Butte County v. Morgan (1888) · DecisionDepot

Butte County v. Morgan

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 28, 1888 No. No. 12217Published

Before: Hayne

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Holding. The court held that when a county treasurer who also serves as tax collector acknowledges to the auditor that he possesses funds as treasurer, his liability as tax collector ceases and his responsibility as treasurer begins, making the sureties on his treasurer's bond liable for subsequent misappropriations.

Issues

Whether the evidence sufficiently established that the misappropriation of county funds occurred while the defendant was acting in his capacity as treasurer rather than as tax collector.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is manifest that when that occurs his liability as tax collector ceases and his responsibility as treasurer begins; at least, that is prima facie the case.”

“He accepted, without any question, the certificate of the auditor, which contained an express statement that he then had in his hands, to be at once paid into the treasury, the amount in question; and he acted upon this statement”

Synopsis

Tax Collector—Treasurer—Defalcation — Presumption. — Under the provisions of the county government act and Political Code, if the same person is both treasurer and tax collector, and he settles his accounts as tax collector with the auditor, and receives a certificate stating the amount due from him as tax collector, which certificate is afterwards found in the treasury, the presumption is, that the money was deposited in the treasury with the certificate, and in the absence of evidence as to when a defalcation occurred, that it occurred after the money was so deposited; and the sureties of the treasurer are liable.

Id.—Evidence — Admission. — The admission of the receipt of money by the principal in an official bond is evidence against his sureties.

Hayne, C. —Action against a county treasurer and the sureties on his official bond. The court below gave [2]judgment for the plaintiff, and the defendants appeal from the judgment, and from the order denying their motion for a new trial.

There is no doubt that the defendant Morgan did misappropriate the county funds. He was both treasurer and tax collector. The two offices, though filled by the same person, are separate and distinct, and required separate bonds. (County Government Act, secs. 57, 59; People v. Ross, 38 Cal. 77.) The other defendants are the sureties upon Morgan’s bond as treasurer; and the only point made on their behalf is, that there is no evidence to show that the misappropriation occurred while he was acting as treasurer; and hence that the suit should have been against the sureties upon the bond as tax collector. There is no conflict in the evidence. The position is, that there was not enough to overcome the burden resting upon the plaintiff.

The argument made involves a consideration of the statutory provisions in relation to the duties of the officers. The following is the provision of the county government act in relation to the duties of the treasurer:—

“ Sec. 71. He must receive no money into the treasury unless accompanied by the certificate of the auditor, provided for in section 115, or as otherwise provided by law.”

The following is the provision of the same act in relation to the duties of the auditor: —

“ Sec. 115. The auditor must examine and settle the accounts of all persons indebted to the county, or holding moneys payable into the county treasury, and must certify the amount to the treasurer, and upon the presentation and filing of the treasurer’s receipt therefor, give to such persons a discharge, and charge the treasurer with the amount received by him.”

This act has no provision with reference to the duties of tax collector. It appears to have left that subject to [3]be governed by the provisions of the Political Code in relation to revenue and taxation. That code, after providing that the tax collector shall deliver to the treasurer the books and lists showing his proceedings (secs. 3758-3760), has the following:—

Butte County v. Morgan

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