(dissenting).
I do not concur in the conclusion reached by a majority of the court.
In 'cases like the present, under slightly varying statutes, the courts of the United States and the courts of, perhaps, twenty of the States have held such officers and their sureties to a strict responsibility for the public funds. And in my opinion not only the greater number but the great weight of authority sustains that view. A few of the State courts have held otherwise.
The suit is upon the bond — the contract between the State and the defendants. Any recovery must be upon this contract. It is an express contract in writing. So far as the sureties are concerned it is evident that prior to the execution of the bond they had no responsibility in the premises whatever, and that their liability now is only *381what they have assumed by their contract. A few courts holding the minority view, as in Cumberland v. Pennell, 69 Me., 357, have reached the conclusion that the responsibility of the defendants is governed by what is termed the “law of bailments,” and that the treasurer is a bailee' for hire, and is bound only to bring to the discharge of his trust ‘ ‘ that prudence, caution, and attention which careful men usually exercise in the management of their own affairs, and he is not responsible for any loss occurring without any fault on his part.” It is to be observed that the law of bailments here invoked which fixes the liability of a bailee for hire is simply the contract implied by law between the parties when they themselves have made no express contract fixing the degree of responsibility of the bailee. Commonwealth v. Comly, 3 Pa. St., 372. It has no application where the parties themselves have made their own contract. And, indeed, it is not applied alike in all cases of bailment for hire where there is no express contract, as in the case of common carriers and inn-keepers the contract implied by law is for a more stringent liability, owing to the relations of the parties.
In this case the treasurer and his sureties have contracted in the words of the bond that he shall “faithfully and truly perform all the duties of his office. ” Those duties are prescribed by the statutes of this State. Section 1696 provides that “the treasurer shall; first, receive and keep all moneys of the State, not expressly required by law to be received and kept by some other person; second, pay all warrants duly and legally issued by the auditor so long as there are in his hands funds sufficient to pay such warrants. ’ ’
Section 1734 provides, “The State treasurer shall in no case disburse or pay out the State funds except on warrants drawn by the auditor.” Section 1731 provides that at the end of their respective terms of office the treasurer and auditor shall “deliver to their successors all official books, papers, records, and balances of funds which may be in their possession. ’ ’ These are his duties *382with reference to the public funds, and he and his sureties have contracted that he shall faithfully and truly perform them.
It is clear that the plaintiff must recover under this state of facts unless it is held, either that they do not show a contract for the safe keeping of the money, or else, that the loss of the funds by the failure of the bank in which they were deposited is an equitable excuse for the non-performance of the contract.
The duty prescribed by the statute is that he shall ‘ ‘ receive and keep ’ ’ the funds. But some stress is laid upon the circumstance that while some statutes, under which the treasurer has been held to a strict liability, provide that he shall ‘‘safely keep,” the word safely is omitted from ours, and it is argued that the latter indicates the requirement of a smaller degree of responsibility. And I understand that this is the view adopted by my associates, and that upon this distinction they rest the decision of this case. That is, that by the use of the words to receive and keep, omitting any such additional words as “safely,” “securely,” or the like, the officer is simply made the custodian of the funds, and that his bond to faithfully perform the duties of his office is not an unconditional contract to safely keep the funds. Where the- custody of other property than money is involved, there might, no doubt, be a distinction between keeping and keeping safely, that is, keeping uninjured; and it is easy to perceive that such property might be kept and turned over, but in such condition as to show negligence in complying with the requirement to keep safely. But in the case of money, if it is kept at all, and is forthcoming when required, it is kept safely; and there is no issue in this case which makes such a distinction important or relevant. If the defendant had kept the money and turned it over, there could be no complaint that he had not safely kept it. In Illinois, in a suit upon the bond of a township treasurer, the defense was interposed that the money was stolen without the fault of the defendant. *383The condition of the bond was that the treasurer ‘ £ shall faithfully discharge all the duties of said office according to the laws which are or may hereafter be in force, and shall deliver to his successor in office all moneys, books, papers, securities, and property in his hands as such township treasurer, then the obligation to be void, etc.” By Section 56 of the statute he was required among other things to charge himself with all moneys received. By Section 62, he was required “to demand, receive, and safely keep, according to law, all moneys, etc.” The bond in this case being conditioned only for the performance of his duties and the turning over of the moneys £ ‘ in his hands,” and the sixty-second section providing only for a safe keeping £ £ according to law, ’ ’ it was urged by counsel that the duties of township treasurer did not embrace keeping safely the moneys coming to his hands. The court say,The fact that the township treasurer is required to receive money, and enter it in his cash boob, implies without any other special regulation, that he is to keep it, and being required to keep it, it follows that he is to keep it safely. This is one of the duties of his office he has undertaken to faithfully discharge. Another duty, no less imperative, is that he will deliver to his successor in office all moneys in his hands as such township treasurer, which he could not do, if he suffered it to be lost out of his hands, or it should be so lost by any accident. The undertaking is that the money shall be in his hands. These duties he has undertaken to perform unconditionally. Besides all this, he is’ required by Section 62 to receive and safely keep, according to law, all moneys, etc., belonging to the township.”
“We can not discover a shade of difference between this and the case of United States v. Prescott, 3 How., 578, cited by the counsel for the defendant in error. As in that case so here is an undertaking safely to keep the money by the very force of the language of the condition of the bond, independent of the provisions of the sixty-second section.” Thompson v. Board of Trustees, 30 *384Ill., 99. In State v. Neven, 19 Nev., 294, 7 Pac., 650, the condition of the bond was to “well and truly and faithfully perform and execute the duties of treasurer.” The provision of the statutes was that the county treasurer 1 ‘ shall receive all moneys due and accruing to his county and disburse the same on the proper orders issued and attested by the county auditor. He shall so arrange and beep his books that the amount received and paid out shall be exhibited in separate accounts, etc. He shall at all times keep his books and office subject to the inspection and examination of the board of county commissioners, and shall exhibit the money in his office to such board at least once a year, etc. He shall annually make complete settlements, * * * and at the expiration of his term of office deliver to his successor all public moneys, books, and papers in his possession. ”
The defendant insisted that his responsibility was simply that which the common law imposes upon a bailee for hire. The court say the duty to safely keep the money is made absolutely clear by the provisions of the statute referred to.
In Tillinghast v. Merrill, 151 N. Y., 135, decided December 1, 1896, one of the latest cases upon this subject, the statute is quoted as follows: “It is the duty of every supervisor,
“ 1. To disburse the school moneys in his hands applicable to the payment of teachers’ wages upon' and only upon the written orders of a sole trustee, or a majority of the trustees, in favor of qualified teachers.
“2. .By paragraph 8 of the same section a supervisor is required to pay to his successor all school moneys remaining in his hands.”
The court say: “In this statute it will be observed that there are no explicit declarations of the legislative intent, as in the case of town collectors, to create a supervisor the debtor of the county for public moneys in his hands, and the condition of the bond to safely keep, faithfully disburse, and justly account for the same does not *385add to the liability created by statute.” Upon the decision of the same case in the supreme court .of blew York, Martin, Justice, dissented upon the specific ground that the condition of the bond to ‘ ‘ safely keep, ” etc., imposed upon the officer no greater responsibility or liability than the statute. 77 Hun., 489. In Iowa township treasurers are required by the statute to give bond “conditioned for the faithful performance of their duties. ’ ’ The same act makes it the duty of the treasurer to hold all moneys belonging to the district, and pay out the same upon the order of the president, countersigned by the secretary. The court say: “The condition of the bond upon which this action is brought substantially complies with the requirements of the statute; it is in effect identical with the condition prescribed in the law. It is made his duty to hold all moneys of the district, and to pay them out only upon vouchers signed by the proper officers. He is bound by the obligation of the bond, not to exercise due care and diligence in the discharge of this duty, but to perform it absolutely, without conditions ór exceptions. He is to hold the money of the district. This is the provision of the law. His contract, expressed in the bond, binds him to the discharge of this duty. He will not be relieved from his contract by showing any degree of diligence or care which falls short of absolute compliance with the terms of his contract.” Dist. Township of Taylor v. Morton, 37 Iowa, 553.
The court did not recognize the nice distinction relied upon in the majority opinion in this case, that to “hold safely ” might be construed as a contract to hold without loss, while the obligation to “hold” is to be shaded down into a contract to use due care and diligence in holding. But it pointedly, rejects such interpretation of the requirement to hold the money, although, as in our own statute, the word is entirely unqualified by safely, securely, or any word of like import.
In Kansas the statute requires a township treasurer to give bond ‘ ‘ conditioned for the faithful discharge of his *386duties.” The section prescribing his duties provides: ‘ ‘ The township treasurer shall receive and take charge of all moneys belonging to the township, or which are by law required to be paid to him, and shall pay out and account for the same upon orders drawn upon him by the township trustee, and shall discharge such other duties as may be required of him by law.” Under this statute the court say: “By accepting the office of township treasurer, Me ISTabb assumed the duty of receiving and. safely keeping the money of the township, and paying it out according to law. He or his sureties are bound to make good any deficiency which might- occur in the funds which came under his charge, whether they were lost in the bank or otherwise.” Rose v. Douglas Township, 52 Kan., 452. (34 Pac., 1046.) Here there was no express, requirement that the officer should “safely keep,” or even, as in our statute, that he should “keep ” the funds; but simply that he should “receive and take charge of them.” But it is unnecessary to multiply authorities. While there are several cases, wherein the statute or the bond sued on employed the expression £ £ safely keep, ’ ’ or “keep safely,” there is, as I believe, no reported case sustaining the distinction which seems to be relied upon by the majority^of the court for the decision of this case. This view has been frequently insisted upon by counsel, but so far as the cases have come to my knowledge, has in every instance been rejected by the courts.
The majority of the court having reached the conclusion that no contract has been shown binding the treasurer to keep safely or securely the moneys of the State, declined to express an opinion upon the question what measure of liability such contract imposes when proven. In my view, the bond and the statute clearly, and under all the. authorities, constituting such a contract, there is no other question for this court to decide than the character of liability which it imposes.
It has been held by the Supreme Court of the United States, and by the highest courts of perhaps twenty of the *387States, that where, in whatever form of words, the bond is conditioned for the payment over of the public moneys, or for the keeping or safe keeping of them, .or the statute prescribes such, in substance, to be the duty of the officer, and the bond is conditioned for the performance of the duties of the office, and no condition limiting that obligation is discoverable in the statute, the obligation thus imposed upon and assumed by the officer will be deemed absolute, and the plea that the money has been stolen, or lost without his fault, does not constitute a defense to an action for its recovery; that the contract being absolute in its terms, there is no defense at law but a production of the funds, and that loss by accident or otherwise is not a defense in equity, but the allowance of such a defense would be dangerous to the public interests, and is forbidden by considerations of public policy. This is substantially the view adopted in U. S. v. Prescott, 3 How, 578; U. S. v. Dashiel, 4 Wall., 182; U. S. v. Keehler, 9 Wall., 83; Boyden v. U. S., 13 Wall., 17; Bevans v. U. S., 13 Wall., 56; New Providence v. McEachron, 33 N. J. L., 339; Inhabitants of Hancock v. Hazzard, 12 Cush. (Mass.), 112; Thompson v. Board of Trustees, 30 Ill., 99; State v. Chaft, 24 Ark., 550; State v. Harper, 6 O. St., 607; Com. v. Comly, 3 Pa. St., 372; Halbert v. State, 22 Ind., 125; Gartley v. The People (Colo.), 49 Pac., 272; Rose v. Douglas Township, 52 Kan., 452 (34 Pac., 1046); Bush v. Johnson County, 48 Neb., 3; State v. Nevin, 19 Nev., 162 (7 Pac., 650); State ex rel. Mississippi Co. v. Moore, 74 Mo., 413; Dist. Township v. Morton, 37 Iowa, 550; Board of Education v. Jewell, 44 Minn., 420; Tillinghast v. Merrill, 151 N. Y., 135; Fairchild v. Hedges (Wash.), 44 Pac., 125; Wilson v. Wichita County, 67 Tex., 647 (4 S. W., 68); Griffin v. Board of Commissioners (Miss.), 15 Southern, 107; U. S. v. Watts, 1 New Mex., 562; Omro Suprs. v. Kaime, 39 Wis., 468.
There are many other cases announcing substantially the same principles. There are some of those above *388referred to which hold that the statute has made the officer the legal owner of the public funds committed to his keeping, and for that reason they are, by the majority of this court, discarded and set aside as of no authority under our laws which do not vest the legal title to the public funds in the treasurer. I confess myself unable to understand why this feature should make those decisions of no authority in this case. If it is upon the theory that the officer is held to be a mere borrower of the public funds for his own use and benefit, and to be held to repayment as upon a promissory note. like any other borrower of money, it is sufficient to say that no court has ever hinted at any such ownership in the officer. They have held simply that the technical legal title by the statute vested in the officer. If it is because of some legal or equitable principle that while courts of chancery will relieve against the enforcement of unconscionable contracts to refund moneys which do not and never did belong to the defendant, they will not relieve against unconscionable contracts to pay out one’s own money to make good the losses of another, it is sufficient to say that no such principle exists. In the case of ordinary trustees, the legal title is in the trustee. Almost without exception in the United States the legal title to the money and personal property of the decedent vests in the executor or administrator. But in these cases courts of equity will, and constantly do, relieve from liability arising out of bonds absolute in their terms. It is therefore clearly not for the reason that the statutes have vested in the officer the legal title to the public funds that these cases hold him to a strict liability. But the fact of such technical legal title has been emphasized in those cases to make it clear that, the officer not being a bailee, the law of bail-ments did not govern, and these cases have then been determined by reference to the express contract as in U. S. v. Prescott, and the other cases taking the same view. This is made perfectly evident by the opinion in Inhabitants v. Hazzard, 12 Cush., 112. The complete *389opinion is as follows: “ A collector of taxes, by accepting the office, takes tbe risk of the safe keeping of the money he has actually received. His obligation is not regulated by the law of bailments, and the cases cited to that effect are inapplicable. He is a debtor, an accountant bound to account for and pay over 'the money he has collected. The loss of his money, therefore, by theft or otherwise, is no excuse for non-performance; this is founded on the nature of his contract and considerations of public policy. United States v. Prescott, 3 How., 578. “It being the duty of the collector to account for and pay over to the treasurer, and the excuse of loss by theft being unavailing, the sureties in the bond are liable equally with the principal.”
The tenor of all the cases holding the officer and his sureties to a strict liability is that the contract is absolute, neither the bond nor the statute providing any excuse for non-performance; that at law, it can only be discharged by performance; that therefore any excuse for non-performance must be an equitable one; that the excuse of loss of the funds, unless by the act of God or the public enemy, will not be allowed in equity, because it would be dangerous to the public interests and contrary to public policy. None of the cases, as I understand them, attempt upon ground of public policy or otherwise, to impose any liability upon the officer and his sureties other than that voluntarily assumed by them by their contract. There seems to be, however, some confusion or miscon-. ception upon this point, in some, at least, of the few courts dissenting from the prevailing doctrine. In City of Healdsburg v. Mulligan (Cal.), 45 Pac., 337, the court in concluding its discussion of the question of the application of the principles of public policy says: “ Justice does not require that the public shall be protected by enforcing against its servant, the officer and his sureties, a liability the law has not imposed upon him and which they have not assumed.” This language would seem very clearly to impute to the majority of the courts of the *390country a doctrine which is certainly not stated in their decisions, and would probably be very vigorously repudiated by all of them. Six courts, as I understand, are quoted as sustaining the minority view. Maine, in Cumberland v. Pennell; Alabama, in State v. Houston; Tennessee, in Peck v. James, and State v. Copeland; South Carolina, in York County v. Watson; California, in City of Healdsburg v. Mulligan; and Montana, in Livingston v. Woods. The Maine decision is the leading case, and out of a court composed of seven judges, the chief justice and two of the justices dissented. There seems to be in all of the decisions to which we have had access or been referred, but five in which the failure of a bank has been held to be a sufficient excuse for failure to pay over the moneys. Of these, in Peck v. James, 3 Head (Tenn.), 75, a school trustee had accepted bank notes of the Bank of East Tennessee, at that time supposed to be solvent, but which failed while its notes were in his hands. He tendered the specific bank notes to his successor in settlement. In City of Livingston v. Woods (Mont.), 49 Pac., 437, the suit was against a city treasurer, and both the law of the State and the ordinance of the city required the officer to deposit the money. In State v. Houston, 78 Ala., 581, the defense of robbery was set up, and the court held that while the responsibility of the officer under the statute fell short of an absolute liability, it was greater than that of an ordinary bailee for hire, the officer being held to the highest diligence. And the court say: “ We purposely limit the decision to the case of irresistible force. ”
The great mass of cases referred to involving the liability of trustees of private property, executors, administrators, guardians, and the like, afford no parallel whatever, and are valueless as authority. Such officers are in a great measure mere private agents. They must handle and manage the estates in their hands, often exercise their judgment and discretion, and incur the risk of loss of the trust property. If their bonds import con*391■tracts for absolute liability, courts of equity will nevertheless treat them as agents, and relieve from any greater liability. Probate courts and dhose of like jurisdiction ,are amply endowed with equity powers to afford proper relief. These matters are too well understood to require any extended comment.
In regard to the principle of public policy underlying the decisions, there is in my mind no question whatever of the propriety and necessity of its enforcement.
While Alabama is quoted as one of the States sustaining the limited liability, there is the later case from that State of Alston v. State, 92 Ala., 126, which is strongly persuasive of the other view, and somewhat applicable to the conditions under our laws. A judge of probate was sued for public moneys, and pleaded that he had deposited them in a certain bank which had failed, and there were .the usual stipulations of perfect solvency at the time of the deposit, etc. By the statute he was prohibited from knowingly converting or applying any of the money to his own use, or to the use of any other person, or permitting another to use any of it. Applying this statute the court say: “ The money of the State was thus turned over to the bank on general deposit, and became part of its funds and subject to its use as any other of its property. This use of the public money by the probate judge was without warrant of law. He had no right to convert it to his own use or permit any one else to use it. The deposit was of like effect as a loan of the money. It was an unauthorized use thereof. The probate judge -by that act voluntarily relinquished his custody and control of this public fund so that he could not reclaim it. When the State demands it, his answer is that he no longer has it, but has a claim for the amount thereof against an insolvent bank. In view of the statutory provisions above referred to we think this answer is wholly insufficient as a defense.”
So under our laws the banker becomes the owner of the money and at liberty to use it for investment, speculation, *392or otherwise. The officer is forbidden by the constitution to use for his own benefit, or make any profit from the public moneys, and he must give a heavy bond for their safe keeping. But of what use or benefit to thé people is a bond, if he may immediately turn over the public funds to some other person who may and does and is expected to use them for his own purposes; and that, too, without any security whatever? The bond is a meaningless form if it is not to secure to the State repayment of its losses under such circumstances.