County of San Luis Obispo v. Farnum

Haynes, C. This action is upon the official bond of C. A. Farnum as county auditor of said county. The other defendants are R. E. Jack and J. P. Andrews, the sureties of Farnum upon said bond.

The complaint alleges that Farnum, as such auditor, at divers times between January 2, 1891, and January 3, 1893, received from the license tax-collector of said county divers sums of money collected for license taxes due said county, the sum of twelve hundred and eighteen dollars and sixteen cents, which he, said Farnum, had failed and refused to pay to the county; alleged the making and approval of the bond, and attached a copy of the bond to the complaint. The bond is in the statutory form, conditioned that he should “well and faithfully perforin all official duties now required of him by law, and shall well and faithfully execute and perform all duties of such office of auditor of San Luis [564]Obispo county required by any law to be enacted,” etc.

A general demurrer was interposed by the defendants, which was overruled, and the defendants answered. The cause was tried by the court, and a finding that all of the allegations of the complaintwere true (except that the amount was reduced to eleven hundred and eighty, seven dollars and six cents) was filed and judgment entered against all the defendants therefor, and from this judgment all appeal upon the judgment-roll.

The demurrer should have been sustained as to the sureties, and the judgment must be reversed as to them, because no cause of action is stated against them, nor are any facts found which support the judgment. A cause of action is stated against Farnum, independently of the allegations relating to the bond, which may be treated as surplusage. That the money in question, having been collected by the tax-collector for licenses, belonged to the county is not questioned; but that it came to the hands of defendant Farnum as auditor is a conclusion of law wholly unsupported by the facts found. There is no provision of law authorizing the auditor to receive it, nor any authorizing the tax-collector to pay over such moneys to him, or to any one except the county treasurer.

Having received the money it was Farnum’s duty to pay it over to the treasurer; but such duty did not arise out of his office, nor was it at all different from the duty which would have rested upon him to pay it over had he been a plain citizen not holding any county office. Farnum did not even receive the money colore officii, for under no circumstances was he authorized or required by law to receive it. The condition of the bond sued upon is not, that Farnum should be personally honest, or pay his personal debts, or discharge those private duties and obligations which he may have assumed, but the condition is that he “shall well and faithfully per. form all official duties required of him by law.” The “ official duties” here specified are the duties required