Tillinghast v. Merrill

Martin, J.

(dissenting):

It seems to me that the weight of authority is to the effect that, in the absence of any statute enlarging it, the responsibility of a public officer is measured by the common-law liability of a bailee for hire, other than common carriers and innkeepers, and that while such an officer is bound to act in good faith and exercise reasonable diligence in the discharge of his duties, he is not responsible for the loss of money coming into his hands which occurred without fault on his part. (Supervisors v. Dorr, 25 Wend. 440; People ex rel. Nash v. Faulkner, 107 N. Y. 477; United States v. Thomas, 15 Wall. [U. S.] 337; Peck v. James, 3 Head [Tenn.], 75; Cumberland v. Pennell, 69 Maine, 357.)

I do not regard the cases of Muzzy v. Shattuck (1 Den. 233); Looney v. Hughes (26 N. Y. 514); Fake v. Whipple (39 id. 394), and Bradley v. Ward (58 id. 401) as in conflict with the doctrine of the foregoing authorities. The latter cases were all actions upon a collector’s bond, and it was held that under and by virtue of the express provisions of the statute relating to the collection of taxes, a collector upon receipt of his warrant became a debtor to the county in the sum which he is authorized to collect, and that such indebtedness could be discharged only by producing to the treasurer a duplicate receipt of the officer to whom the collector was directed to pay the moneys collected, or by making his affidavit that certain taxes remain unpaid, and that, upon diligent inquiry, he has been unable to discover any property belonging to the person charged with such taxes, whereon he could levy the same.

*490It is quite manifest, I think, that the cases first cited are not overruled by or in conflict with the latter ones, and that the question involved in this case is not affected by the doctrine of those decisions. While it has been said that the case of Supervisors v. Dorr was overruled by the decision in Muzzy v. Shattuck, it does not seem to me that that statement is correct. There was no mention of the former case in the opinion in the latter, and one at least of the judges who joined in the decision of the latter case concurred in the opinion of the prior one. I can see no reason why the case of The Supervisors v. Dorr should not be regarded as an authority upon this question. It is true that it was said in People ex rel. Nash v. Faulkner that as the decision in the Dorr case had been much questioned, and been supposed by some to have been overruled in the Muzzy case, it should, probably, not be regarded as binding authority in this State, and that the question therein decided may yet be regarded as an open one. The logic of that suggestion is not quite apparent, as it had already been distinctly stated that there was no conflict between the two decisions ; that the Muzzy case did not expressly or by implication overrule the decision in the Dorr case, and that the supposition that it had been so overruled was erroneous. IJnder such circumstances, I cannot perceive any reason for rejecting the Dorr case as an authority, nor why it should not be given the weight to which any decision of that court is entitled. I am of the opinion that the decision in the Dorr case, if not controlling or binding, should be regarded as some authority upon this question, and when considered in connection with the other cases cited, should be regarded as persuasive authority upon the question of the liability of a public officer for the loss of money which comes into his official custody and is lost without any fault upon his part. I think that, independent of any-provision in the bond which enlarges or increases the liability of the officer, a public officer is not responsible for the loss of money which comes into his official custody, occurring without fault on his part.

This leads to the consideration of the question whether the provisions of the bond, in suit in any way increased or enlarged the defendant’s liability. The condition of the bond was that the defendant should “safely keep, faithfully disburse and justly account for all the school moneys which have or shall come into his *491hands, apportioned and paid from the State treasury, and all other school moneys that have or may come into his hands from any other source.” This bond does not, 1 think, in any essential particular differ from that of a county treasurer or of a surrogate, and with regard to the latter, the Court of Appeals in People ex rel. Nash v. Faulkner (107 N. Y. 489) said: “ There is nothing in the phraseology of the bond given by the surrogate which enlarges his statutory liability. It is a bond simply for the faithful performance of his duties, and the faithful application and payment of all moneys that may come into his hands. It imposed upon the surrogate no broader responsibility or liability than the statute. It was simply designed to enforce and secure the faithful discharge of his duties, and any defense which he would have had when called to account for the money which came to his hands is available to his sureties when sued upon the bond.” Within the principle of that case and the case of The Supervisors v. Dorr, I think it should be held that there was nothing in this bond which in any way increased or enlarged the liability or responsibility of the defendants, and that as the trial court has found that the defendant Merrill acted in good faith, and that the moneys were lost without any fault or negligence on his part, the plaintiff was not entitled to recover.

Thus I am led to dissent from the opinion in this case of my brother Hardin.

Judgment affirmed, with costs.