dissenting.
I am wholly unable to concur with my associates in the judgment rendered, that the treasurer .and his sureties on the bond sued on are not liable to the state for the interest made by the treasurer and used by himself and two of his-sureties for their private profit. The law of the case is to be found in the statutes of this state, and there is no need of going elsewhere to determine that law. To my mind it is clear; and a few words will show the reasons which make it clear to me. ■
*626It is not a criminal case. It is not a question of mala fides in a civil case. It is a naked question of liability to pay money on a contract under seal made by a public officer and his sureties. Did the officer break the contract he made with the state when he put his signature to this bond, and did his sureties agree to make good that breach, when they signed the same bond ? These are questions, and the only questions, arising on this demurrer, and both are answered in the affirmative by the facts alleged in the declaration and by the law prescribed by the statutes of the state.
• The bond is set out in the declaration and speaks for itself. The breaches thereof, which the declaration alleges, or can allege, by amendment, are the failure “ faithfully to discharge, execute and perform all and singular the duties of him required, and which may be required by the constitution and laws;” and the failure faithfully to “ account for and pay over all moneys that may be received of him from time to time by virtue of his office;” and the failure to “ safely deliver to his successor all books, moneys, vouchers, accounts and effects whatsoever belonging to his said office.”- The allegation further is that the treasurer “ did collect, in his official capacity, from different banks and individuals in tiñe city of Atlanta, in said state, large sums of money, as interest and commissions for the use by said banks and others of the public money of said state, in the hands of said Renfroe, as treasurer as aforesaid, and did, in violation of law and of the obligations of said bond, appropriate the same in part to his own private use and benefit, and did allow one J'ohn W. Murphy and one Vincent R. Tommey to appropriate the same in part to their own private use and benefit respectively;” and then the declaration sets out the amount Renfroe used for himself, and the amount which each of the others appropriated to their respective private use by his sanction; and afterwards, appended to the declaration and made part thereof, is a bill of particulars itemizing the several sums so used by *627the treasurer, with the dates thereof, in sundry banks, some of which were state depositories; and further, it alleges-that the state is entitled to recover upon the bond from principal and sureties the money so used unlawfully and misappropriated by the treasurer, and also penalties therefor.
On these facts, alleged in the declaration and admitted by the demurrer, I am of the opinion that the state is entitled to recover, every condition of the bond having been clearly broken by this use of the public money by the treasurer.
The bond was broken, in that the treasurer did not “ faithfully discharge'the duties required of him by law.” The act of 1876 specifies those duties. Among other things, it enacts that u he ma.y, with the approval of the governor, deposit all funds set apart for the purpose of education, or any other purpose not required for immediate use, in any chartered bank of this state, subject to his draft as treasurer, and, with the governor, make such contract with said bank for the use of such funds as may be beneficial to the state.” Acts of 1876, sec. XII., subdivision 10, pp. 130, 131,; Code of Georgia, §97, sub-sec. 10.
Did the treasurer “ faithfully discharge the duty required of him ” by law, when, instead of making the deposit so as to be beneficial to the state, he made it so as to benefit himself and two other individuals ? Clearly he violated his bond, when, instead of making the contract with the banks to pay interest to the state, he made it to pay interest to himself and two other favored persons. It is vain to reply that the governor, under the law above cited, must help him make the contract for the benefit of the state, in order to make the interest 'for the state. Was it not the • duty of the treasurer, in whose possession the money was placed by law, to notify the governor that he had on hand funds not needed for immediate use, and that they could be deposited so as to bn beneficial to the state in drawing interest thereon ? And did he faithfully discharge his duty as treasurer, when, instead of notifying the -governor and: *628having his co-operation, he made the contract and used the fund for his own benefit ? The failure to notify the governor, and the making the contract alone, and the appropriation of the interest to his own use and that of others, amounts to a violation of the obligaton of the bond faithfully to discharge this duty required by law; and therein the bond was broken, and on this breach the state ought to recover.
So with the second condition of this bond. It is as clearly broken, under the allegations of fact and the law applied thereto. That second condition is “ faithfully to account for and pay over all moneys that may be received of him from time to time by virtue of his office.” This money was received by him by virtue of his office! As treasurer he received the principal. As treasurer he deposited it with the banks. It was subject to his check as treasurer, and the bill of particulars so distinctly states. Officially the deposit was made. Officially interest was agreed upon for the use of the money deposited; and by every rule of law, common sense and equity, that interest belonged to the state. The treasurer got it virtute offieii; and when he received it, he received it as trustee of the state. By virtue of his office, he was the custodian and trustee of this fund; and all that he made out of it belonged to the cestui que trust. His duty, his official duty, was to place it in the treasury for the state, his cestui que trust, and to account for it, if instead of putting it there to the credit of the state, he and others by his assent pocketed it.
I am aware that the books make a nice distinction between funds acquired colore officii and those obtained virtute officii; but I know of no case where, under the facts here disclosed and law so plain as the act of 1816, it has been held that, on facts and law at all analogous, the money could not be recovered out of the misfeasant and those who indorsed his faithful discharge of duty. It seems to me that the obligation, the official obligation of the treas*629urer, under the act of 1876 supra, is not only to account for such money of the state as came into his hands from taxation and other sources of revenue, but for such interest as he actually makes on that money for its loan or deposit as treasurer; and if such be his official obligation, it binds his sureties as well as himself. They obligated themselves to make good any default of his in not paying over all that belonged to the state from any and every source.
The third and last condition of the bond makes this stronger. It is that he will “ safely deliver to his successor all books, moneys, vouchers, accounts and effects whatsoever belonging to his said office.” Does not this sweeping clause embrace every cent that ex equo et bono belongs to the state ? If the argument above, under the second breach, be sound, then the word moneys ” would apparently include this interest; but. the subsequent words, “ accounts ” and “ effects,” leave the position so strong as to be unassailable. Suppose the treasurer had in his office an account ex equo et bono — an equitable demand— against any bank or private person, would he not be bound by this law and this condition or obligation in his bond to turn it over to liis successor; and failing so to do, would he and his sureties not be bound to pay its value ? Would it not b¿ one of the effects of the state belonging to his office ? 'If such be the law, in case he had such a claim or demand on others, is he, and are his sureties to be relieved from paying the claim because it is on him and two of his sureties ? Does the fact that the claim is upon him make it a claim not “ belonging to his said office ?” It is an equitable claim, an account or effect belonging to his office, owed by him to the state, and which he is bound to deliver to his successor. The act of 1876 was passed at a time when the state was aroused in respect to defalcations of the person then treasurer; and the general assembly made this broad and sweeping law to cover every defalcation of every sort, and to secure, beyond peradventure, all her *630moneys, accounts and effects of every sort. “ Whatsoever” is the broad word that enlarges the scope of liability and makes it expansive, I had almost said, as the universe. The great Maker of the universe and Redeemer of man used a kindred word in range and compass when he said, “ God so loved the world that he gave his only begotten Son to die, that whosoever believeth on him should not perish but have everlasting life;” and when, in the very last chapter of the great law book, he wrote, And whosoever will, let him take the water of life freely.”
I think, too, that liability for the breaches of this bond covers the penalties prescribed in the event that the treasurer appropriated any of the money entrusted to him as the officer of the j>eople and the Gustodian of their funds to his own use. The act of 1876 also covers all fours this position. The eleventh subdivision of the twelfth section of that act is as follows: ■ “ The treasurer shall not, under any circumstances, use himself, or allow others to use, the funds of the state in his hands; and for every violation of this section, he is liable ■ to the state for the sum of five hundred dollars as a penalty, or a forfeiture of his salary, if such forfeiture will pay the penalty incurred.” Page 131, subdivision 11, acts of 1876; Code, §97, sub-sec. 11.
The fourteenth section of the same act is as follows:
“ That if the treasurer fails to perform the duties of his office, misapplies or uses the funds of the state, fails to account for and pay over any moneys that he may have, received by virtue of his office, whereby he becomes liable to the state, it shall not be necessary to sue his official bond, but the governor is hereby authorized to issue a fi. fa. instanter against the treasurer and his securities for the amount due the state by the treasurer, with the penalties and costs.” . . . Acts of 1876, p. 132; Code, §97 (b).
Unquestionably this fixes the liability of the sureties on this bond for penalties. And if this bond had been an *631official bond, who can contend, with any sort of confidence, that the governor could not have issued execution instanter thereon for these penalties, and recover for the state by levy and sale ? But the bond is not an official, but a voluntary bond, as has been adjudicated by this court. Therefore the remedy of the state is by suit on the bond. See 66 Ga., 408; 1 Kelly, 580, 582.
The only effect of these rulings is, that the state has no summary remedy on the bond, but is remitted to the usual suit at law on the bond. The bond is as good, but the remedy is different. Therefore these sureties are liable to the full extent in this suit as they would have been had the execution been issued; and their liability covers all that would have been covered had it been an official bond, and as such, had execution been issued instanter.
The constitution of 1877, art. 5, sec. 2, par. 5, codified in section 5124, makes fundamental what the act of 1876, section 12, sub-sec. 11, p. 131, Code, §97, sub-sec. 11, had previously declared to be legislative law. Both entered into and made part of this bond-, as its face shows and the statute requires. Code, §90, sub-sec. 1. It is no answer to this liability on this bond for penalties to say that the law generally is, that sureties are not responsible for penalties or forfeitures, because, in this case, the statute — the law of this case — expressly declares that they shall be liable. Nor is-it any reply to lay down the general principle that, where a statute prescribes a remedy to enforce a penalty, no other can be resorted to — the law generally not favoring penalties, because that applies where the remedy is of force. Here the only remedy prescribed by the statute is on a statutory bond, and this bond was held, in 66 Ga., supra, in a case between these same parties, to be not a statutory, but a voluntary bond. Therefore the statute gives no remedy on this bond, but, by the ruling in 1 Kelly, supra, followed by several other following cases, it is ruled that the state is remanded to her suit at law on the common law bond.
*632On the general liability of principal and sureties on this bond, see also the statutory provisions in the Code, §160, which declares that “every official bond executed under this Code is obligatory on the principal and sureties thereon for any breach of the condition during the time the officer continues in office, or discharges any of the duties thereof, for any ■ breach by a deputy, although not expressed, unless otherwise declared by law, for the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein, (and) for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office, as by his failure to perform, or by the im- . proper or neglectful performance of those duties imposed by law.”
These provisions, in my judgment, make the treasurer and sureties liable on this bond for any wrongful act done under color of his office. "Was not this act wrongful? When he could have made the interest for the state, was it right to make it for himself'? If not done officially, as I think it was, was it not done by color of his office ? The declaration and bill of particulars show it beyond possibility of cavil. In bank depositories of the public funds, he deposits those funds and pockets the interest. By virtue of his office, he makes the deposit; and by color of it, to put it weakest, he makes interest on the deposit, and he and two others appropriate that interest to their own use. These provisions of law also make the treasurer and sureties liable on this bond by his failure to make the interest for the state, and by the improper and neglectful performance of his duty when he made the deposit and absorbed the profits of that deposit instead of making entry of those profits for the state in a durable book under section 97, sub-section 2, of the Code.
In law the act was not the less wrongful, improper and neglectful, if done in ignorance of the act of 1876, and *633under the idea that the joint resolution of 1871 was still in force, which disclaimed any claim of the state to interest in such cases. The act of 1876 repealed that resolution, and it was the duty of the treasurer to know. On a criminal charge, as on his impeachment, the fact that Mr. Eenfroe was a member of the legislature of 1871, and was ignorant of the subsequent law, may have thrown light on his intent to do wrong, and thereby have been considered on that great- issue before the senate, though even in criminal cases ignorance' of the law is generally no excuse; but on a civil case for money growing out of his office, ignorance of all the law pertaining to that office can be no sort of legal defence to the suit.
Thus regarding the case as controlled by the statutes of the state, I deem it unnecessary to examine critically the common law of England or the adjudications thereon in tho United States or any of the American states. I add simply that the criminal statute of 1878, making such conduct felonious, expressly provides that the civil recovery shall-not be affected thereby Code, section 4425(b). That act, however, was passed after this interest was made and received, and could hardly affect the result here, even if that provision was not in it. Appending hereto the citations of the attorney general and Mr. G. N. Lester, for the state, of authorities outside of our state, and some of our own, as they may throw further light on a broad view of the entire subject, I close what a sense of duty to the .state required me to say, in order that views of law and construction of statutes damaging to the public, in my judgment, might not be cited hereafter as carrying, by a unanimous judgment of this bench, the force of a legislative enactment. Vol. 4 B., Myer’s Fed. Dec., Secs. 380, 382, 396, 397, 405, 407 ; 10 Otto 8; 56 Ga., 290 ; 60 Id., 296, 318; Williams Ext’rs, 1844; 6 Lansing, p. 33; 10 Central Law Journal, p. 34; Brandt on Suretyship, 456, 455 ; 17 Ala., 806; 46 Pa. St., 452, 209; 2 Gratt., Va., 134; 53 Ind., 331.