
    The State v. R. Wells et al.
    (Case No. 4832.)
    1. Collector’s bond, sureties on.— The sureties of a tax collector who procure, on their application to be released, an order of the commissioners’ court requiring of the collector a new bond, are not relieved as sureties until a new bond is approved by the comptroller of the state, notwithstanding its approval by the commissioners’ court. ■
    Appeal from Travis. Tried below before the IIon. A. S. Walker.
    The following statement, made in appellant’s brief, presents the case:
    This suit was instituted by the state of Texas, in the district court of Travis county, on the 14th of December, 1881, against Richard Wells and his sureties, on the official bond executed by said Wells on the 18th of April, 1876, as tax collector of Yan Zandt county, for the taxes due the state for the year 1878, amounting to $1,850.08, besides interest thereon from September 1, 1879, at the rate of eight per cent, per annum.
    On the 2d of December, 1882, the surety defendants, who had been served, filed their answer admitting they had executed and delivered the bond sued on, and that Wells had commenced discharging his duties under said bond, but they claimed that, on the application of the sureties, made at the August term, 1877, of the commissioners’ court of Yan Zandt county, the sureties had been relieved from all liability on the bond from that date, by order of the court; that Wells was required to give a new bond, and was ordered to cease acting as tax collector until he gave the new bond, but that the clerk, by some oversight, had failed to record the order; that the failure was not discovered until after the institution of this suit; that the order was entered nunc pro tunc by order of said court on January 4, 1882, and that the same was in full forcei The answer of defendants denied that Wells was in default at or before the August term, 1877; claimed that they were not liable for any default that may have occurred since then, and alleged that after the relieving order was made, in August, 1877, Wells”had given a new bond, which was approved by the commissioners’ court and forwarded to the comptroller, but, for some informality, was returned by the comptroller for correction, but that the same was never again returned to the comptroller, and that defendant Wells proceeded to execute the duties of his office under the new bond, and not under the bond on which the defendants were sureties.
    Judgment in favor of the state against the principal, R. Wells, for $2,361.13, but in favor of the surety defendants against, the state for all costs of suit, and discharging them from liability on the bond.
    
      John D. Templeton, Attorney General, Taylor Moore and Osceola, Archer, for appellants, cited:
    R. S., arts. 4286-4293; Craddock v. Scarborough, 54 Tex., 346; Camoron v. Thurmond, 56 Tex., 35; Gen. Laws of 1876, pp. 51-54; Houston Tap & Brazoria R. R. Co. v. Randolph, 24 Tex., 333; Lindsey v. Luckett, 20 Tex., 516.
    
      Walton & Hill, for appellees, cited:
    Withers v. Patterson, 27 Tex., 497-98; Freeman’s Judgments, secs. 61-68.
   Watts, J. Com. App.—

Previous to the passage of the act of August 12, 1876, providing a remedy whereby sureties on the bonds of county officers might relieve themselves from liability for the future defaults and official misconduct of the officer, the obligation of the surety had been considered as a continuing contract; a liability extending throughout the term of office; and from which the surety had no means of relieving himself. By that act a privilege or favor was conferred upon such sureties, and by which, notwithstanding they, by signing the bond, qualified the officer to discharge the duties of the office, they could protect themselves from liability for and on account of any future official misconduct upon his part. Hence, it would seem to result that the security, to obtain the benefits of the act, would have to pursue the remedy as there given, until all the acts upon which his discharge is conditioned had been accomplished.

It is provided by the organic law that “all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified.” This, of course, is to be understood with its proper qualifications. The officer may resign, or may be removed by some competent authority, and the office declared vacant, either of which would terminate his official existence, and he would not thereafter be authorized to discharge the duties of the office. But until his official existence is at an end he may continue to discharge the duties of the office, and it seems that his sureties would be liable for his official misconduct, and that liability would continue even after the expiration of the term of office had expired, provided his successor had not then qualified. Thompson v. State of Mississippi, 37 Miss., 518; Placer Co. v. Dickerson, 45 Cal., 12; Anderson v. Longden, 1 Wheat., 85. While it is provided by the first section of the act of August 12, 1876, that upon notice being served upon the officer of the surety’s application to be relieved from the bond, he shall cease to exercise the functions of his office except as therein provided; and if he fails to give a new bond within twenty days after such service, then his office shall become vacant. Still, the second section provides that if the new bond is given and approved, then the sureties on the former bond are discharged from liability for the future misconduct of the officer.

This act carries the evidence of hasty legislation and want of consideration upon its face. The mode of procedure provided foe is incomplete, and the terms of the act are indefinite and uncertain. For instance, the application of the surety is required to be made to the county commissioners’ court, but no action by the court upon it is either authorized or required. And again, the language is that, unless the bond is given within twenty days after the service of the notice, the office shall become vacant, yet no tribunal or other authority is designated to ascertain the fact or declare the vacancy. It but barely presents the outline of a remedy, nearly everything in reference to which is left to be supplied by judicial construction.

However, at the same session, and but a few days after the passage of this act, the legislature passed another in reference to tax collectors, specifying the requisites and prescribing the conditions of their official bonds. It provides that their bonds shall be approved by the county commissioners’ court, and subject to the further approval of the comptroller. And also the commissioners’ court or comptroller might either require a new bond or other surety, which, if not given when required, he shall be suspended, and dismissed from office by the county commissioners’ court. As this latter act relates to the particular subject matter, the two should be considered as parts of the same statute, and in arriving at the legislative intent should be construed together.

Statutes are to be enforced according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence, or otherwise by the legislature, to express its intent, and to follow which would pervert that intent.” Russell v. Farquhar, 55 Tex., 360.

As has been truly said, “A thing within the intention is within the statute, though not within the letter. And a thing within the letter is not within the statute, unless within the intention.”

In reference to a matter of such great importance as the collection and disbursement of the public revenue, the legislature could not have intended that sureties on official bonds should be discharged from further liability in such manner or under such circumstances as would jeopardize the public interests. As has been seen, without this legislation the surety would be liable, not only for the full term of the office, but also until his principal’s successor had duly qualified. Then, in availing himself of the privilege or favor extended by the statute, it would seem reasonable and just to require of him, as a condition precedent to his discharge, to prosecute the remedy to that extent which would secure the public against loss for the misconduct of his principal, either by the substitution of a new bond, satisfactory to and accepted by the proper authority, or else to see that he is dismissed from office.

The statute of Ohio, after providing that justices of the peace might be required to give other security, etc., contained the following: “And if such justice shall fail to give other security, to the satisfaction of such trustees or city council, within ten days after having received a written notice from the trustees to that effect, such failure to give security shall be taken and deemed a resignation, of his office, and the trustees shall proceed to fill such vacancy as in other cases.”

In a case that arose under that statute the court said: “Waiving all other questions which have been and might be made in the case, it is enough to say that the sureties on the official bond of All-men, at the beginning of his term of office, voluntarily became responsible for the fidelity and integrity of his official conduct. That responsibility must, continue during his term of office, unless they become released from it under some provision of law. The only condition provided by law on which they can be released from their responsibility is this: that he ‘shall give other security to the satisfaction of the trustees.’ No other security was given; none at all. The additional names subscribed to the official bond not ap-. pearing in the body of that instrument, there are no words of obligation to bind them, and they are of no signification whatever. The trustees did- not declare the office vacant, nor proceed to fill it as if it were vacant. The sureties ought to have seen to it that this was done, or to have held the trustees responsible for the non-performance of their duty. The obligation of the sureties remained in full force.” Stevens v. Allmen, 19 Ohio St., 489.

Under our statute the only condition upon which the sureties are discharged from further liability is thus expressed: “If a new bond be given and approved, the former surety or sureties shall be discharged from any liability for' the misconduct of the principal, after the approval of such new bond.”

True, the approval of the commissioners’ court was required by law, but it must be remembered that this was not final; the bond was still subject to the approval of the comptroller. And when rejected by that officer, the bond, notwithstanding the action of the commissioners’ court, within the meaning of the statute, has not been approved. In relying upon the execution and approval of the new bond as & discharge from further liability, the duty devolved upon the sureties to see that this was done; but having failed to do so, and also having failed to procure the dismissal of the officer by the commissioners’ court, it would follow that their liability upon the bond continued in full force.

The purported order of the commissioners’ court approving the new bond and discharging them from further liability at most would be conditional and dependent upon the action of the comptroller in accepting or rejecting the bond. If the new bond had been given and approved, as contemplated by the statute, the discharge would have followed as matter of law, and the formal order of the commissioners’ court could have added no efficacy to it. But as the bond had not been approved as contemplated, the court had no authority to discharge the sureties from further liability, and therefore could not be made available by the sureties.

Our conclusion is that the court erred in not rendering judgment against the sureties as well as the principal upon the bond, and therefore recommend that the judgment be reversed, and that the supreme court now here render the judgment that ought to have been rendered by the court below, to wit, that the appellant, the state of Texas, have and recover of and from appellee B. Wells, as principal, and A. 0. Graham, M. W. Ellis, G. W. Tull, D. 0. Riley, Joshua Hallman and E. J. Sides, the sureties on his official bond, the sum of $2,361.13, with interest thereon at the rate of eight per cent, per annum from the 2d day of December, 1882, together with all costs, etc.

Reversed and rendered.

[Opinion adopted May 6, 1884.]  