
    JANUARY TERM, 1848.
    John M. Taylor vs. Alexander H. Arthur, President of the Board of Police of Warren county.
    If a county treasurer, elected at the general election in November, fail to give bond within ten days after his election, under the law of 1822, his election is not thereby vitiated ; nor will a bond, executed for the faithful performance of his duty as such officer, after the expiration of ten days from his election, be invalid; it will be a good statutory bond.
    The law of 1822, which required county treasurers to give bond and take the oath of office within ten days after their appointment by the governor, or their appointment would be vacated, is repealed by the constitution of 1832, which makes that officer elected by the people, and the law of 1833, which allows the returning officer of the election fifteen days after the election to make out and forward his returns to the governor.
    To an action by the successor in office of a former president of the board of police against a county treasurer and his sureties, on the treasurer’s official bond, payable to the former president, for a defalcation, in which bond the principal was declared to have been duly elected county treasurer, and to have qualified as such, it was held to be a good plea in bar of the action that the principal in the bond was not county treasurer.
    
    In error, from the circuit court of Warren county; Hon. George Goalter, judge.
    This was an action of debt brought by Alexander H. Arthur, as president of the board of police of Warren county, Mississippi, and as successor of John I. Guión, &c., on a bond executed on the 8th day of December, 1835, by Richard Featherston, as treasurer of said county, with Edwin G. Cook and John M. Taylor, as his sureties therein. The declaration sets out the conditions annexed to the bond, reciting that “ whereas the above bound Richard Featherston has been, on the 3d and 4th days of November, 1835, by the qualified voters of Warren county, duly elected treasurer of said county, and commissioned by the governor as such, for the term prescribed by law. Now, therefore, if the said Richard Featherston should from tithe to time, and at all times, render a just and true account unto the said board of police of said county, when by them thereto required, of all moneys, securities, stock, and other property of the said county which should come to his hands, or be committed to his charge, and deliver the moneys, securities, stock, and other property of the said county in his hands, together with all documents, instruments of writing, papers and books belonging to, or for the use of said county, to his successor in oifi.ce, and should well and truly, honestly and faithfully, perform all the duties of his office, during his continuance therein, and should answer for all unlawful appropriations, waste, embezzlement, or destruction of the said moneys, securities, stock, property^ documents, instruments in writing, paper, or books, which should be made, done, or permitted by him, or any person or persons by him employed in said officeand assigns two breaches; first, that the said Featherston did not deliver to his successor in office the sum of $14,107 72, which he as treasurer received and collected, on the 1st day of November, 1837, belonging to and for the use of said county, &c.; second, that the said Featherston was duty elected and commissioned, as set forth in the said condition to the said writing obligatory, treasurer of said county, and as such did enter upon the duties of his said office, on the 8th day of December, 1835. Yet he did not well, truly, honestly, and faithfully perform all the duties of said office, during his continuance therein, in this, to wit: that on the 7th day of November, 1837, as treasurer of said county, the said Featherston received and collected, belonging to and the property of said county, a large sum of money, to wit: the sum of $4866 50, which it was his duty, as treasurer, to deliver to his successor in said office, and that he did not do so, &c. The process was served on John M. Taylor, and returned not found as to Featherston and Cook. At the return term John M. Taylor appeared and filed three pleas. The first, after craving oyer of the bond and condition annexed, avers that Richard Featherston was elected treasurer of the county of Warren, on the 3d and 4th days of November, 1835, for the time prescribed by law, and that he, and the said Edwin G. Cook and John M. Taylor, executed the said supposed writing obligatory, on the 8th day of December, in the year 1835; that the said Featherston neglected to give bond and security, and take the oath of office as treasurer of said county, for the space of ten days after his election, whereby, according to the statute in such case made and provided, his said election became absolutely null and void; wherefore the said supposed writing obligatory in the declaration mentioned, was, and is, void in law, &c. The second plea avers, that at the time of the execution of said supposed bond, the said Richard Feather-ston was not the treasurer of said county of Warren, &e. The third plea avers that the said Richard Featherston never did collect or receive any money as county treasurer, as alleged in the declaration, &c. The two first pleas conclude with a verification, and the third to the country. The plaintiff demurred to the two first, and took issue on the third. The court sustained the demurrer to the first and second plea, and the case was tried on the issue taken on the third. After a verdict and judgment in favor of the plaintiff for the sum of $7397, the defendant removed the case to this court by writ of error.
    
      
      J. S. ~Yerger and Charles Scott, for plaintiff in error.
    1. The act of assembly declares that unless the person appointed county treasurer, shall, within todays after his election, enter into bond and take the oath prescribed by law, the office shall be vacant, and some other person shall be appointed. How. & Hutch. 307.
    2. If the failure to give the bond and take the oath within ten days vacated the office, and some other person only could be appointed, the bond was void. 1 Leigh’s R. 485; 8 Yerg. 436; 10 lb. 465; 2 Call, 510; 3 lb. 421) 3 Wash. C. C. R. 10; Martin & Yerger, 242; 1 Iredell’s R. 597; 3 Peters R. 115, 131; 6 Bing. 88; 2 Peters Con. R. 71.; 3 Porter’s Ala. R. 329 ; United States v. Zantzinger, 3 Har. & John. 560. Constitution adopts statutes, How. & Hutch. 27, 31-36.
    3. The bond not being good under the statute, suit cannot be brought in the name of the successor. 1 Leigh, 285 ; 10 Yerg. 465 ; 1 Dev. 153; 4 Porter’s Ala. R. 345.
    4. The appointment being invalid, Featherston received the money, not by virtue of his appointment, but by the consent of the board of police, and his security is not responsible. 6 Peters Con. R. 268, 615; Gilpin’s R. 121.
    5. The consideration of this bond was illegal. It was an attempt to do an act by the board of police, which the law disallowed. It was appointing to office contrary to the law and the constitution, and therefore void. 2 Iredell’s Law R. 267 - 272, 275 - 306.
    6. The failure of Featherston to take the oath of office in the time prescribed, vacated it. 3 Porter’s Ala. R. 329; 9 East, 206, 252, ¿262; 3 Harris & Johns. 560; Greenleaf’s Ev. 98. See Gordon’s Digest, 678, 2439, 2440.
    
      Smedes and Marshall for defendant in error.
    1. The whole question in this case is, whether the law of 1822, so far as its second section (How. & Hutch. Dig. 307, § 2,) is concerned, is in force since the law and constitution of 1833; in other words, whether the neglect or refusal, since the adoption of the new constitution and the establishment of a new frame-work of government under it, of a county treasurer to give bond and security and take the oath of office for the space of ten days after his election, render his election absolutely null and void; or is that law by implication repealed 1
    
    We take the latter alternative. The first thing that strikes the mind is the total inapplication of the letter of the law; it applies as written and passed solely to the state of things when county treasurers were appointed by the governor, at the instance of the county courts,, without even the intervention of the legislature; and it was only when such an appointee failed to give his bond and take the requisite oath in the time limited, that the governor, who could act with the promptness of a single mind should, as soon thereafter as may be,'commission his successor. The constitution of 1833, (How. & Hutch. 31,) provides for the election of the treasurer by the people of each county; and thus introduces a more unwieldy body than a single person, to confer the appointment. In. one particular, however, at least, that section is repealed ; if the vacancy contended for exist the governor not only does not fill it, but does not even order it filled; that duty devolves by the law of 1833 upon the board of police. (Laws from 1824-1838, 455, sec. 3.)
    2. It is a singular omission in the laws of 1833, and since, that they do not provide for the election of a county treasurer, nor for the laws regulating it. Tax collectors and assessors are expressly provided for, and the laws previously in force retained as to them; so also express provision is made for rangers, justices of the peace and other county officers, except the county treasurer. It is alone under the fourth section of the schedule of the constitution of 1833. (How. & Hutch. 36,) that it can be for a moment pretended that the section referred to of the law of 1822 is in force.
    3. There is, however, another provision of the law of 1833, which must operate as a repeal of section two, of the law of 1822; that is the ninth section of the “Act to regulate elections in this state.” (Laws, 1824-1838, 417, § 9.) By that section fifteen days after each election is allowed the returning officer, to certify the number of votes to the governor, for his commission to be given to the various county officers elected; while the same law provides that the sheriff and coroner may qualify and enter upon their duties without commission, clearly implying that no other county officer could do so, so as to render valid and effectual their acts. But if a county treasurer’s election is void who does not give bond in ten days, when he cannot be reported as elected for fifteen after his election, and in point of fact in case of a closely contested election, might not know before that time, (that is, till the governor had adjudged,) that he was elected, his case would be a hard one.
    4. To uphold the section referred to will be to overthrow the very principle upon which the constitution of 1833 is based; that is, that all power is vested in the people, and emanates from them. It is their election which clothes the officer with the authority to act; they make him county treasurer; neither the bond nor the commission do that; the one being but a security which the county exacts for the faithful dicharge of his duty; the other being but an indication of whom the people have selected. To say that the people’s selection shall be void, unless the law imperatively demands it, for any cause, is a harsh animadversion upon the principles of the constitution; and in this case to determine so, would be not only to overstep the letter of the statute, and violate its reason, but would also require of the county treasurer to make “ impossibility possible” by exacting of him to give a bond for the discharge of his duties, before he could legally ascertain his right to the office. The law of 1822 was made for one state of things and one form of government; the constitution of 1833 established a totally different state of things and a totally different form of government; under the old regime it was no hardship on officer or people to exact a bond in ten days on penalty of forfeiture of the office. The governor was the source of the power; the knowledge of the appointment directly communicated; the ability to supply a neglect or refusal to act instant and complete. Under the present state of things, the reverse of all these is the case; the law, therefore, it seems to us, not being applicable, either in letter or spirit, cannot be in force.
    
      5. Independent, however, of the law of 1822, and admitting it to be in full force, upon principles which the supreme court of the United States and other distinguished courts have settled, the bond in this case would be obligatory upon all the parties to it. Featherston, whether legally or not, was in fact county treasurer, and the sureties certainly signed the bond; if there is nothing illegal or immoral in the conditions imposed, even though void as a statutory bond, it is valid as a common law obligation, and may be enforced as such. In the case of the United States v. Tingey, 5 Peters, 115, the court say : “ A-bond voluntarily given to the United States, and not prescribed by law, is a valid instrument upon the parties to it, in point of law.” They say further, in the same case: “A voluntary bond, taken by authority of the proper officers of the treasury department, to whom the disbursement of public money is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursing public money, is a binding contract between him and his sureties, and the United States; although such bond may not be prescribed or required by any positive law.” Ib. A similar principle is decided in United States v. Bradley, 10 Peters, 343. Chief Justice Marshall, in the case of the United States v. Maurice, 2 Brockenb. C. C. R. 96, adjudges this very case. He determines “that an official bond given by an agent of fortifications, whose appointment was irregular, but whose office is established by law; though void as a statutory bond, is valid as a contract to perform the duties of the office of agent of fortifications, and is binding on his sureties.” See especially pages 108, 109; mutatis mutandis that case, and the one before the court run pari passu. If it is necessary to confirm or strengthen the decisions above referred to, by those of other courts, the following cases from Kentucky fully establish the obligation of the present bond as a common law bond: Cobb v. Curts, 4 Lit. R. 235; Stratton v. Rowan, 2 Bibb R. 179; Stevenson v. Miller, 2 Lit. R. 306; Justices of Jefferson v. Clark, 1 Mon. 86; Faut v. Wilson, 3 Monroe, 342; Hoy v. Rogers, 4 Mon. 225. The general rule, as laid down by the court in Kentucky, is, “that a bond, whether required by statute or not, is good at common law, if entered into voluntarily, and for a valid consideration, and if not repugnant to the letter or policy of the law.” Thompson v. Buchanan, 2 J. J. Marsh. 418; Brown v. Miller, 3 lb. 437. To none of which objections is the bond in this case obnoxious.
    6. That an officer de facto’s acts are valid will hardly be questioned; at all events, neither he nor his sureties can be heard to question their validity. The People v. Collins, 7 Johns. R. 549; M’Instry v. Tanner, 9 lb. 135; Keyser v. M’Kissan, 2 Rawle’s Penn. R. 139 ; Riddle v. County of Bed-ford, 7 Serg. & Rawle, 386; Parker v. Luffborough, 10 lb. 249; Town of Bath v. Town of Haverhill, 2 New Ham. R. ■555; Johnston v. Wilson, lb. 202; Taylor v. ÍSkrine, 2 S. Ca. R. 696; Jones v. Gibson, 1 New Hamp. R. 268; Moore v. Graves, 3 lb. 408; Nason v. Dillingham, 15 Mass. 170; Bucknam v. Ruggles, lb. 180 ; Fowler v. Beebe, 9 Mass. 231; Commonwealth v. Fowler, 10 lb. 290; Doty v. Gorham, 5 Pick. 487.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was brought by Arthur as the president of the board of police, and successor to John I. Guión, against Feather-ston, as principal, and Cook and Taylor as sureties, in a bond given by Featherston as county treasurer. The suit was discontinued as to Featherston and Cook, and Taylor pleaded three pleas; first, that Featherston had neglected to give bond and take the oath of office for the space of ten days, whereby his election became void; second, that at the time of executing the bond, Featherston was not county treasurer; and, third, that Featherston never did collect any money as county treasurer, which last plea concludes to the country. To the first and second pleas there was a demurrer, which was sustained by the court, and after verdict and judgment, a writ of error was sued out. The inquiry now is, did the court err in sustaining the demurrer to the first and second pleas?

On examination of the law in relation to county treasurers, it will be found that the legislation is exceedingly defective. Prior to the adoption of the present constitution, they were appointed and commissioned by the governor, and the only law in reference to their appointment and qualification, is the one which was adapted to that state of things. The nineteenth section of the fifth article of the constitution provides that a county treasurer shall be elected by the qualified electors of each county, who shall hold his office for two years, but no corresponding change has been made in the law. By the fourth section of the schedule of the constitution, it was provided that all laws then in force, not repugnant to the constitution, should continue in force, and it remains to inquire how far the act of 1822, in relation to county treasurers, can be considered as operative under that provision.

We can have no hesitation in saying that the time allowed for giving bond, and the effect of a failure to do so within the required time, were entirely abrogated. The first section provided that the governor should appoint and commission a county treasurer for each county, and the second section provided that if the treasurer should refuse or neglect to give bond, and take the oath, for the space of ten days after he had been so appointed, such appointment was thereby declared null and void, and the county court should, as soon thereafter as might be, proceed to recommend some other suitable person to the governor to fill the office. The appointment is now made by the people, and there is no provision or authority for a reelection in case of failure to give bond for the space of ten days. This section was virtually changed by the constitution, because of its inconsistency with that instrument. But it was virtually repealed by the ninth section of 'the general election law, which allows the returning officer of each county, fifteen days to make his return. The two laws cannot operate together. It would be absurd to say that a county treasurer vacates his election by failing to give bond within ten days, when it may be that he has no authentic knowledge of his election until after that time has elapsed. As the election was not vacated by the failure to give bond within ten days, it follows that the first plea was bad, and the demurrer properly sustained.

But to the second plea the demurrer was improperly sustained. This suit is against Featherston and sureties, as on a statutory bond, which the law requires the county treasurer to give. The demurrer admits that Featherston was not county treasurer. It was therefore a mere voluntary bond, good, if at all, only as a common law bond. On such a bond suit must be brought in the name of the obligee, or his representatives. Hibbits v. Canada, 10 Yerg. 465; Stuart et al. v. Lee, Gov. 3 Call’s R. 364. This suit is brought jn the name of a successor to the obligee, and in that form the plea was a good answer to the action ; because a successor can sue only when the bond is in accordance with the statute, and given by a person who is required in his official capacity to execute such bond. For this reason the judgment must be reversed and the cause remanded.  