
    Boone County v. Jones et al.
    1. Bond: surety: regularity or election. After a public officer has served through his term, neither he nor his sureties can escape liability upon his bond on the ground of the illegality of his election.
    2. -:-: approval op bond. The fact that the board of supervisors have not indorsed their approval upon the bond of a county officer •will not affect its validity, the statute requiring such approval being merely directory.
    3.-: -: county treasurer. Doubts having arisen as to the legal right of the incumbent to hold the office of county treasurer, a new election was held at which he was again chosen, and under such election gave a new bond. In an action upon such bond it was held that, aside from the general principles of law, it was valid under sections 303 and 773 of the Code, conferring upon boards of supervisors the power of requiring additional bonds from county officers in their discretion.
    4.-:-: evidence. The testimony of the members of the board of supervisors was competent to prove a statement made by the retiring officer, as to the amount of money which should have been in the treasury.
    5.--:--:-. The sureties upon the bond of a public officer are not liable for defalcations occurring before the term covered by their bond, but the reports and settlements made by a county treasurer, in compliance with section 746 of the Code, are conclusive upon such officer and his sureties, and can only be impeached by showing mistakes therein.
    6.-:-. The sureties upon the bond of a public officer can make no defense that could not be made by their principal.
    
      Appeal from Greene Gireuit Oov/rt.
    
    Saturday, October 28.
    At tbe general election in tbe year 1878, the defendant Geo. E. Jones was elected county treasurer of Boone county, for two years from January, 1874. He served tbe full term of tbe office to wbicb be was elected. At tbe general election in 1875, one J. W. Snell was elected to said office, for the term commencing in January, 1876. After the said election, and-before the first Monday in January, 1876, tbe said Snell departed this life without having qualified, or in any mannér entered upon the duties of said office. A vacancy was thereby created, and on the 3d day of January, 1876, the defendant Jones executed a bond to said county as a holding over officer, and otherwise qualified and continued as the incumbent of said office, until the expiration of the term on the first Monday in January, 1878. At the general election in 1876 the electors of said county again voted and balloted for candidates to fill the vacancy in said office, for the residue of said term to which said Snell had been elected, and the said Geo. E. Jones was again declared duly elected, and thereafter, and on the 17th day of November, 1876, the said Jones, and the other defendants as his sureties, executed a treasurer’s bond to said county, conditioned as follows:
    “ The condition of the above obligation is this: Whereas, the said Geo. E. Jones was, on the 1st Monday in January, A. D. 1876, the incumbent of the office of treasurer of Boone county, Iowa, and whereas, J. W. Snell, who had been elected to said office at the general election in Boone county, Iowa, held in October, 1875, failed to qualify in said office, and whereas, said Geo. E. Jones did on the-day of January, 1876, appear before the board of supervisors of said county and duly qualified in said office for the term of two years from and after the first Monday of January, 1876, by giving a bond approved by said board and taking and subscribing the oath of office, which bond still remains on file in the office of the auditor of said county, and under said qualification he is still ■ acting in said office; and-whereas, since then doubts have arisen as to the length of term to be filled by said Jones so holding over, and whereas, at the general election held in Boone county, Iowa, in November, 1876, 3,161 votes were cast for the office of treasurer of said county, to fill a vacancy, and said Geo. E. Jones received a majority of eighty-nine votes of all the votes so cast at said election, and said Jones desiring to put said matter at rest desires to qualify under said election, but does the same and the saméis allowed and permitted by said board with the distinct understanding that this qualification shall in no way affect the former qualification, and this bond shall in no way affect his former bond, and shall not release or discharge any of the sureties thereon.
    “ Now, if the said Geo. E. Jones shall render a tx-ue account of his office and of the doings therein, to the proper authorities, when required thereby or by law, and shall promptly pay to the person or officer entitled thereto all money which may come into his hands by virtue of his said office, and shall faithfully account for all balances of money remaining in his hands at the termination of his office, and shall hereinafter exercise all reasonable diligence and care in the preservation and lawful disposal of all money, books, papers and securities or other property appertaining to his said office, and deliver them to his successor or to any person authorized to receive the same, and if he shall faithfully and impartially, without fear, favor, fraud or oppression discharge all other duties now or hereinafter required of his office by law, then this bond to be vo'id, otherwise in full force. Signed the 17th day of November, 1876.”
    This action was brought upon this bond, and it was claimed that upon his final settlement with the county in January, 1878, the said Jones proved to be a defaulter in a large amount of money, for which judgment was prayed against him and the other defendants as his sureties.
    The answers of the defendants in substance denied that^ Jones was a defaulter in any amount, and denied the validity of said election and bond, averred that said bond was never approved by the board of supervisors of said county, and denied that Jones ever held the office under said pretended election, and averred that he held the full term for which said Snell) was elected as a holding over officer, and said Jones averred! that there were two other actions pending against him for the same cause of action embraced in this suit.
    There was a trial by jury, and a verdict and judgment for the plaintiff, for $13,598. Defendants appeal.
    
      
      Maxwell da Witter and Kidder da OrooJes, for apjrellants.
    
      Webb da Dyer and Phillips, Goode da Phillips, for appellee.
   Rothrock, J.

I. The action is important, both as to the amount in controversy and as to the principles involved, The duesticms contained in the record have beep a^7 presented, both by printed and oral arguments, and we believe we have given to the case that thorough and painstaking consideration which it seems to demand.

When the bond was offered in evidence, objection was made thereto upon the grounds that it was not a valid instrument, because the election therein recited was void, not being authorized by law, and because there was no vacancy at that time existing, and because it appeared from the pleading that there was at the time this bond was executed another le£al bond of the defendant Jones, under which he performed the duties of said office, and upon which alone he is liable. It was further objected that said bond had never been approved as provided by law, and could not be approved because there was no certificate attached to the bond showing that Jones had accounted for or produced the funds of the county before that time under his control. These objections were overruled. The same questions were presented in certain instructions which the defendants asked to be given to the jury, and the instructions were refused.

It appears in evidence that the bond was filed and recorded in the auditor’s office, and a day or two after the bond was filed a certificate of election, approved by the chairman of the board of supervisors, was delivered to said Jones. The bond was indorsed “Approved Nov. 18,1876.” These words were in the handwriting of the chairman of the board. There was no other record made of the approval of the bond.

We think it is not material to inquire whether the defendant Jones was entitled to hold over for the full term for which Snell was elected; nor to determine whether his election to fill a vacancy was regular, and authorized by law. We are united in the opinion that Jones and his sureties are concluded by the recitals in this bond, and cannot be heard to dispute the regularity of the election. Under the recitals of this bond he was, as between the parties thereto, de faeto the treasurer of the county. If public officers are allowed to escape the consequences of malfeasance in office after- the full term of their election has expired, because of an alleged illegal election, it would be a bolder and more glaring instance of allowing a man to take advantage of his own wrong than any case that has come under our observation.

In regard to the want of a record of the approval of the bond, and the want of such certificate indorsed thereon as the statute requires, we think the defendants are also concluded by executing and delivering the bond to the board. These provisions of the statute are directory merely. They require certain duties to be performed by the officers therein named, and their failure to perform them in no manner affects the officer or his sureties. Laches are not imputable to the public authorities, and the failure of the supervisors to perform their duties in matters not inhering in the bond will not discharge the sureties. U. S. v. Kirkpatrick, 9 Wheaton, 720; Same v. Van Zandt, 11 Id., 181; Dox x. Postmaster-General, 1 Pet., 318.

Their liability is not made to depend upon these acts of the officers of the county. The fact that Jones had qualified and given bond as an officer holding over can make no difference. He became a candidate at the election to fill the vacancy, accepted its results, and gave his bond, and accepted his certificate of election, and he and his sureties should not be allowed to say that he was holding the office by another tenure, and under another bond.

But without further elaboration of this question we think we are required to hold this bond valid by reason of the statute. Sub. 10 of Sec. 303 of the Code provides £jie p)oar(q 0f supervisors have “ power to require any county officer to make a report under oath to them on any subject connected with the duties of his office, and to require any such officer to give such bonds, or additional bonds, as shall be reasonable and necessary for the faithful performance of their several duties * * * .”

Section 773 provides that “any officer or board who has the approval of another officer’s bond, when of opinion that the public security requires it, upon giving ten days’ notice to show cause to the contrary, may require him to give such additional security, by a new bond, as may be deemed requisite, within a reasonable time to be prescribed.”

These provisions of the statute give a wide discretion in the matter of requiring official bonds. The supervisors are invested with power to determine when additional bonds are necessary, and in what amount. In this case there' were doubts as to the right of Jones to hold over for the full term: an election was held, and the bond in suit taken in the belief that the public security required it.. The defendant Jones gave the bond voluntarily, and it would be a strange perversion of justice to hold that the bond is void, because there was no occasion for an election and additional bond. As well-might Jones and his sureties, upon an additional bond given because it was believed by the board that the sureties upon his first bond were insufficient, insist that the additional bond was void because the original sureties were possessed of sufficient property to fully protect the public. Such an issue would not be made, much less entertained, in any court.

II. At the time Jones made his final settlement with the board, and when he surrendered the books and effects of the office to his successor, he took the money on hand from the safe, counted it, and handed it over. It amounted to $4,726.91. The plaintiff introduced the members of the board as witnesses, and they were pexanitted, against defendants’ objection, to state what Jones said at that time as to the amount of money there should have been on hand.

The argument of counsel for the appellants is that the declarations of Jones are not binding upon the sureties; but liability upon the bond must be fixed by the books of the treasurer, and the records of the board of supervisors, showing the amount of the defalcation, a settlement with Jones, and a demand for the deficiency.

We know of no rule which requires liability upon this bond to be made matter of record. The fact to be ascertained is, did Jones pay over to his successor all the money with which he was properly chargeable? If he did not, he and his sureties are liable upon the bond.

No objection was made by Jones as to the manner in which his accounts were adjusted by the board. He paid over what money he had without objection, and only ceased to count out the whole amount because it was not there. We assume this 'to be true, and that there was a deficiency, because it is not seriously disputed, and the record does not contain all the evidence introduced upon that question, it having been omitted by agreement of counsel.

III. The bond in suit was approved on the 18th day of November, 1876. The law requires the boai’d of supervisors at their regular meetings in January and June of each year to make a full and complete settlement with the county treasurer. No record was made'of such settlement in January, 1877; that is, the proceedings of the board make no reference to such settlement, and we are aware of no statute requiring such record, unless it be that it should be included in the record of the proceedings. But the books of the treasurer were introduced in evidence, and although none of their contents are contained in the abstract, it seems to be conceded that they show a settlement — that is, the accounts for the year 1876 were closed up by Jones charging himself with the amounts to balance, and the balances were. by him carried, forward into his accounts as treasurer for the year 1877, as so much cash on hand. That there was a settlement at that time with Jones, and an accounting with all of the members of the board present, and a balancing of the books, appears in evidence. Upon tbat settlement it appears that Jones was not a defaulter — his account showed tbat be bad on band all tbe money be was required to have. It must be presumed tbe members of tbe board did their duty by counting tbe money which bis report showed should be on band.

Tbe defendants offered to prove from tbe books tbat Jones could not have been a defaulter in any sum at tbe time bis bond was given by showing tbat after tbat time be paid out more money than be received, and offered to prove tbat on tbe 18th day of November, 1876, when tbe bond was given, and before tbat, there were deficits in tbe treasurer’s accounts. They also offered to prove bow much money there was in tbe treasurer’s office on that day. All this evidence was excluded on the objection of tbe plaintiff, upon tbe ground tbat tbe treasurer and bis sureties were bound by tbe settlement made in 1877, and the settlements after tbat as shown from bis books, and tbat they were thereby estopjjed from showing tbat tbe defalcation existed befbre tbe bond was given. Tbe defendants also asked tbat several instructions be given to tbe jury to tbe effect tbat tbe defendants were only liable upon tbe bond for such defalcations as occurred after tbe bond was given, which instructions were refused.

These rulings of tbe court are claimed to be erroneous, and tbe question as to their correctness is tbe main point in controversy in tbe case. Counsel for appellant cite a large number of authorities to tbe effect tbat where an official bond is not retrospective tbe sureties thereto are only bound for tbe public money in tbe bands of tbe officer when tbe bond was executed, and for tbat which subsequently came into bis possession, and cannot be held for past derelictions of duty by their principal. Tbat tbe proposition is correct can admit of no question. It lias been repeatedly so held by this court. Mahaska County v. Ingalls, 16 Iowa, 81; Bessinger v. Dickerson, 20 Id., 261; Warren County v. Ward, 21 Id., 84; School District v. McDonald, 39 Id., 564.

But the question we are called upon to determine in this case is the admissibility of the offered evidence to show the fact as to when the defalcation or embezzlement occurred. In State v. Grammier, 29 Ind., 531, it is said: “ It is true that the sureties of a public officer in the absence of special agreement are only liable for a defalcation of their principal during the term of office covered by the bond, but what shall be received as proof of such defalcation is quite another question.” In determining the question as to whether the officer and his sureties should be estopped from contradicting the reports of the treasurer and the settlements made by him with the board of supervisors we are controlled largely by the statute in force in this State requiring such settlements to be made. Before citing the statute, however, it may be proper to say that upon a careful examination of the authorities cited by counsel for appellants we have found no ease exactly in point. They are for the most part cases which determine the general proposition that a surety is not liable for derelictions of his principal before the date of the bond, and the question of estoppel based upon settlements with the officer does not appear to have been under consideration. We have seen that the law requires the settlements to be made with the treasurer in January and June of each year. Suppose that he should refuse to make such settlement, or it should appear by an examination of his books and the counting of his cash that he was a defaulter; he would be liable to be removed from office. Code, § 746. He would also be liable to prosecution for the crime of embezzlement. Now suppose at the time of settlement he should show by his books and by the money in the vaults of the treasury that he was not a defaulter, has the county the right to rely upon such showing? Or can he by false statements of account, or by borrowing money temporarily to be counted in settlement, mislead tbe board of supervisors and avoid proceedings against him, or possibly tbe demand for an additional bond, and tben when sued upon his bond show that bis settlement was a fraud upon the county, and that tbe defalcation actually occurred during a former term? We are clearly of tbe opinion that be cannot. By allowing such contradictions of these settlements courts would open tbe doors to escape from liability upon almost every official bond. By shifting tbe defalcation back to a former term, tbe statute of limitations would in most cases preclude all hope of recovery unless when a defaulting treasurer who has held successive terms should be sued upon all bis bonds, and tben tbe shifting process could well be applied to each casé. We think tbe question has every element of estoppel, and that to bold such evidence competent would not only be to' allow tbe treasurer to take advantage of a wrong by which be deceived tbe county to its injury, but-would be contrary to public policy. In McCabe v. Rainey, 32 Ind., 309, it is well said that ef a party will be concluded from denying tbe truth of bis owri admissions, which were intended to influence tbe conduct of another, and did influence it, when such denial will operate to the injury of tbe latter.”

In Baker v. Preston, 1 Gilmer (Va.), 235, a proceeding against a defaulting treasurer and bis sureties, it was held’ that tbe books kept by tbe treasurer were conclusive evidence of tbe balance actually in tbe treasury at any given time, both against tbe treasurer and bis sureties without being pleaded as an estoppel, so as to charge them with balances carried forward from year to year. See, also, State ex rel., etc., v. Graunear, 29 Ind., where the last above case is cited with approval; Mosley v. The Town of Metamora, 78 Ill., 394:, and Gage v. The City of Chicago, 2 Bradwell (Ill.), 332. It is true that, in tbe last above cited cases, tbe settlement or statement made by tbe officer was .made at or before tbe dates of tbe bonds, but we think they are in principle- tbe same as’ the case at bar, because the statute requires these settlements to be made at stated periods. They are conclusive that up to • the time they were made no defalcation existed. It will, of course, be understood that the rule we here announce would not preclude the officer and his sureties from showing, in a proper case, that there were mistakes in his books and settlements ; but no such case is presented in this record.

IY. The sureties can make no defense that could not be made by their principal. As is said in Patterson’s Appeal, 48 P. St., 345: “ The measure of his responsibility is the measure of theirs,” and in McCabe v. Rainy, 32 Ind., 309, it is said “any act of the principal which estops him from setting up a defense personal to himself, operates equally against his surety.” See, also, Seaver v. Young, 16 Vermont, 658, and Charles v. Hopkins, 14 Iowa, 471.

We have determined all the questions made by counsel for appellants, necessary to a determination of the case. When the court below determined, as we think, correctly, that this was a valid and legal bond, and that the parties thereto were bound by the settlement and squaring up of the treasurer’s books in January, 1877, the case was reduced to the single question as to the amount of the embezzlement. That this was correctly found by the jury, does not seem to be seriously questioned.

Affirmed.

ON REHEARING.

Adams, Ch. J.

The appellants in their petition for a rehearing claim that the court made a mistake in the facts relied upon by the appellee, as constituting the ground of estoppel. We have accordingly re-examined the abstract, and have reached a conclusion not essentially different from that reached in the original opinion. The undisputed evk denee is, as we understand it, that on the first of January, 1877, Jones was debited with the amount which the previous receipts exceeded the previous payments. Such debit then showed the amount which ought to be in the treasury. The precise language in which the debit entry was made is not shown to us. In the absence of such showing we should not, perhaps, be justified in assuming that the entry expressly purported to show that the money was in the treasury. On account of this fact, we have had some doubt as to the effect which should be given to the entry as a ground of estoppel.

In Gage v. The City of Chicago, 2 Bradwell, 332, a case strongly relied upon by the appellee, the entries expressly purported to show the “balance in the treasury.” . We have come to the conclusion, however, that the case at bar is not essentially different. The theory upon which the estoppel is based is that the natural effect of the entry was to mislead the board of supervisors, and lull them into security. Now, inasmuch as the balance carried forward and debited to the treasurer ought to be in the treasury, and would be in the treasury in the absence of defalcation, the natural inference to be drawn from the entry would be that the money was there. We do not say that it was not the duty of the board of supervisors, at their semi-annual settlement, to count the money, and ascertain whether the amount called for by the books was in the treasury. We think such was their duty. Possibly they counted the money and found it there. If so the sureties are liable. But conceding that the supervisors were guilty of laches in this respect, we do not think the sureties can escape liability by reason thereof. They knew that their undertaking, prima facie, was that their principal would account for all balances carried forward, and that the tendency of such entries was to mislead the supervisors, and lull them into a false security, if the money called for by the entries was by reason of previous defalcations not in fact in the treasury. They'should, therefore, have counted the money ' themselves, and if they found that their undertaking appeared from the books to be greater than they were willing to acknowledge it to be, they should, we think, forthwith, certainly before any settlement with the board, have notified it of such fact. The treasurer’s books should at all times show the exact condition of the treasury. If in the case at bar there was a shortage at the beginning of 1877, the debit balance carried forward should have shown how much thereof was shortage. But the debit balance it appears was carried forward in such a way as to conceal the shortage, if there was any, and the sureties, apparently at least, acquiesced in the account. The former opinion is adhered to, and the judgment is

Affirmed.  