dissenting.
Mr. Mechum, in his work on public officers, discussing the question of what loss occurring without his fault will excuse an officer from liability, says there are at least four theories. The first, that the officer having bound himself and his sureties without reservation by the express terms of his bond, this obligation can only be discharged by making such payment. The second, that he should be held to a strict accountability for the public money upon the ground of public policy. Third, that by force of the statutes governing the subject he becomes the debtor of the public for the moneys in his hands, and his liability therefore becomes absolute. The fourth view, he maintains, is more consonant with reason and justice, although the cases which maintain it are few. He states it as follows: “ By this view the officer is regarded as standing in the position of a bailee for hire and bound virtute officii, to exercise good faith and reasonable skill and diligence in the discharge of his trust, or, in other words, to bring to its discharge that prudence, caution, and attention which careful men usually exercise in the management of their *225own affairs, but not responsible for any loss occurring without any fault on his part. The statute may of course impose, or the officer may himself assume, a more onerous responsibility, but in the contemplation of this theory, a greater liability does not result from the simple undertaking to faithfully discharge the duties of the office.”
An examination of the authorities which sustain them, discloses that the distinction between what are here classed as the first and second theories is very narrow, if it exists at all. They hold alike that the officer and his sureties having entered into an obligation to pay, without reservation or qualification, loss of the funds without negligence or fault will not excuse performance. Some of them assign considerations of public policy as one of the reasons why such loss can not be allowed as an equitable excuse for non-performance, while others do not mention it. Even in cases decided upon the third theory that the officer is a debtor, the distinction is slight. For in such cases also the liability is measured by the terms of the contract of the bond and the technical ownership by the officer of the public funds is emphasized only as rebutting the claim that his liability is governed by the law of bail-ments. With reference to the fourth view under Mr. Mechem’s classification, it is to be observed that the language by which he describes the degree of the officer’s responsibility is quoted from the opinion in Cumberland v. Pennell, 69 Me., 357, the leading case supporting that view; and in that case the words are employed to define the common law liability of an officer ‘ ‘ in the absence of any statute enlarging it. ’ ’ And in the same case, after reciting that by the Maine statute the only condition required in the bond is “ for the faithful discharge of his duties,” it is said the officer “ might enter into a common law bond making him liable at all hazards.” And, in spite of some caustic criticisms of other decisions, the only important distinction actually insisted upon in the Maine case seems to be that the mere enumeration of additional duties in the statute does not have the effect, to increase *226the degree of the officer’s responsibility. And the court do not attempt to escape from the principle that, if an absolute liability is imposed by statute or assumed by the terms of the bond, such absolute liability must be enforced.
From a consideration of the reasoning of the authorities, thus briefly reviewed, I am of the opinion that the conclusion reached by this court upon the principal proposition in the pending case' can not be sustained upon the principles enunciated in any of the cases, including all those adopting what is termed the more liberal rule.
In State v. Gramm, 52 Pac., 532, the majority of this court held the officer and his sureties not liable, upon the ground that the bond containing no express obligation to pay over the funds, the obligation to keep such funds was not tantamount to an obligation to “ safely ” keep them; and that he was therefore excused' upon proof that he had performed his duties with fidelity and with reasonable skill and diligence. But the conditions of the bond having special reference to the liability of the treasurer in this action are that he ‘4 shall pay, according to law, all moneys that shall come into his hands as such treasurer, ’ ’ and that he “ shall deliver over to his successor in office, or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto, or belonging to his office of county treasurer.” Here is an obligation without reservation or qualification entered into by the officer and his sureties that he shall deliver over to his successor all moneys belonging to his office. By force of it, in my opinion, even under the reasoning in Cumberland v. Pennell, and like cases, the county ought to recover. It is an express contract, and the common law rule .of liability no longer applies,
But the majority of the court in discussing the latter clause of the condition say: “It strikes us as illogical and unreasonable to say that when an officer handling public funds has solemnly contracted to keep them safely, that he thereby becomes an insurer of their safety, and *227then to hold that without such an agreement one will be imported into a covenant to deliver all money belonging to an office to a successor. ’ ’ In my opinion a covenant to deliver the moneys to his successor imports a covenant to keep them safely, because unless he has kept them safely he will be unable to deliver them. But just preceding the last words quoted the court uses this language, “Whether the agreement of the bond amounted to a promise to pay to the successor all money received and not paid out on orders authorized by law, depends upon a consideration of the question whether that money so lost continued to constitute money pertaining to the office in the sense in which those words are employed in the bond; and the answer to that question depends upon the character or degree of the responsibility of the treasurer for the safe keeping of the money, and whether if such responsibility is not absolute, the circumstances are such as to exonerate him from liability for said loss.” I am unable to assent to this method of construing the contract. The words seem to be used in their ordinary meaning. Whether the moneys belonged or appertained to the office is a question of fact. Whether the officer was strictly bound or not bound at all for their safe keeping, they belonged and appertained to the office until disposed of according to law.
Of course, if the funds are finally lost or destroyed, they can not be said to belong to the office, because having disappeared or having no existence there can be no title to or ownership in them. But that they can not be said to belong to the office after they are lost is unimportant, from the fact that the responsibility for such loss is the very subject matter of this suit. I do not understand, however, that counsel for plaintiff in error rely upon, or that my associates have sanctioned any such juggling of words as would be involved in such a construction. And I think it is clear that within the meaning of the contract they belong to the office until disposed of according to law. Under any other interpretation the words of the *228bond would be entirely nugatory. For if the funds are deemed as no longer belonging or appertaining to the office when they become unavailable by the failure of a bank, the same result would follow in case they had been embezzled or otherwise misappropriated by the treasurer himself. They would in both cases be unavailable, and upon the same reasoning no longer belong or appertain to the office. In my opinion the words have only their usual and ordinary meaning. Property is said to “belong ” to an individual when he is rightfully the owner of it, when he has not been lawfully divested of the title. There is nowhere in the bond or the statutes any intimation that the words are used otherwise in this case.
But, in my opinion, Section 7 of Art. 15 of our constitution is strongly persuasive of the liability of an officer in this State in a case like the present, where the funds were deposited in a private bank without security. It provides for the deposit of public moneys in national banks, or banks incorporated under the laws of this State, provided such banks shall furnish security to be approved as provided by law. It is said that this is inoperative, because the Legislature has never provided for the approval of the security spoken of. I am not in sympathy with any method of legal interpretation by which the act, or failure to act of the Legislature may be permitted to defeat a positive provision of the constitution. While it is true there is no power anywhere to compel legislative action, the courts are not absolved from the duty of giving such force and effect to every provision of the constitution as is practicable in the absence of appropriate legislation. And it can not be doubted that this clause was so far operative, at least, that it was the duty of the Legislature to make such provision. Flor can it be doubted that it is so far operative that since its adoption the Legislature has no power to direct or authorize the deposit of public moneys in a private bank without security. If the Legislature then could not direct or authorize such deposit in a private bank, it is going very far to say that the *229treasurer without such legislative authority may do what the Legislature is prohibited by the constitution from authorizing him to do, and yet be held harmless in case of loss. And if it is meant that it is inoperative because the treasurer, by reason of such failure of the Legislature, could not substantially comply with its requirements, it is scarcely true that he could not haye substantially complied. He could have deposited íd a bank of the kind prescribed. He could have taken security for the deposit, and, whether approved under the provisions of any statute or not, such security would have been valid and binding as a common law obligation, and would have protected the county against loss.
It is also strongly persuasive that the rule of strict liability should be adopted by this court, that at the time the statutes governing this subject were adopted, Wyoming was a territory and the Supreme Court of the United States was its court of last resort. That court has always adhered to the rule of strict liability, never going farther than (as in U. S. v. Thomas) to except' cases where the loss was by the act of God or the public enemy. By a familiar rule, when the Legislature of the territory adopted those provisions they did so with the construction already placed upon them by that court.
I am of the opinion that the evidence was properly excluded and that the judgment should be affirmed.