People v. Van Ness

California Supreme Court Apr 29, 1889 No. No. 11621Published

Before: Thornton

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Holding. The court held that a commissioner of immigration's denial of the state's right to collected funds constituted a conversion of those funds, establishing a breach of his official bond. Furthermore, the court determined that the conversion occurred prior to the filing of a subsequent bond, rendering the sureties on the original bond liable.

Issues

Whether the commissioner's denial of the state's ownership of collected funds constituted a conversion of those funds.
Whether the conversion of funds occurred prior to the filing of a second official bond, thereby triggering liability under the first bond.
Whether the action was barred by the statute of limitations.
Whether the commissioner was entitled to credit for funds collected without legal authority but paid into the state treasury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence shows a denial by Van Ness of any right of the state to the moneys collected by him as the trusted officer of the state. This is a conversion within the rules of law on that subject.”

“The money, having been collected under color of office, should have been paid into the state treasury, and did not belong, in any view, to Van Ness, and he had no right to retain it.”

Synopsis

' Official Bond — Commissioner of Immigration — Evidence of Conversion, — When the commissioner of immigration, upon being required to . render immediately to the controller a detailed statement of receipts, and to pay the same into the state treasury, replies that he had received no moneys belonging to the state, such reply is evidence of a conversion of all moneys of the state, which had theretofore come to • his hands, as fast as received, and such conversion was a breach of his official bond, which was in force at the time of the receipt of the moneys.

Id. — Statute of Limitations. •— The statute of limitations for breach of an official bond does not commence running until the expiration of the official term, and the period thereafter required to effect a bar is four years.

Id.—Delivery of Official Bond—Approval. — An official bond, like every other deed, is not operative until a delivery, nor are the sureties liable thereon for any breach until after its delivery. There can be no delivery of an official bond until its approval by the proper authority.

Id.—Fees Illegally Collected by Commissioner of Immigration-— Rights of State. — Fees collected by the commissioner of immigration for administering oaths to masters of vessels, when making the reports required by section 2949 of the Political Code, were collected without authority of law, and the money thus collected belonged to the ship-masters who paid it; but having been collected in the name and by the authority of the state, the state was the proper custodian of the moneys. The commissioner had no right to retain them, and having paid them to the state, cannot claim a credit therefor on a judgment for breach of his official bond.

Thornton, J. —Action on the official bond of the defendant Van Ness, as commissioner of immigration of the port of San Francisco.

The bond on which this action was brought bears date on the 11th of January, 1876, on which day it was signed by Van Ness as principal, and Henry Barroilhet and Leland Stanford as sureties, was approved by the governor on the next day, and filed and recorded on the next day in the office of the secretary of state.

Van Ness held the office of commissioner of immigration from the seventh day of January, 1876, to the 21st of January, 1880.

During the incumbency of Van Ness,his official bond was by an act of the legislature, approved March 25, [861876], reduced from twenty-five thousand dollars to two thousand five hundred dollars.

Van Ness, subsequently to this amendment, filed an official bond in the sum of two thousand five hundred dollars, which was approved by the governor, and filed in the office of the secretary of state on the eighth day of May, 1876. This last bond was signed by Van Ness and Barroilhet and one Moulder as sureties on the twelfth day of April, 1876.

During Van Ness’s incumbency, from March 25,1876, to the end of his term, he collected and received in his official capacity, under the statute, as “ the seventy cents,” or capitation tax allowed by it, the sum of $28,353.64, and of this amount he collected,—

From March 25, 1876, to April 12, 1876......$1,284 50

From April 12, 1876, to May 8, 1876......... 2,648 10

Total from March 25,1876, to May 8, 1876.. $3,932 60

Van Ness was entitled to a salary of $4,000 per annum during his incumbency of office, which amounted in the whole to $15,277.78.

Of this amount his salary from March 25, 1876, to May 8,1876, amounted to $477.18.

The remainder of salary was received during the subsequent period of his term of office.

The action, as will be observed, is brought on the bond first executed in January, 1876, and it is contended that there never has been any breach of that bond.

People v. Van Ness

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