CHAPTER XII.

OF THE RIGHTS OF THE PUBLIC AGAINST THE OFFICER.

§ 908. In general.-The rights of the public, viewed collec tively, against the officer are numerous and many of them obvi ous. It has a right to insist that he shall do his duty,—that he will be faithful and honest, that he will protect and preserve the rights and interests entrusted to his care, that he will exercise due diligence and wisdom in the exercise of his functions, that he will enforce the prerogatives and observe the limitations which the law attaches to his office, and that, upon the expiration of his term, he will surrender his trust with all of its rights and incidents to him who has been lawfully chosen to succeed him.

Remedies of various kinds for the enforcement of these rights exist, in the power of removal, of impeachment, and of the election of a successor. These, however, are for consideration in another place.

Certain other rights growing out of the agency relation of the officer and the public exist, and are here to be considered. These, chiefly, are, 1. The duty of the officer to account for moneys received; and, 2. The duty of the officer to account for public property.

I.

DUTY TO ACCOUNT FOR PUBLIC FUNDS.

§ 909. In general.—It is the duty of the public officer, like any other agent or trustee, although not declared by express statute, to faithfully account for and pay over to the proper authorities all moneys which may come into his hands upon the public account, and the performance of this duty may be enforced by proper actions against the officer himself, or against those who have become sureties for the faithful discharge of his duties.

§ 910. At what Time Officer should account.-Where, by the law creating the office or otherwise, the time for accounting is expressly fixed, that provision would, of course, govern. Where, however, no such time has been fixed, it would be the duty of the officer, ordinarily, in analogy with that of a private agent,' to account upon lawful demand, and, at all events, within a reasonable time.'

§ 911. When Officer chargeable with Interest.-A public officer who duly accounts for public funds at the proper time would not, unless by express statute or special agreement, be chargeable with interest thereon. But if he makes default in payment at the proper time, or omits to include a portion in his account, or appropriates it to his own use," or retains it for an unreasonable time, he will be liable for interest upon the amount retained from the time when it should have been paid."

3

§ 912. Extent of Liability under Statutes and Bonds, and Excuses for Defaults.-But the nature and extent of the liability in this respect is usually prescribed by express statutes, and bonds are required to secure the faithful performance of the duty. In determining the extent of the liability, therefore, regard must be had to these instruments which declare it."

1 See Mechem on Agency, § 530. 2 Leake v. Sutherland, 25 Ark. 219. State v. Sooy, 10 Vroom (N. J.) 539.

Supervisors v. Birdsall, 4 Wend. (N. Y.) 453.

People v. Gasherie, 9 Johns. (N. Y.) 71.

Board of Justices . Fennimore, Coxe (N. J.) 242.

7 State v. Van Winkle, 43 N. J. L 125.

See full discussion, § 297-303.

Under some of these statutes, the money becomes, upon its payment to the officer, in legal effect his money, and he becomes a debtor to the public for the amount of it.' In such a case it is obvious that his liability is absolute, and, like any other debtor, he must repay although he may have been so unfortunate as to lose or be deprived of the money without his fault.'

In most cases, however, it is made the duty of the officer, either by the terms of the statute prescribing his duties, the performance of which the bond, in general terms, is given to secure, or by the very language of the bond itself, to safely keep the public funds which come into his hands and to pay them over according to law. In a few instances it is further provided that they shall be deposited in a certain manner or shall be kept in certain safes or other receptacles provided by the public; in which cases the officer who complies with the requirements is relieved from liability.

But, except in such instances, 'the officer's liability is, according to the great majority of the decisions, held to be fixed by the terms of the statute or the language of the bond, and he is regarded not as a mere bailee, but as one who, by the terms of his undertaking, has incurred a fixed and absolute liability to keep the money safely at all hazards.

Perley. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637.

Muzzy . Shattuck, 1 Denio (N. Y.) 233; (See Supervisors v. Dorr, 25 Wend. (N. Y.) 440;) Colerain v. Bell, 9 Metc. (Mass.) 499; Hancock v. Haz zard, 12 Cush. (Mass.) 112, 59 Am. Dec. 171; Egremont v. Benjamin,125 Mass. 19; Agawam National Bank v. South Hadley, 128 Mass. 507; Halbert v. State, 22 Ind. 131; Allen v. State, 6 Blackf. (Ind.) 252; Morbeck v. State, 28 Ind. 86; Rock v. Stinger, 36 Ind 346; Steinback v. State, 38 Ind. 483; Board of Justices v. Fennimore, Coxe (N. J.) 242; Inglis v. State, 61 Ind. 212; Shelton v. State, 53 Ind. 331, 21 Am. Rep. 197; New Providence ; McEachron,33 N. J.L. 339.

4

But this could only be where the law was established by competent authority. Otherwise the mere fact that the money was kept in a safe provided by the public would be no defence. Halbert v. State, 22 Ind. 131; Cumberland v. Pennell, 69 Me. 357, 31 Am. Rep. 284; Jefferson County v. Lineberger, 3 Mont. 231, 35 Am. Rep. 462.

The leading case upon this subject in United States v. Prescott, 3 How. (U. S.) 578. There a receiver of public money had given a bond conditioned, among other things, that he would "well, truly and faith. fully keep safely all the public moneys collected by him," &c. He sought to justify a default upon the ground that the money had been

Thus a county or township treasurer or other receiver of public moneys, is not discharged from liability by the failure of a bank in which he had deposited the funds, though he was guilty of no negligence in ascertaining its financial condition, and although the county provided no safe place for its deposit; or by being violently robbed of it; or by its being stolen from the county

safe without any lack of care upon his part;' or by the destruction of the money without his fault."

In a few cases, however, this absolute liability has been denied and the officer has been held to be excused by the act of God or the public enemy,' or by losses occurring without fault upon his part.

§ 913. Same Subject-Legislature may relieve officer from his Liability. But although the officer may be liable to make good the loss, though happening without his fault, it is competent for the legislature to relieve him from this liability, and anthorize the deficiency to be made up by levying a tax for that purpose."

§ 914. When Action may be begun.-The right to institute an action upon the officer's bond will ordinarily arise only when, by the terms of the bond or the provisions of law, his duty to account has matured and he has made default. This may be at the end of his term or at varying intervals before, according to the circumstances.

But where the officer admits the defalcation but claims the right to interpose an untenable defense, it is held that the State is not compelled to wait until the close of the officer's term before beginning an action upon the bond."

(U.S.) 578; State v. Nevin, 19 Nev. 162, 3 Am. St. Rep. 873; State v. Harper, 6 Ohio St. 607, 67 Am. Dec. 363.

Jefferson County v. Lineberger, 3 Mont. 231, 35 Am. Rep. 462.

2 District Township of Union . Smith, 39 Iowa 9, 18 Am. Rep. 39. See ante, §§ 297–303.

Thus in United States v. Thomas, 15 Wall. (U. S.) 337, it was held that a receiver of public money who had given a bond to keep it safely and pay it when required, is not bound absolutely, but is discharged if it be lost by the act of God or the public enemy-in this case the Confederate army.

The decision in United States v. Prescott, 3 How. (U. S.) 587, was very much weakened by United States v. Thomas, supra, if not, so

far as it held to the rule of unconditional liability, overruled.

Thus in an elaborately reasoned case in Maine it is held that a county treasurer is not liable for public moneys of which he has been violently robbed without his fault. Cum. berland v. Pennell, 69 Me. 357, 31 Am. Rep. 284.

And in South Carolina a county treasurer was released from liability by the failure of a bank which was in good standing at the time of deposit. York County v. Watson, 15 S. C. 1, 40 Am. Rep. 675.

Board of Education v. McLands borough, 36 Ohio St. 227, 38 Am. Rep. 582; Mount v. State, 90 Ind. 29, 46 Am. Rep. 192.

State v. Nevin, 19 Nev. 162, 3 Am. St. Rep. 873.