The right to a pension depends upon the occurrence of the contingencies specified in the statute. These differ greatly, and no general rule can be laid down to determine their application.1 One of the contingencies upon which the right to a pension is made to accrue with practical uniformity is that the officer should at the time of his death or retirement be in the service of the municipality. If he has been wrongfully discharged or removed from office, he is not entitled to a pension until reinstated. When the right to a pension The widow of a policeman who is killed in a railroad accident is not entitled to payment from a police insurance fund under a statute providing for such payment to the widows of policemen who shall, after ten years of service, die "from natural causes. Death "from natural causes imports that the death occurred from disease, and does not include death through external violence or human agency. Slevin v. Police Fund Com'rs, 123 Cal. 130. A fireman is not "fatally injured while in the performance of his duties" when his death is caused by falling from a trolley car while on his way from the fire-house to his home during meal hours. Scott v. Jersey City, 68 N. J. L. 687. The permanent official status of the officer determines the right to a pension and its amount. The fact that he has been assigned to perform the duties of a higher office does not entitle him to be retired and to receive a pension as if he held such higher office. Fay v. Partridge, 78 N. Y. App. Div. 204. Person appointed to temporary duty and not as regular member of fire department, held not to be entitled to pension under statute. State v. Trustees of Firemen's Pension Fund, 18 Ohio Cir. Ct. 887 Policeman who committed suicide while insane held not to have died in the discharge of his duties, there being no evidence that the insanity resulted from the discharge of his duties. Hutchens v. Covert, 39 Ind. App. 382; 78 N. E. Rep. 1061. The phrase "unfit for duty" in a statute authorizing the compulsory retirement of police officers on a pension, held to mean their inability to discharge with average efficiency the duties of the respective grades to which they belong. The fact, therefore, that a policeman is unable to perform full police duty, or every conceivable duty, does not of itself render him liable to retirement. State v. McAdoo, 184 N. Y. 268, aff'g 109 N. Y. App. Div. 892. Submission to voters of town of question whether teachers who have served twenty-five years shall receive pension, see People v. Haughran, 55 N. Y. App. Div. 118, aff'g 29 N. Y. Misc. 440. 2 McGann v. Harris, 114 Ill. App. 308; People v. Police Pension Fund Com'rs, 116 Ill. App. 252; Price v. St. Louis Police Relief Assoc., 90 Mo. App. 210; People v. French, 108 N. Y. 105; People v. Partridge, 172 N. Y. 305, rev'g 74 N. Y. App. Div. 620; Karb v. State, 54 Ohio St. 383; State v. Trustees of Policemen's Pension Fund, 123 Wis. 245. If the officer or employee is, on his position being abolished or becoming unnecessary, merely "suspended without pay," and entitled to reinstatement in the same office, position, or employment, or in any corresponding office, position, or employment, if his services are needed within one year, he still remains in the service of the city, and, in the event of his death within a year, his widow is entitled to a pension. Reidy v. New York, 185 N. Y. 141, rev'g 103 N. Y. App. Div. 361. The fact that deductions have been made from the salary of a chief of police as contributions to a pension fund and that if permitted to serve two years longer he would be entitled to retire on a pension, does not prevent the legislature from abolishing the office of chief of police. If he has any vested rights to a pension beyond the power of legislative interference, he may still assert these rights notwithstanding the abolition of his office. People v. Coler, 173 N. Y. 103, aff'g 71 N. Y. App. Div. 584. A right to a pension conferred by statute does not limit or affect the power of the legislature to authorize the discharge or removal of the officer, or to make the decision of the removing power as to the existence and sufficiency of the grounds of removal final and binding on the removed officer. People v. Peck, 73 N. Y. App. Div. 89. Nor does it prevent the muni has accrued by the occurrence of a statutory contingency, the right continues until it is terminated in the manner prescribed by the statute. It will not terminate for any reasons other than those prescribed by the statute, however anomalous the result may be. Thus a person who is drawing a pension from a city as a retired police officer, who became the officer in an adjoining municipality and as such was transferred to the police force of the city upon the annexation of the adjoining municipality to the city, was held to be entitled under the legislation both to retain his status as a police officer as a result of the transfer and the pension granted to him upon his former retirement.' Where the board or commissioner having control of the department has wrongfully retired an officer upon a pension, acceptance of a pension accompanied by other acts indicating an intention on the part of the officer so wrongfully removed to acquiesce in the action of the board or commission, were under the circumstances held to estop him from thereafter claiming that his removal was wrongful and seeking to be reinstated.2 § 433 (236). Liability of the Officer to the Corporation and to Others. Public officers (as distinguished from corporate officers), elected pursuant to statute by a municipal corporation, are not the servants or agents of the corporation in such a sense as will enable the corporation, in the absence of a statute giving the remedy, to cipal authorities from abolishing the position and dispensing with the services of the officer from motives of economy, or because his services are unnecessary. Lazenby v. Elmira Police Board, 76 N. Y. App. Div. 171. In People v. York, 41 N. Y. App. Div. 419, a sergeant on the police force of New York was retired on a pension in 1893. He subsequently became captain of the police in an adjoining town. That town was annexed to the city of Brooklyn, and he then became a patrolman upon the police force of Brooklyn. In 1897 Brooklyn was annexed to New York, and the officer was transferred to the police force of the city of New York. It was held that as the statute granting him the pension from the city of New York did not limit the character of the employment in which the pensioner might engage, and there was no statutory provision prohibiting him from again accepting employment upon the police force of New York, or providing that upon such acceptance his rights as a pensioner should be forfeited, he was not obliged, upon being transferred to New York, to renounce either his employment or his pension, but was entitled to retain both. 2 In People__v. Yonkers Police Com'rs, 174 Ñ. Y. 450, rev'g 79 N. Y. App. Div. 82, it was held, on an application for mandamus to compel the reinstatement of a captain of police, that evidence of the following facts was competent as tending to show acquiescence in the action of the board in retiring him on a pension, viz., (1) failure to protest against the action of the board for upwards of three months while knowing the ground of removal; (2) receipt of pension money in the interim; (3) surrender of the police paraphernalia; (4) promptly seeking and obtaining employment elsewhere; (5) silence upon his part, although aware of the fact that steps were being taken to fill his place which would be likely to further embarrass legal proceedings taken to reinstate him. maintain actions against such officers for negligence in the discharge of their official duty. This principle does not, it is believed, apply where the corporation is injured by the negligence of its own officers; but even in such case the recovery in the absence of statute can only be for want of fidelity and integrity, not for honest mistakes.1 To protect the public, however, officers are usually required to give bonds, in which case they are of course liable, as we have seen, according to the conditions thereof." They are also liable on commonlaw principles to individuals who sustain special damage from the negligent or wrongful failure to perform imperative and ministerial duties.3 69. Grant, 470; Chatham v. Houston, 27 Upper Can. Q. B. 550; Thomas v. Wilson, 20 Upper Can. Q. B. 331; of treasurer for paying money on an illegal order or resolution. Daniels v. Burford, 10 Upper Can. Q. B. 478. 2 Supra, §§ 394-396. 3 Infra, § 441, note and cases; post, chapter on Actions. SUITS BY PUBLIC OFFICERS. - Public officers have, in general, a power to sue commensurate with their duties. If officers of a corporate body, suit should be brought in the name of the corporation, unless the statute direct otherwise. Shook v. State, 6 Ind. 113; State v. Rush, 7 Ind. 221; Galway County Supervisors v. Stimson, 4 Hill (N. Y.), 136, and cases cited; Todd v. Birdsall, 1 Cow. (N. Y.) 260, and cases cited in note; Jansen v. Ostrander, 1 Cow. (N. Y.) 670; Cornell v. Guilford, 1 Denio (N. Y.), 510; compare Canal Fund Commissioners v. Perry, 5 Ohio, 57; Barney v. Bush, 9 Ala. 345; Van Keuren v. Johnson, 3 Denio, 182; Tecumseh v. Phillips, 5 Neb. 305; University of Nebraska v. McConnell, 5 Neb. 423. But it has been held that a public officer cannot, without the aid of 1 Parish in Sherburne v. Fiske, 8 Cush. (Mass.) 264, 266, opinion by Dewey, J., cites White v. Philipson, 10 Met. (Mass.) 108; Trafton v. Alfred, 15 Me. 258; Kendall v. Stokes, 3 How. (U.S.) 87; Commonwealth v. Genther, 17 Serg. & Rawle (Pa.), 135; Wilson v. Mayor, &c. of New York, 1 Denio (N. Y.), 595; Hancock v. Hazzard, 12 Cush. (Mass.) 112; Lincoln v. Chapin, 132 Mass. 470; Minor v. Mechanics' Bank of Alexandria, 1 Pet. (U. S.) 46, Each officer of the municipality who participates in a misapplication of the corporate funds or property is individually liable therefor. Blair v. Lantry, 21 Neb. 247; Dickinson Township v. Linn, 36 Pa. St. 431. Where a surveyor of highways has, by law, a discretion as to the kind of repairs, and exercises his best judgment and acts in good faith, the corporation for which he acts is bound, and cannot defeat a recovery for the price of materials furnished, by evidence to show that the repairs were not, in fact, necessary. But it would be otherwise if fraud or corruption were shown. Palmer v. Carroll, 24 N. H. 314. See also People v. Lewis, 7 Johns. (N. Y.) 73; Seaman v. Patten, 2 Caines (N. Y.), 312. In an action against a statute, maintain a suit in his own county supervisors to recover money illegally allowed for claims, the complaint should aver the nature of the claims it should be brought by the legal officer of the county, but if by a taxpayer, the complaint should allege facts showing the officer's neglect or refusal to act. Hedges v. Dam, 72 Cal. 520. Personal liability of municipal councillors to the corporation for misappropriation of its funds, see Municipality of East Nissouri v. Horseman, 16 Upper Can. Q. B. 588; Patterson v. Bowes, 4 name, although he may have taken a $434. Liability to account for Moneys received. A public or municipal officer who has received public money and is required to pay it over, becomes a debtor and accountant in respect to the moneys so received, is bound to pay over an amount equal to that which he has received, and is not a mere bailee only responsible for reasonable care. Nothing will excuse him from accounting and paying over the money except overruling necessity or the act of the public enemy. He is generally held liable, unless the rule is relaxed by statute, for the money so received by him, although it has been stolen from him without his fault,' or although he has de Dugan v. United States, 3 Wheat. 172; S. P. United States v. Boice, 2 McLean, 352; United States v. Barker, 2 Paine C. Ct. 152; 2 Parsons on Notes and Bills, 451, and other cases cited. An action by a public officer does not abate by the expiration of his term of office. The suit may be continued in his name until its termination, or by the practice in many of the States, his successor may be substituted. Kellar v. Savage, 20 Me. 199; Todd v. Birdsall, 1 Cow. (N. Y.) 260; Haynes v. Covington, 21 Miss. 408; Grant v. Fancher, 5 Cow. (N. Y.) 309; Colegrove v. Breed, 2 Denio (N. Y.), 125; Manchester v. Herrington, 10 N. Y. 164; Upton v. Starr, 3 Ind. 538; Denver v. Dean, 10 Colo. 375. Officers cannot be impleaded as individuals for acts done in the ordinary exercise of their corporate powers. They cannot be held to responsibility in such a suit. It belongs to the corporation itself to defend the valid ity of these acts. Smith v. Stephan, 66 Md. 381 (injunction against officers, as individuals, to restrain them from issuing funding bonds, as authorized by law, denied). United States v. Prescott, 3 How. (U. S.) 578; United States v. Morgan, 11 How. (U. S.) 154, 158; Boyden v. United States, 13 Wall. (U. S.) 17, 21; United States v. Bryan, 82 Fed. Rep. 290; United States v. Zabriskie, 87 Fed. Rep. 714; Pond v. United States, 111 Fed. Rep. 989; Clay County v. Simonsen, 1 Dak. Ter. 403, aff'd 2 Dak. Ter. 112; Thompson v. Board of Trustees, 30 Ill. 99; Halbert v. State, 22 Ind. 125; Morbeck v. State, 28 Ind. 86; Rock v. Stinger, 36 Ind. 346; Linville v. Leininger, 72 Ind. 491; Taylor Dist. Township v. Morton, 37 Iowa, 550; Hunt v. Hopley, 120 Iowa, 695, 700; Commonwealth v. Godshaw, 92 Ky. 435; Egremont v. Benjamin, 125 Mass. But 15; Hancock v. Hazzard, 12 Cush. (Mass.) 112; Bristol v. Johnson, 34 Mich. 123; Hennepin County v. Jones, 18 Minn. 199; McLeod County v. Gilbert, 19 Minn. 214; Redwood County v. Tower, 28 Minn. 45; Pine Island Board of Education v. Jewell, 44 Minn. 427; Arnold v. State, 77 Miss. 463; State v. Gatzweiler, 49 Mo. 17, 26; State v. Sheldon, 10 Neb. 452; State v. Nevin, 19 Nev. 162; New Providence v. McEachron, 33 N. J. L. 339, aff'd 35 N. J. L. 528; United States v. Watts, 1 N. Mex. 553; Johnstown v. Rodgers, 20 N. Y. Misc. 262; Muzzy v. Shattuck, 1 Denio (N. Y.), 233; State v. Harper, 6 Ohio St. 607; Commonwealth v. Comly, 3 Pa. St. 372; Boggs v. State, 46 Tex. 10. Contra: Healdsburg v. Mulligan, 113 Cal. 205; Sonoma County v. Stofen, 125 Cal. 32; Cumberland County v. Pennell, 69 Me. 357. when the condition of the bond only is that the officer will exercise "reasonable diligence and care," the robbery of the officer without fault on his part will release the officer. Ross v. Hatch, 5 Iowa, 149. In Alabama, it has been held that if the duty of the treasurer or other officer receiving the money is to pay over the identical funds received by him, he is a bailee held to a high degree of care, and robbery by overpow ering violence is a defence to an action against him for failure to pay over. State v. Houston, 78 Ala. 576; s. c. 83 Ala. 361. But, if instead of paying over the money as received, he deposits it in a bank, reputed to be solvent, failure of the bank does not relieve him from liability. Alston v. State, 92 Ala. 124. The fact that the money was embezzled by a clerk appointed under the civil service laws does not relieve the officer from liability. United States v. Bryan, 82 Fed. Rep. 290, aff'd 90 Fed. Rep. 473. posited it, without being thereunto authorized by law, in a bank which was generally recognized as a solvent institution, but which, since the deposit, has become insolvent and the money has been lost without any fault on his part,' or although the money has been See 1 Alston v. State, 92 Ala. 124; Parks made the deposit when the funds were v. Bryant, 142 Ala. 627; Croft v. State, not in fact subject to the control and 24 Ark. 550; State v. Wood, 51 Ark. direction of the officers upon whose 205; Gartley v. People, 24 Colo. 155 advice he made the deposit. Halbert (distinguishing Wilson v. People, 19 v. State, 22 Ind. 125; Inglis v. State, Colo. 199); Ramsay's Estate v. People, 61 Ind. 212. If, however, the officer is 197 Ill. 572, 587, aff'g 97 Ill. App. 283; required or authorized by law to deposit Swift v. Sangamon County School the money in a designated depositary, Trustees, 189 Ill. 584, aff'g 91 Ill. App. he is usually protected from further 221; Inglis v. State, 61 Ind. 212; responsibility and is not a guarantor of McClelland v. State, 138 Ind. 321; the safety of the deposit. Perley_v. Morgan v. Long, 29 Iowa, 434; Bluff Muskegon County, 32 Mich. 132. Creek Dist. Township v. Hardinbrook, also State v. Bobleter, 83 Minn. 479. 40 Iowa, 130; Lowry v. Polk County, 51 Iowa, 50; Rose v. Douglas Township, 52 Kan. 451; State v. Bobleter, 83 Minn. 479; Northern Pac. R. Co. v. Owens, 86 Minn. 188; Griffin v. Mississippi Levee Com'rs, 71 Miss. 767; State v. Gates, 67 Mo. 139; State v. Powell, 67 Mo. 395; State v. Moore, 74 Mo. 413; State v. Rubey, 77 Mo. 610, 617; Ward v. School District, 10 Neb. 293; State v. Hill, 47 Neb. 456; Bush v. Johnson County, 48 Neb. 1; Tillinghast v. Merrill, 151 N. Y. 135, aff'g 77 Hun (N. Y.), 481; Chittenden v. Wurster, 152 N. Y. 345, 361; Oneida v. Thompson, 92 Hun (N. Y.), 16; Havens v. Lathene, 75 N. Car. 505; Nason v. Poor Directors, 126 Pa. 445; Commonwealth v. Baily, 129 Pa. 480; Boggs v. State, 46 Tex. 10; Wilson v. Wichita County, 67 Tex. 647; McKinney v. Robinson, 84 Tex. 489; Fairchild v. Hedges, 14 Wash. 117; Omro v. Kaime, 39 Wis. 468. Contra: Livingston v. Woods, 20 Mont. 91 (overruling Jefferson County v. Lineberger, 3 Mont. 231); York County v. Watson, 15 S. Car. 1; Peck v. James, 3 Head (Tenn.), 75; State v. Copeland, 96 Tenn. 296; State v. Ridley, 114 Tenn. 508; State v. Gramm, 7 Wyo. 329. The officer cannot escape liability on the ground that the municipality failed to furnish him with a safe place to keep the money in consequence of which he was obliged to deposit it in bank for safe keeping. Lowry v. Polk County, 51 Iowa, 50. The fact that the money was deposited in a bank by the advice and with the approval of superior officers does not relieve the officer who In Ohio, it has been held that the legislature may constitutionally provide for the relief of the officer from loss without fault. Board of Education v. McLandsborough, 36 Ohio St. 227; State v. Board of Education, 38 Ohio St. 3. But in Indiana, a contrary view seems to have been adopted, and it has been held that the legislature cannot provide for the reimbursement of an officer who has lost moneys through the failure of the bank in which they were deposited; McClelland v. State, 138 Ind. 221 (distinguishing and overruling Mount v. State, 90 Ind. 29); or by a statute releasing a county treasurer and his bondsman from liability on the bond for moneys so lost, because such statute impairs the obligation of a contract. Johnson v. Randolph County, 140 Ind. 152. To the same effect, State v. Gatzweiler, 49 Mo. 17; but quære? See ante, chap. iv. as to scope of legislative power. In Michigan it has been held that a statute authorizing taxation to reimburse an officer for moneys paid to the municipality to make good public money is unconstitutional. Bristol v. Johnson, 34 Mich. 123. Vote of a school district and of the board of education thereof, to discharge the legal obligation of the school district treasurer for moneys lost by him through burglary, held to be without consideration and ineffectual. Pine Island Board of Education v. Jewell, 44 Minn. 427. As to power of county commissioners to compromise and settle claim against county treasurer for moneys stolen from him, see Jefferson County v. Lineberger, 3 Mont. 231: |