People v. Gardner

McKee, J.: Robert Gardner, one of the defendants in this case, was elected Surveyor-General of the State, at the general election of 1874, and continued in office until the first Monday in December, 1875. Before entering upon the duties of his office, he took the oath of office and gave bond with the other defendants as sureties, in the sum of ten thousand dollars, conditioned as follows, to wit: “Now, therefore, if the said Robert Gardner shall well [305]and faithfully perform all the duties of his said office, as required by law, and shall pay over all moneys that may come into his hands in the pursuance of the requirements of the statutes of said State, and shall faithfully execute and perform all the duties of such office required by any law to be enacted subsequent to the execution of this bond, then this obligation to be void and of no effect; otherwise, to be and remain in full force and virtue.”

For an alleged breach of this bond the action in hand was brought, and it is charged by the complaint in the action, that, during his term of office, there were fees of office amounting in the aggregate to the sum of $75,845.43, which the defendant Gardner failed and neglected to collect and account for to the State ; and that'those fees of office which he did collect for the use and benefit of the State, amounting in all to the sum of $76,020, he failed to disburse according to law for the benefit of the State, or to pay into the treasury of the State, but converted the same to his own use.

On the trial of the case, proof was made, by the “Application Books ” in the Surveyor-General’s office, that there had been filed during the term of office of defendant, 7,193 applications to purchase lands belonging to the State of California, the fees for filing 5,798'of which were paid to the Surveyor-General, and that upon 1,381 applications he had failed to collect the fees.

Evidence was also offered to show that contests were made before the Surveyor-General by opposing applicants for the purchase of State lands, and that he referred these contests to the District Courts by orders made and signed by him as Register of the State Land Office. About 200 of these orders were made in all. The greater number of them were made between December, 1871, and January, 1873, and the others between January, 1873, and December, 1875. Evidence was also offered to show that, during his term of office, the Surveyor-General had, as ex-officio Register of the State Land Office, issued 7,046 certificates of purchase of State lands, and upon final payment had prepared patents, on the surrender of the certificates; and the amount of fees which had been paid to him therefor, and for listing lands to the State, and for other services rendered by him in his capacity as Register. The Court rejected the evi