Supervisors v. Dorr — 25 Wend. 439

Majority

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*The Supervisors of the County of Albany vs. Dorr and others.

Headnote

A. public officer entrusted with the receipt and disbursement of public funds, is not responsible for money stolen from his office, where there is no imputation of negligence or other default on his part.

Demurrer to pleas. The declaration is on a bond, dated 19 November, 1838, executed by Misha Dorr, with sureties, for the faithful discharge of his duties as county treasurer. The condition of the bond, after reciting that Dorr had been appointed county treasurer for the county of Albany, is in these words : “ Now, therefore, if the said Elisha Dorr shall faithfully execute the duties of said office of county treasurer for the said county of Albany, and shall pay according to law all moneys which shall come to his hands as such treasurer, and render a just and true account thereof to the hoard of supervisors of the said county of Albany, or to their successors in office, when thereunto required, or to the comptroller of the said state of New-York, when thereunto required, then,” &c. The Ireaches alleged in the declaration are, that Dorr had not paid over the sum of $2,500 which had come to his hands as county treasurer, stating a request to pay on the 30th November, 1839 ; and that he had not accounted, &c. The defendant, Dorr, pleaded that he had at all times since the execution of the bond, rendered a just and true account, &c., and had paid according to law all moneys which had come to his hands as county treasurer, except the sum of $1129.75, which being the identical moneys received by him as county treasurer at his office in the city of Albany, and before he was requested to pay out the same, was, on the night of 11 March, 1839, feloniously stolen

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from his office, without any negligence, want of due care, or other blame or fault whatever on his part. To this plea the plaintiffs demurred.

J. Van Burén, for the plaintiffs,

insisted that the plea was no answer to the declaration ; on the contrary, it substantially *ad- [ *441 ] mitted the breaches, viz.: that the defendant had neither paid the money according to law, or accounted. The county treasurer, receiving a compensation for his services, was responsible for the public funds received by him. He is not a bailee, who may be excused unless chargeable with negligence. At all events, the loss of money by theft should not be held an excuse, as it may be guarded against. In case of loss by robbery or fire, it might be otherwise..

S- Stevens, for the defendant,

insisted that his client was the depository or bailee for hire of the money of the county; he did not, upon the receipt of the money, become an absolute debtor to the county for the amount received, but held it as the agent of the county, to be disbursed under the directions of the plaintiffs. The receipt and disbursement of the moneys of the county, are simply the execution or discharge of an official duty, in respect to which the officer is free from all liability, whilst he acts with integrity and is not chargeable with negligence or want of due care. He cited Willis on the Duties of Trustees, 85, 86,194, n. 88 : Parker's R. 167 ; 1 Johns. R. 196 ; Story on Bailment, 302, 390.

By the Court,

The question presented is, whether the treasurer of a county is responsible for the public moneys received at his office in the execution of his duties, that have been stolen therefrom, without any negligence or default on his part; or in more general terms, whether an officer concerned in the receipt and disbursement of the public funds, is an insurer of the same ex virtute officii, whilst they necessarily remain in his custody.

The principle was decided in favor of the defendant, in Lane v. Cotton & Frankland, 1 Ld. Raym. 646, and subsequently confirmed in Whitfield v. Le Despencer, Cowp. 754, and is in conformity with the general rule of daily application, that in order to subject the officer it is necessary to prove mis-eonduct or neglect in the execution of his duties. Comyn's *Dig., tit. action upon the case for negligence, A. 2; 19 Johns. [ *442 ] R. 381; 15 Id. 250. Both the cases referred to were actions against the post master general, for the loss of packages containing exchequer bills and money, that had been stolen out of his office ; they were several times argued, and underwent great consideration by the court. One of the principal questions involved has no connection with the case here, namely, whether the defendants were responsible for the misconduct of

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their subordinates ; but the sco.pe and effect of the opinions and decision go to deny any personal liability of the officer, except for misfeasance or neglect. Holt, Ch. J., dissented in the first case, and argued from the nature of the trust, that the officer was bound to keep all letters safe, at his peril; that the case did not differ from that of the marshal of the king’s bench, or warden of the fleet, who were obliged to keep the prisoners safe, and where it was no plea that the king’s enemies broke the prison against their will; and that the same was the law also where goods were levied upon by the sheriff, and rescued from him. He also likened the case to that of a common carrier, or the master of a ship taking goods on board for freight • and that for this reason he should be liable, without assigning any particular neglect; that he received a premium, by way of salary, which was a sufficient reward for the extreme liability. All these views were rejected as inapplicable by the other judges ; and also by the court, in Whitfield v. Le Despencer, and the liability brought down to the ordinary case of misfeasance or neglect by the defendants themselves in the duties of their office. The same principle has been held in several cases in the courts of this country, and approved by our most distinguished elementary authors. 7 Cranch, 242 ; 1 Mason’s R. 96, 101; 2 Kent’s Com. 610 ; Story on Bailment, 302, 390.

The condition of the bond recognizes this common law rule. It is, that the treasurer “ shall faithfully execute the duties of the said office”—“ and shall pay according to law all moneys,” &c. The first clause is general, and prescribes the fidelity with which the officer is to perform all [ *443 ] the several *duties belonging to the office ; the residue is but an enumeration of some of the most important.

Judgment for defendants.