides for a bond which must be filed in the office of the city clerk without specifying the time, while section forty-four requires a bond that must be filed before the receiver enters upon the performance of his duties. Section twenty-seven contains no provision that the bond shall be a lien upon the lands of the bondsmen, while section forty-four makes the bond a lien upon the the real estate of both principal and sureties until it is canceled and discharged, although there is no provision that the lien shall be specified in the bond itself.
To summarize the chief differences, the bond was given for $25,000 as authorized by section twenty-seven, and not for $20,000 as required by section forty-four. It was executed on the 15th of June, the day when the receiver assumed duty, as provided by section twenty-seven, but not within fifteen days after his election, as provided by section forty-four. It was approved and filed within the period permitted by section twenty seven, but not before the officer entered upon the duties of his office as prescribed by section forty-four. These provisions of the two sections are equally specific, so that the rule that the particular controls the general does not apply. When the legislature commanded through section forty-four that a bond should be given in the penal sum of $20,000, no more and no less, and conferred no power upon the common council to increase or diminish the amount, the express command was not met by giving a bond for $25,000. Section twenty-seven is the only section in the charter that authorizes the common council to fix the penalty of the bond. The common council duly fixed it at the sum of $25,000 and the bond was so written. As it conforms to section twenty-seven, but does not conform to section forty-four, why should it be held that it was given under the latter and not under the former? The city could have no lien without conforming to the section which provides for a lien. If it desired a lien, it should have insisted upon a bond for $20,000, the only amount which, as the legislature provided, could become a lien. As it exacted a bond with a larger penalty, the sureties are bound only by the language of the bond, and the language of the section which provides for a larger penalty, supplemented by the language of the Public Officers Law. The bondsmen did not subject their property to a lien by signing a bond which did not provide for a lien and which was given under a section of the charter that does not create a lien.
All the sureties concede that they are liable on the bond, some because they regard it as a valid common-law bond and others because they think it is valid as a statutory bond given pursuant to section twenty-seven. While they admit their liability, they deny that the bond imposed any lien on their lands because it not only fails to conform to section forty-four, which alone provides for a lien, but actually violates it.
The bond is not a lien unless some statute expressly makes it one, for there is no covenant to that effect. No writing obligatory whereby the obligor simply promises to pay a sum of money to another, is a lien on the property of the promisor in the absence of a statute or covenant expressly making it a lien, and where there is such a statute it must be strictly complied with in order to create the lien. An important case decided by the Kentucky Court of Appeals is directly analogous in principle. A statute of that state made the official bond of a sheriff a lien upon his real estate. He was required to give the bond at the January or February term of the County Court in each year, but in 1860 the sheriff of Wayne county did not give any bond until the month of June. It was held to be good as a common-law bond, but not as a statutory bond, and, hence, that it created no lien. The learned court said: "These liabilities are all created upon the part of the sheriff and his sureties by reason of the execution of his official bond as required by the statute. * * * The liens attempted to be asserted in this case by the Commonwealth must have originated from the execution of the bond by the sheriff as required by law. This bond must have been executed either in the month of January or February, and having been executed at a later date, viz., in June, 1860, it was no statutory bond, and its execution created no lien on Bates' property. It is true that Bates by the execution of the bond in June is estopped to say he was not sheriff, but this liability and estoppel did not originate by reason of his compliance with the statute or the execution of any statutory obligation, but on account of his own undertaking in the execution of a bond enabling him to collect the revenue that must be regarded as creating a common-law liability only. If Bates after his election as sheriff had acted as such, and proceeded to collect the revenues without the execution of any bond whatever in a suit against him by the Commonwealth for the moneys collected he would have been estopped to deny that he was sheriff, and still his acting in this official capacity would not give to the Commonwealth a lien upon his estate for the reason that it cannot exist without a compliance with the statutory enactment creating it." ( Hall v. Commonwealth, 71 Ky. [8 W.P.D. Bush] 378.)
While in the case before us the date when the bond was given, approved and filed may not be of controlling importance owing to the Public Officers Law, still the amount for which the bond was given shows that it was not a statutory obligation under the section giving a lien upon real estate. A statutory bond is not enough to support the judgment before us, unless it is such a statutory bond as becomes a lien by force of that part of the statute under which it was given. Section forty-four directs that "such bond," that is, a bond conforming to that section, shall be a lien upon the real estate of the receiver and his sureties. No lien is given by any other section, or by any other language. A searcher of titles, if he found the bond in question, could not identify it as given under that section.
The city tried to meet this situation by calling to its aid certain provisions of the Public Officers Law (L. 1892, ch. 681; L. 1894, ch. 403). Section eleven of that act provides that "every official undertaking, when required by or in pursuance of law to be hereafter executed or filed by any officer, shall be to the effect that he will faithfully discharge the duties of his office and promptly account for and pay over all moneys or property received by him as such officer, in accordance with law, or in default thereof, that the parties executing such undertaking will pay all damages, costs and expenses resulting from such default, not exceeding a sum, if any, specified in such undertaking. * * * The sum specified in an official undertaking shall be the sum for which such undertaking shall be required by or in pursuance of law to be given. If no sum, or a different sum from that required by or in pursuance of law, be specified in the undertaking, it shall be deemed to be an undertaking for the amount so required. If no sum be required by or in pursuance of law to be so specified, and a sum be specified in the undertaking, the sum so specified shall not limit the liability of the sureties therein. * * * The failure to execute an official undertaking in the form or by the number of sureties required by or in pursuance of law, or of a surety thereto to make an affidavit required by or in pursuance of law, or in the form so required, or the omission from such an undertaking of the approval required by or in pursuance of law, shall not affect the liability of the sureties therein."
The sum specified in the bond under consideration is the sum required by law. It is not a bond in which "no sum" is specified, or "a different sum from that required by or in pursuance of law," for the sum of $25,000 is specified, and that sum, as fixed by the common council, is the sum "required by or in pursuance of law." There was neither omission nor variance, for section twenty-seven expressly authorizes the common council to fix the penalty, provided it is not less than $20,000, and that body accordingly fixed it at $25,000, the amount for which the bond was given. The remainder of the section, as quoted, relates simply to the personal liability of the sureties, notwithstanding certain defects, and the sureties before us admit their liability. The section contains no provision relating to liens or remedies. It simply makes valid certain defective bonds, so far as the personal liability of the sureties is concerned, but stops there and does not provide that such a bond shall be a lien on the real estate of the bondsmen, notwithstanding any such defect. It makes the sureties liable on the bond, but it does not make the bond a lien upon their property. The city gets no support for its alleged lien from this section, and none from sections twelve and fifteen of the same act, which are also relied upon by its counsel. Section twelve makes the sureties personally liable for the acts and defaults of their principal done or suffered before the bond was given, even if it was given at a date later than the law requires, provided it was given during his official term. Section fifteen validates the acts of a de facto officer, who, although duly chosen, enters upon the performance of the duties of the office without taking the oath or filing the undertaking required by law. It says nothing about the liability of sureties, and neither gives a remedy nor validates a lien. The Public Officers Law simply makes a bond that is defective in form or date, or method of execution, valid as the personal obligation of the sureties, but it goes no farther. It does not make an invalid bond a lien on real estate even after it is validated, and the rule of strict construction does not permit the courts to extend the statute by implication beyond the letter of its command. A statute that makes an official bond a lien upon the real estate of the obligors, although neither filed nor recorded in the county clerk's office, where the evidence of liens on lands is kept, should be construed strictissimi juris and held down to its positive, clear and unmistakable requirements. No attempt can be made to wrest the bond from the section under which it was given, and turn it into a bond called for by a section under which it was not given, without violating the rights of the sureties. This reasoning applies with equal force to section 729 of the Code of Civil Procedure, which goes no farther than the Public Officers Law. Neither statute creates or validates a statutory lien, and, in this case, neither is to be read in connection with section forty-four of the charter, because the bond in suit does not purport to have been given under that section.
The learned justices below assumed, without so deciding, that the penalty of the bond could be lawfully fixed only at the sum of $20,000, although they sanctioned its enforcement as a bond for $25,000. They were of the opinion that the liability of the sureties is measured, "not by the language of the obligation assumed by them, but by the requirements of the statutes under which the obligation may be required and in conformity with which it purports to have been given." ( City of Mount Vernon v. Kenlon, 97 App. Div. 191, 197.)
This position ignores the distinction between a common-law bond and a statutory bond, for the latter is one that conforms to a statute, while the former does not, although it was so intended. Doubtless the section of the statute under which the bond was given is by operation of law read into the bond, but the vital question at once arises, under which section was the bond given? The learned Appellate Division made no attempt to answer this question.
When each of two sections of equal force in the same statute provides for a bond, and the provisions are at variance, the language of the bond must determine under which section it was given. When the language shows that the bond could have been given under one section, which affords no lien, and that it could not have been given under another section, which provides for a lien, "the requirements" of the former measure the obligation of the sureties, not those of the latter. While section twenty-seven of the charter does not specify the condition to be writen in the bond, that defect is supplied by section eleven of the Public Officers Law, so that no reference to section forty-four of the charter need be made for any purpose. Said section twenty-seven when read with said section eleven is complete and the bond in question given in conformity is a complete statutory obligation that bounds the rights and obligations of the parties thereto. The right of the city is to enforce it as a bond for $25,000 in the ordinary way and the obligation of the sureties is to pay that amount, but the city has no right to a lien and the lands of the obligors and their grantees are not incumbered by the bond.
This conclusion makes it unnecessary to consider the other questions so ably discussed by counsel.
The judgments below should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, WERNER and CHASE, JJ., concur; WILLARD BARTLETT, J., not sitting.
Judgments reversed, etc.