Opinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Lucien Shaw, Judge.
COUNSEL:
The failure to file an official oath for the second term created a vacancy, and Hammond held over by virtue of his first election. (Pol. Code, secs. 879, 907, 996; People v. Taylor , 57 Cal. 620; French v. County of Santa Clara , 69 Cal. 519; Hull v. Superior Court , 63 Cal. 174; People v. Perkins , 85 Cal. 511; People v. Edwards , 93 Cal. 153.) The sureties on the bond for the first term continue liable for any defalcation occurring after the expiration of the first term, until a successor is qualified. (Pol. Code, sec. 959; Placer County v. Dickerson , 45 Cal. 12; Scott County v. Ring , 29 Minn. 398; Carr v. Wilson, 32 W.Va. 419.) The sureties on a bond given for a second term are not liable for defalcation occurring during a preceding term. (Inhabitants of Rochester v. Randall , 105 Mass. 295; 7 Am. Rep. 519, and cases cited in note, 521, 522; Vivian v. Otis , 24 Wis. 518; 1 Am. Rep. 199; Fox v. McCord, 54 Iowa 346; Held v. Bagwell, 58 Iowa 139; Van Sickel v. Buffalo County, 13 Neb. 103; 42 Am. Rep. 753; Hubert v. Mendheim , 64 Cal. 213; Lacoste v. Splivalo , 64 Cal. 41.)
Maye Wicks, and Chapman & Hendrick, for Appellants.
H. C. Dillon, District Attorney, for Respondent.
The title to the office for the term for which the bond was given cannot be determined in a collateral suit. (Hull v. Superior Court , 63 Cal. 177; Fraser v. Freelon , 53 Cal. 644, 647; People v. Toal , 85 Cal. 333; Mechem on Public Officers, sec. 436.) The sureties are estopped by the recitals on the bond to deny the official character of the principal. ( Code Civ. Proc., sec. 1962; Murfree on Official Bonds, secs. 210, 275, 296, 313, 321, 437, 672-74; Cooley on Taxation, 2d ed., 714; Chapman v. Commonwealth, 25 Gratt. 721; People v. Collins, 7 Johns. 549; Monteith v. Commonwealth, 15 Gratt. 172; State v. Bates , 36 Vt. 387; Green v. Wardwell , 17 Ill. 278; 63 Am. Dec. 366; Marshale v. Hamilton , 41 Miss. 229; Norris v. State , 22 Ark. 524; People v. Huson , 78 Cal. 154; People v. Jenkins , 17 Cal. 500, 504; Kelly v. State, 25 Ohio St. 567; Brandt on Suretyship and Guarantee, 2d ed., sec. 42; State v. Findley, 10 Ohio, 51.) The sureties on the bond for the second term are liable for the misappropriation of moneys to pay a defalcation for the preceding term. (Crawn v. Commonwealth , 84 Va. 282; 10 Am. St. Rep. 839; Board of Education v. Fonda , 77 N.Y. 350; State v. Van Pelt , 1 Ind. 304; Morley v. Metamora , 78 Ill. 394; 20 Am. Rep. 266; Moore v. Madison County , 38 Ala. 670; Pine County v. Willard , 39 Minn. 125; 12 Am. St. Rep. 622; Inhabitants of Colerain v. Bell, 9 Met. 499; Egremont v. Benjamin , 125 Mass. 18; Inhabitants of Sandwich v. Fish, 2 Gray, 301; Throop on Public Offices, sec. 219; State v. Sooy , 39 N. J. L. 539, 555; Lyndon v. Miller , 36 Vt. 332; Frownfelter v. State , 66 Md. 80.)
OPINION
THE COURT This action is brought against the defendant, El Hammond, as principal, and the other defendants as sureties, upon an official bond given by said Hammond as tax-collector of Los Angeles county. Hammond was not served with process and did not appear.
Hammond was elected tax-collector of said county at the November election in 1884, and gave bond and qualified as such and entered upon the duties of said office on the first Monday after the first day of January, 1885. The term for which he was elected and qualified was two years. At the general election held in November, 1886, he was re-elected to the same office for the statutory term commencing the first Monday in January, 1887, that being January 3, 1887.
The bond here sued upon was given by Hammond on December 22, 1886, in the penal sum of $ 50,000, conditioned as follows:
" The condition of the above obligation is such that whereas the above- bound principal, El Hammond, was, at a general election held in said state on the second day of November, 1886, duly elected to the office of county tax-collector in and for Los Angeles county and state aforesaid:
" Now, therefore, the condition of this obligation is such, that if the said El Hammond shall well, truly, and faithfully perform all official duties now required of him by law, and shall well, truly, and faithfully execute and perform all the duties of such office of county tax-collector required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect, otherwise," etc.
This bond was duly approved December 27, 1886, but Hammond did not at any time after his said second election take any oath of office.
[42 P. 37] At the expiration of his said first term on January 3, 1887, Hammond was a defaulter in the amount of $ 7,861.86, which moneys were collected by him as such tax-collector during his said first term, upon the general tax-roll, that is, said sum was not only not paid over, but was not in his hands as tax-collector in any form, the same having been appropriated to his own use. Hammond held said office continuously from the time he first entered upon it in January, 1885, until about March 21, 1887, when he absconded.
At the beginning of his said second term the delinquent tax list for the fiscal year 1886-87 was delivered to Hammond for collection, and he was then charged with the amount thereof, viz.: $ 30,016.54. On January 22, 1887, the county auditor served upon him the following demand:
" To El Hammond, Tax-Collector: You will at once pay into the treasury $ 7,861.86, in settlement of the general taxes."
On January 24, 1887, Hammond paid over to the treasurer said sum of $ 7,861.86, but the money so paid was money collected by him upon said delinquent tax list during his second term, that is to say, after January 3, 1887.
The court found the following to be a statement of the condition of Hammond's account for the second term:
| To amount of delinquent tax list | $ 30,016 54 | |
| By taxes double assessed and sold | ||
| to the state | $ 2,472 70 | |
| Paid to county treasurer Feb. 7, | ||
| 1887 | 3,202 76 | |
| Paid to county treasurer March 7, | ||
| 1887 | 7,338 63 | |
| Paid to county treasurer March 25, | ||
| 1887 | 26 40 | |
| Paid to county treasurer March 26, | ||
| 1887 | 66 66 | |
| Paid to county treasurer March 29, | ||
| 1887 | 4 30 | |
| Paid to county treasurer May 2, | ||
| 1887 | 3,941 25 | 17,052 70 |
| Balance due and unpaid | $ 12,963 84 |
The said credits do not include the said sum of $ 7,861.86, paid to the treasurer on January 24, 1887, in compliance with the demand of the auditor.
The plaintiff had judgment for said sum of $ 12,963.70, and interest thereon from November 2, 1887 (at which date the action was commenced), and defendants appeal from said judgment and from an order denying their motion for a new trial.
Upon these facts appellants contend:
1. That Hammond, not having taken the oath of office after his second election, his incumbency after January 3, 1887, was simply a holding over or continuance of his first term under the provisions of section 879 of the Political Code, which provides as follows: "Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified"; that not having qualified or entered upon said office under his second election, the bond in suit never became obligatory, and the action should have been upon the bond given under his first term.
2. That if liable at all, they are not liable for the defalcation or embezzlement committed under the first term, and that, therefore, the $ 7,861.86, part of the sum collected under the second term, and paid to the treasurer January 24, 1887, should be credited upon the collections made in the second term, and should be deducted from the $ 12,963.84 for which the court found them liable.
3. That the incumbent of an office is authorized to continue to discharge its duties until his successor is qualified, and that if he does so, after the expiration of his term, it is not a new term, but a continuation, in effect, of the term under which he entered the office, and that the sureties upon his bond are liable for any official delinquency occurring while he thus holds over his term to the same extent as though the delinquency had occurred during the term for which he was elected, is conceded. (Pol. Code, sec. 959.)
It is also conceded that the fact that Hammond was re-elected to the office of tax-collector, and executed a bond for the faithful discharge of the duties of said office for the second term, did not entitle him to enter upon and hold said office for said second term under said second election without taking the oath of office within the time prescribed by law, and that under such circumstances a vacancy occurred under the provisions of subdivision 9 of section 996 of the Political Code, which would have authorized the appointment of a tax-collector upon the expiration of Hammond's first term. Such vacancy, however, is not of that absolute character such as would be caused by the death of the officer, but exists for the purpose of appointment, though there may be an occupant or incumbent of the office, whether such incumbent be a de facto officer merely or one holding de jure after the expiration of his term and prior to the qualification of his successor. (People v. Ward , 107 Cal. 236.)
As Hammond was elected to succeed himself there was no change in the person of the incumbent when the second term began, and hence, as a matter of fact, the personality of the incumbent after January 3, 1887, could not indicate whether he held over because of his own failure to qualify, or whether he assumed the duties of the office under his second election. If he assumed the office under color of his second election, he was an officer de facto, "and held a vested right to act as such until his right was questioned by some one in a proper proceeding for that purpose." (Hull v. Superior Court , 63 Cal. 174, 177; People v. Toal , 85 Cal. 333, 338.) That Hammond was regularly elected to the office of tax-collector in November, 1886, is not questioned, and that he was so elected must have been generally known. His bond recited his said election, and was given for the term to which he had been elected, the statute fixing the term and its beginning. He is, therefore, estopped by the execution and delivery of his bond and its approval from asserting [42 P. 38] that he did not enter upon said second term by virtue of his said election, or that he simply held over under his first election because of his own failure to take the oath of office for the second term, and his sureties, as well as he, are estopped by the bond which they have executed for the purpose of enabling him to enter upon and exercise the duties of the office from alleging any deficiency in his title to the office, and are therefore estopped from denying that he was a de jure officer under and by virtue of his second election. (Murfree on Official Bonds, secs. 673, 674, and cases there cited.) So in Mechem on Public Offices, section 275, it is said: "But a bond, otherwise valid, is not rendered void by the fact that the officer who gave it was not in all respects lawfully elected or inducted to the office. If he is an officer de facto, exercising the functions of the office, the bond given by him will be binding upon himself and his sureties." In People v. Jenkins , 17 Cal. 500, the court said: "The principal obligor and his sureties are in no condition to question the regularity of the election of the principal, or his responsibility for acts done in an official capacity. The principal had at least the color of office by his appointment, and the bond estops him and his sureties signing it from denying his official character." (See, also, Moore v. Earl , 91 Cal. 632, 636, and cases there cited.)
In State v. Rhoades, 6 Nev. 352, this question was very fully discussed and many authorities cited in the opinion. Rhoades was elected state treasurer to succeed himself, received his certificate of election and took the oath of office, but failed to execute his bond within the time required by law. It was contended for defendants that the term was forfeited under the statute; that Rhoades did not hold the office by virtue of his second election, but held it under the constitutional provision authorizing him to hold over until the qualification of his successor. In response to this contention the court held as follows: "1. That Rhoades relinquished all right to hold office by virtue of his first election; 2. That afterward he was an officer de facto under the election of 1866 [the second election]; 3. Being an officer de facto, he and his sureties are estopped from denying that the bond was legally given; or rather that, so far as the officer and his sureties are concerned, he is to be held an officer de jure ."
So in the case at bar we think it must be held that having executed and delivered his bond for the second term Hammond relinquished all right or claim to hold the office of tax-collector after January 3, 1887, by virtue of his first election, and that he and his sureties are estopped from denying that he was tax-collector de jure, after the date last mentioned, by virtue of his second election.
2. The question of the liability of the defendant sureties for the $ 7,861.86, in which sum Hammond was a defaulter at the close of his first term, and which sum he covered into the treasury by the payments of moneys received by him during his second term, is scarcely an open one. Says Mechem (Mechem on Public Offices, sec. 287): "Where the officer has used moneys coming into his hands officially during the second or other subsequent term, to make good a default committed by him in the first or other prior term, the sureties upon his bond for the second or other subsequent term will be liable, and the fact that the public officers charged with the duty failed to require the officer to account at the close of the prior term, or extended the time for such accounting, or that with knowledge of his default they accepted the bond for the subsequent term, will not relieve the sureties for the subsequent term." And says Throop (Throop on Public Offices, sec. 219): "The general rule is that where a deficiency for one term has been covered up by money received during a second term, the sureties in the bond for the second term are liable for that money."
The cases cited by these writers in support of their text are numerous and uniform, and, indeed, it is not easy to see on principle how a different rule could obtain. If Hammond, for example, had been elected to another office, as that of sheriff, and had used the moneys coming into his hands as such officer, to cover his previous defalcation as tax-collector, no one would doubt but that for such a misuse and conversion his bondsmen would be liable. The fact that he was elected to succeed himself as tax-collector in no way lessened the criminality of his act, or modified his bondsmen's liability therefor. True, the sureties upon his bond for the second term were not liable for any defalcation which occurred during his first term, but they did guarantee to hold the state and county financially harmless against any wrongful act of their principal during his second term. It was the principal's duty, receiving funds during that second term, to make legal application of them. It was no more a legal application for them to apply them to the payment of an earlier defalcation than it would have been in the case instanced, had he done so when filling the office of sheriff.
The moneys received by him, and so misappropriated, were received upon account of delinquent taxes. They should have been paid over by him upon that account. He did not do so, but, to the contrary, after demand requiring him to make good the previous shortage, he took the money which could be by him legally devoted only to payment upon the delinquent tax account, and applied it, by his own affirmative act, to covering that shortage. He was thus guilty of a second embezzlement or conversion, committed during his second term. "Sureties are not released because the collections covered by their bond have been paid into the treasury on account of the tax-collector for the preceding years. Such a disposition was itself as much a misappropriation as if he had devoted it to his private debts." (State v. [42 P. 39] Powell, 40 La. Ann. 234; 8 Am. St. Rep. 522.) "If the funds received during the second term are misapplied to make up for a prior delinquency, the sureties would be liable for that misapplication." (Pine County v. Willard , 39 Minn. 125; 12 Am. St. Rep. 622.)
The rule is different where the duty of the defaulting officer is limited merely to the payment over of moneys, and the superior officer makes disposition of the funds. In such cases, as the duty of the defaulting officer is fulfilled when he makes a general payment to the treasury, or to some superior officer, he cannot be said to have committed any new offense, because that officer, in the exercise of what he deems to be his discretion or power, makes some particular disposition or application of them. Therefore it is that the delinquent officer in such cases, having committed no wrong during his second term, his bondsmen do not become liable for any of his shortcomings committed during a preceding term. Says Murfree (Murfree on Official Bonds, sec. 637): "It is not competent for the superior officials to disregard this obvious rule of justice, and cover the defalcations of one year by appropriations from funds collected during a subsequent year"; and in support of the text is cited Porter v. Stanley , 47 Me. 515; 74 Am. Dec. 501. There a tax-collector was a defaulter, and the selectmen, his superiors, themselves appropriated from moneys received from the tax-collector on later assessments, sufficient to balance the earlier deficiencies, and this appropriation so made by the superiors was held to be manifestly inequitable. In recognition of the same principle was decided the case of the United States v. Eckford, 1 How. 250. There it was the duty of the collector to pay over funds, and the treasury department made disposition and application of them. Say the court: "It is true if the collector shall misapply the public funds, his sureties are responsible; but that is not the question under consideration. The collector does not misapply the funds in his hands, but pays them over to the government, without any special direction as to their application. Can the treasury officers say, under such circumstances, that the funds currently received and paid over shall be appropriated in discharge of the defalcation which occurred long before the sureties were bound for the collector, and, by such appropriation, hold the sureties liable for the amount? The statement of the case is the best refutation of the argument." But these cases and the principle recognized by them are not here in point, for, as has been said, the act was an affirmative act of misapplication and wrongful appropriation, committed, not by another or a superior officer, but by Hammond himself. And, wherever it appears that a new and independent wrong is committed by the officer during his second term, and financial loss follows, the bondsmen of that term are liable.
The case of Anaheim Union Water Co. v. Parker , 101 Cal. 483, so far from being at variance with the principles above set forth, distinctly recognizes them.
The judgment and order appealed from are therefore affirmed.