§ 395 (215). Oath when a Condition Precedent; Acts of de facto Officer. Where the statute requires a prescribed oath of office before any person elected "shall act therein," a person cannot justify as such officer unless he has taken an oath in substantial, not necessarily literal, compliance with the law. Third parties, however, acting in good faith with him as such officer, are protected, notwithstanding his failure to take the requisite oath.' ment is for the protection of the public, and not the principal or sureties. If a bond is executed and delivered to the proper official, it is binding on the sureties, although it is never formally approved by the officer charged with the duty. Ramsay's Estate v. People, 197 Ill. 572, aff'g 97 Ill. App. 283; Green v. Wardwell, 17 Ill. 278. Defence nish sureties, this amounts to a nonacceptance of the trust, although he has taken the oath of office. Morrell v. Sylvester, 1 Me. 248. The giving of a bond and having it approved were held in the case in judgment to be conditions precedent to the right of occupying a municipal office. Howell v. Commonwealth, 97 Pa. St. 332; post, 429, note. Rule in Virginia, to action on official_bond. While it is see infra, § 412, note. Effect of signing official bonds in blank, see Chicago v. Gage (bond of city treasurer), 95 Ill. 593. Mr. Justice Sheldon cites and reviews many of the cases on this subject. Butler v. United States, 21 Wall. (U. S.) 272; Dair v. United States, 16 Wall. (U. S.) 1; Murfree on Official Bonds, §§ 32 et seq., 64, and cases. Acknowledgment held not to be essential to validity of bond of a city collector. People v. Pace, 57 Ill. App. 674. the duty of an officer to perfect his title to his office by complying with the directions of the statute as to taking oath, &c., his failure to do so is no defence to an action on his official bond. St. Helena v. Burton, 35 La. An. 521; State v. Findley, 10 Ohio St. 51; State v. Toomer, 7 Rich. (S. Car.) Law, 216. Refusal to serve. Failure of town collector to take oath within time prescribed by statute deemed a refusal to serve, and justifying the filling of the office as in case of a vacancy. People v. Callaghan, 83 Ill. 128, 135. Under a statutory authority to the city council to declare an office vacant for failure to give bond, the council must first take action before an office is vacated. The office is not vacated until such action be taken. Kriseler v. Le Valley, 122 Mich. 576. 1 Olney v. Pearce, 1 R. I. 292, and authorities cited by Mr. Angell in note; Riddle v. Bedford County, 7 Serg. & Rawle (Pa.), 386, 392; Neale v. Ällegheny Overseers, 5 Whart. (Pa.) 538 ; Hayter v. Benner, 67 N. J. L. 359; Douglass v. Essex County, 38 N. J. L. 214; Manahan v. Watts, 64 N. J. L. 465, 473; Johnson v. Mann, 77 Va. 265; Branham v. Long, 78 Va. 352: Hecht v. Coale, 93 Md. 692 (bond of Approval of bond. A duly elected officer, who has tendered a sufficient bond, cannot be prevented from holding office by the neglect of the city council to approve it within the time prescribed by law. State v. Barnes, 51 Kan. 688. See also Matter of Fitzgerald, 88 N. Y. App. Div. 434. Recognition of the appointment by treating the officer as legally holding office, voting him his pay, &c., implies an approval of the bond. People v. Blair, 82 Ill. App. 570, 580; Bartlett v. Freeport School Board, 59 Ill. 364. Mandamus will lie to compel the city council to act upon the sufficiency of the sureties offered. The council cannot refuse to perform this duty because title to the office is elsewhere disputed. Commonwealth v. City city treasurer). See also State v. Kraft, Council of Philadelphia, 7 Am. Law Reg. N. s. 362; Speed v. Detroit, 97 Mich. 198. Mandamus issued to compel city comptroller to approve bond of superintendent of water works. State v. Shannon, 133 Mo. 139. But a requirement of approval of the bond by some representative of the govern 20 Oreg. 28. Where an officer, before acting, is required to qualify by taking an oath of office, he has no legal right, until he qualifies, to recover fees of an incumbent received after the plaintiff's appointment or election, and before he qualifies. Thompson v. Nicholson, 12 Rob. (La.) 326. See Philadelphia v. § 396 (216). Conditions of Official Bond; Voluntary and Common-Law Obligations. The principle is well settled, that official bonds are valid if the condition complies substantially with the requirements of the statute. The exact form prescribed is not essential unless made so by the charter or act.1 Duties of a nature and character similar to those belonging to the office may be added to it or imposed upon an officer; and these are held to be within the contemplation and the liability of obligors upon the bond. As such Given, 60 Pa. St. 136; supra, § 394, note; post, § 429. If members of a common council, who are required by the charter to be sworn before they enter on the duties of their office, are sworn before an officer not authorized to administer the oath, they are still officers de facto, and a tax levied by them is not invalid, and will not be set aside even in a direct proceeding. State v. Perkins, 24 N. J. L. 409; infra, §§ 396, note, 413, note, 422, note, 518, note. Bond of de facto officer binding upon him and his sureties. Green v. Wardwell, 17 Ill. 278; infra, § 396, note; Murfree, Official Bonds, §§ 70, 71. But this principle does not apply where there is no office de jure. Tinsley v. Kirby, 17 S. Car. 1, 8; post, § 518. police to office is not affected by the fact that he took his oath of office before a notary public rather than before a warden of the borough authorized by the charter to administer the oath. State v. Kennedy, 69 Conn. 220. Allegheny County v. Van Campen, 3 Wend. (N. Y.) 49; People v. Holmes, 2 Wend. (N. Y.) 281; Ib. 615; Fellows v. Gilman, 4 Wend. (N. Y.) 414; Lawton v. Erwin, 9 Wend. (N. Y.) 233; Cornell v. Barnes, 1 Denio (N. Y.), 35; Philipsburg v. Degenhart, 30 Mont. 299; Tumwater v. Hardt, 28 Wash. 684. See also Houston v. Estes, 35 Tex. Civ. App. 99. Bond without seals held valid as a common law obligation. Board of Education v. Fonda, 77 N. Y. 350; s. p. United States v. Linn, 15 Pet. (U. S.) 290; United States v. Hodson, 10 Wall. (U. S.) 395; Skellinger v. Yendes, 12 Wend. (N. Y.) 306; Morse v. Hodsden, 5 Mass. 314, 318; Thomas v. White, 12 Mass. 369; Bank v. Smith, 5 Allen (Mass.), 415. So a bond without any specified obligee. Fellows v. Gilman, 4 Wend. (N. Y.) 414, 419. When the ordinance requires the city treasurer to give bond to "fulfil the duties" which may be required of him by law, a bond conditioned only to account for moneys received by him is not a substantial compliance. Hecht v. Coale, 93 Md. 692. An act of Congress provided that paymasters should, "previous to entering upon the duties of their office, give good and sufficient bonds," &c. It was held that an appointment as paymaster was complete when made by the President and confirmed by the senate; that the giving of the bond was a mere ministerial act for the security of the government, and not a condition precedent to his authority to act as paymaster; and that a recital in the bond of the appointment estops the principal and sureties to deny the fact. United States v. Bradley, 10 Pet. (U. S.) 343; and see also United States Bank v. 2 Board, &c. of Auburn v. Quick, 99 Dandridge, 12 Wheat. 64. Sureties of N. Y. 138; People v. Vilas, 36 N. Y. municipal treasurer were estopped to 459, and cases cited; Mayor, &c. of show that the election of the treasurer New York v. Kelly, 98 N. Y. 467 See was unauthorized because the time of also Board of Supervisors v. Clark, 92 the election had not been fixed and the N. Y. 391. It is competent for the legduties of the office prescribed by ordi- islature, in exacting official bonds and nance. Paducah v. Cully, 9 Bush (Ky.), prescribing their conditions, to require 323; and see post, § 396, note. Manda- that they shall be conditioned for the mus will lie to compel mayor to ad- faithful performance of all duties that minister oath of office to police captain may be imposed by subsequent statutes duly elected who presents himself during the officer's continuance in within five days after election, as re- office; and this having been done by a quired by city code. Huey v. Jones general statute, the sureties on 140 Ala. 479. The title of a chief of official bond, conditioned as required an bonds are intended to secure the public, the courts do not favor mere technical defences. Accordingly, actions have been sustained on bonds not required by law, when executed voluntarily, and with proper conditions, to secure the performance of official duty.' And when required by law, bonds are good, as common-law obligations, though they do not conform to the statute, if they contain no condition contrary to law. In such case the obligor voluntarily agrees to make the obligee named a trustee for the persons interested in the due performance of the condition. Thus, an action may be main by the statute, are liable for their principal's default in reference to additional duties subsequently imposed, unless the statute imposing such duties shows an intention that they shall not be so liable. Morrow v. Wood, 56 Ala. 1; infra, §§ 422, 426. In Orman v. Pueblo, 8 Colo. 292, Helm, J., enumerated the following propositions concerning the liability of sureties upon official bonds as elementary: "First, that the sureties on such bonds enter into contract thereof with reference to existing statutes on the subject, and that therefore the law becomes a part of the contract. Second, that the engagement or the obligation of the surety cannot be extended beyond the strict terms of the bond. Third, that when a breach thereof is assigned and an attempt is made to hold the surety, such breach must be based upon some official misconduct on the part of the principal." --- In was approved by the common council, Supra, § 394 note; PostmasterGeneral v. Rice, Gilpin, 554; Montville v. Haughton, 7 Conn. 543; Commonwealth v. Wolbert, 6 Binney, 292; Baby v. Baby, 8 Upper Can. Q. B. 76; Anderson v. Blair, 118 Ga. 211. A bond made by a fidelity and guaranty company to the authorities of a municipal corporation to guarantee the city against the fraud and dishonesty of its treasurer, which did not comply with the statutory requirements, held to be a voluntary bond on which a recovery must be confined to a breach of its terms, and cannot be had under the terms of the statute. Brunswick v. Harvey, 114 Ga. 733. If an officer is required to furnish an official bond and in lieu thereof gives a voluntary bond to a person different from the one prescribed by statute, the person to whom the bond should be given by law cannot maintain an action thereon in an official capacity, nor can his successor in office do so. The only person who can maintain an action is the obligee named in the bond or his personal representatives to the use of the person aggrieved. Anderson v. Blair, 118 Ga. 211. So under the laws of Indiana, providing for the issuance and sale of bonds to complete water works, it is the duty of the common council, and not of the city treasurer, to negotiate and sell such bonds; but the city treasurer is liable on his official bond for moneys received by him from the sale thereof, by whomsoever made. Such duty cannot be delegated by the council, by ordinance or otherwise, to the treasurer or any other person. Under an ordinance designating the city treasurer by name as agent for the sale of such bonds, his acts in negotiating such sales are simply those of an agent of the common council; and he is not liable on his official bond for the mere sale, assignment, and delivery thereof by him pursuant to such agency. In an action on his official bond for moneys alleged to have been received by him as such treasurer, an answer that by 2 Thomas v. White, 12 Mass. 369; the terms of the negotiation, which 5 Mass. 314; Kavanaugh v. Sanders, tained on a bond given to the "selectmen" instead of to the "town," by a town treasurer, conditioned for the faithful performance of his duties.1 8 Me. 442; Sweetzer v. Hay, 2 Gray (Mass.), 49, and cases there cited; Smith v. Wingate, 61 Tex. 54; Sutherland v. Carr, 85 Ñ. Y. 105; Barnet v. Abbott, 53 Vt. 120 (bond executed near the close of an oificer's term of office, but antedated, to cover the entire term, held good); People v. Pace, 57 Ill. App. 674; Coons v. People, 76 Ill. 383; Ramsay's Estate v. People, 197 Ill. 572, 590; Longan v. Taylor, 130 Ill. 412; Hoboken v. Harrison, 30 N. J. L. 73; Camden v. Greenwald, 65 N. J. M. 458, 463. See also Fond du Lac v. Moore, 58 Wis. 170. 1 Sweetzer v. Hay, 2 Gray (Mass.), 49; Horn v. Whittier, 6 N. H. 88. A bond given by the treasurer of a county for the faithful performance of his official duties, to the board of supervisors of the same county, is a good and valid bond, notwithstanding there may be no statute requiring one. St. Joseph County Supervisors v. Coffenbury, 1 Mich. 355; People v. Johr, 22 Mich. 461; Platteville v. Hooper, 63 Wis. 381. The fact that there is already a valid official bond with solvent sureties does not preclude a county court from taking from a delinquent county officer, by way of security for his delinquency, a bond and mortgage on real estate. Turner v. Clark Co., 67 Mo. 243. Municipal corporations may sue on official bonds of public officers when interested therein. State v. Norwood, 12 Md. 177. In an action on the official bond of an officer appointed by a municipal corporation, reciting the appointment of the principal as such officer, neither he nor his sureties can set up the invalidity of his appointment as a defence to an action for moneys collected. Hoboken v. Harrison, 30 N. J. L. 73; Seiple v. Elizabeth, 27 N. J. L. 407; supra, § 395, note. Sureties on official bond of de facto municipal officer are liable for moneys collected by him; and this though he held an office which in point of fact the corporation could not create. Hoboken v. Harrison, 30 N. J. L. 73, supra; supra, $395, note; post, §§ 413, note, 422, note. A surety in an official bond of an officer whose term is limited to a year is not liable beyond the year, though the officer continues by law until a suc cessor is provided. Dover v. Twombly, 42 N. H. 59; Chelmsford Co. v. Demarest, 7 Gray (Mass.), 1; Wilmington v. Horn, 2 Harring. (Del.) 190; Regina v. McRae, 5 Upper Can. P. R. 309; Montgomery v. Hughes, 65 Ala. 201; Camden v. Greenwald, 65 N. J. L. 458; Ballard v. Thompson, 21 Wash. 669. A change in a statute by which the time for the annual settlements of county collectors is fixed a month later, and additional time is allowed in which to pay after settlement, releases the sureties on a collector's bond executed before the change. The effect is to postpone the State's right of action against the collector. The rule that an extension of time given the principal releases the surety applies between the State and an individual. State v. Roberts, 68 Mo. 234. Sureties upon an official bond are not liable for a defalcation of their principal, occurring during a term preceding that for which the bond was given. Paducah v. Cully, 9 Bush (Ky.), 323; Bissell v. Saxton, 77 N. Y. 191; Myers v. United States, 1 McLean, 493; Mahaska v. Ingalls, 16 Iowa, 81; Townsend v. Everett, 4 Ala. 607; United States v. Boyd, 5 How. 29, 50; Bruce v. United States, 11 How. (U. S.) 437; McIntyre v. School Trustees, 3 Ill. App. 77; Arlington v. Merrick, 2 Saund. 403; Overacre v. Garrett, 5 Lans. 156; Rochester v. Randall, 105 Mass. 295; Bamford v. Iles, 3 Exch. 380; Austin v. French, 7 Met. 126; Kingston Ins. Co. v. Decker, 33 Barb. (N. Y.) 196; Dedham Bank v. Chickering, 3 Pick. (Mass.) 335; Blake v. Buffalo, &c., 56 N. Y. 485; McClusky v. Cromwell, 11 N. Y. 598; Miller v. Stewart, 9 Wheat. (U. S.) 680, 702; Stern v. People, 76 Ill. 475; Goodwine v. State, 81 Ind. 109, where a city treasurer served two successive terms under bonds, with the same sureties on each bond, it was presumed, in a suit upon the second bond, that at the time it was given, he was in possession of all the money which he should have had, if an accounting had been had, and he and his sureties were held liable therefor. Bernhard v. Wyandotte, 33 Kan. 465; and see Hartford v. Franey, 47 Conn. 76. And where a collector, holding office for three suc Following upon § 397. Constitutionality of Civil Service Laws. the enactment of a Civil Service Law by the Federal Congress, similar statutes have been enacted in some States. Recognizing the fact that the duties connected with the majority of offices in both the Federal and State governments and in municipalities are in no sense political, and that a proper performance of those duties would give no one the least idea whether the incumbent of the office were a member of one political party or another, these statutes were enacted for the purpose of giving some assurance to the citizens, cessive years, and giving a different bond it was executed before the appointment each year, was delinquent, and there to office was made. Essex v. Strong, 8 was no evidence showing the time when Upper Can. L. J. 15; s. c. 21 Upper the deficit occurred, it was held that Can. Q. B. 149. The imposition of adthe loss should be divided between the ditional taxes to those assessed at the three bonds in proportion to the sums time of taking the security and the incollected during the time for which each crease of risk thereby has been held not bond was given. Phipsburg v. Dickin- to violate a bond given for the general son, 78 Me. 457. But in California, in performance of duties and payment of a similar case, it was held that, in moneys. Beverley v. Barlow, 10 Upper absence of evidence to the contrary, Can. C. P. 178; s. c. 7 Upper Can. L. J. the presumption is that the misappro- 117. Nor is it a defence that the money priation happened at the end of the received by the treasurer was not delast term, for which the sureties on the manded by the government, which was last bond are liable. Heppe v. Johnson, entitled thereto. Essex v. Park, 11 73 Cal. 265. To the same effect, Stoner Upper Can. C. P. 473. Nor are irreguv. Keith County, 48 Neb. 279, 292. As larities in the mode of appointment a to a breach of an official bond, see La defence. Whitby v. Harrison, 18 Pointe v. O'Malley, 46 Wis. 35. A Upper Can. Q. B. 603; Whitby v. bond conditioned for the performance Flint, 9 Upper Can. C. P. 449; Todd v. of official duties during a specified term Perry et al., 20 Upper Can. Q. B. 649. and "until his successor is appointed" will only hold the surety for a reasonable time after the expiration of the term. Rahway v. Crowell, 40 N. J. L. 207; Camden v. Greenwald, 65 N. J. L. 458. See also King County v. Ferry, 5 Wash. 536; Ballard v. Thompson, 21 Wash. 669. But an express provision continuing the bond in force for "succeeding terms" is sufficient to hold the surety during any hold over term. Camden v. Greenwald, 65 N. J. L. 458; Augero v. Keen, 1 M. & W. 390; Berwick v. Oswald, 1 E. & B. 295; 3 E. & B. 653; 5 H. L. Cas. 856. Where the village clerk had, by custom, been recognized as secretary of the water board of the village, a separate and distinct office, and no term was prescribed for the office of secretary, it was held that his sureties on his bond as secretary were liable for default occurring during an incumbency of the office while holding over as village clerk for a second term without reappointment. Laurium v. Mills, 129 Mich. 536. It is no objection to the bond that Estoppel. The sureties of a bond have been held to be estopped from contesting the validity of the bond, and the authority of the principal to receive the money for the following matters when within the tenor, or recitals of the instrument, viz.: sales of lands for taxes and the receipt of money therefor, Coons v. People, 76 Ill. 383; the invalidity of the appointment of the principal to office, Hoboken v. Harrison, 30 N. J. L. 73; the validity of ordinances under which a city clerk received license moneys, Middleton v. State, 120 Ind. 166; that money received under color of the office was so received without any authority on the city to collect or receive it. Philipsburg v. Degenhart, 30 Mont. 299; Sutherland v. Carr, 85 N. Y. 105; Wylie v. Gallagher, 46 Pa. St. 205; Boehmer v. Schuylkill County, 46 Pa. 452; Heppe v. Johnson, 73 Cal. 265. See also Whitby v. Harrison, 1 Upper Can. Q. B. Rep. 603; Whitby v. Flint, 9 Upper Can. Ĉ. P. 449; Todd v. Perry, 20 Upper Can. Q. B. Rep. 649. |