(dissenting).
I find myself unable to concur in the majority opinion. The principal question in the case is as to the construction-of the bond contract entered into by the surety company November 3, 1924, as surety on the bond of Norby as school treasurer. The pertinent provisions of the bond are set out in the majority opinion. There is,- of course, no dispute that relevant statutory provisions enter into such a contract. The suggested statutory provisions are set out in the margin.1
Norby was elected scbool treasurer on the first Saturday in August, 1924, in accordance with section 2807, but be did not file his bond until November 4, 1924. He was re-elected on the first Saturday in August, 1925, but did not file his bond for that term until November 12, 1925. On the last-mentioned date, he failed to turn over to himself, as his own successor, the full amount belonging to the school funds on that date.
In August, 1926, one Hanson was elected to succeed Norby. Hanson filed his bond November 8, 1926. Shortly after that date, Hanson made demand on Norby for the amount then belonging to the school. funds, but Norby failed to turn it over.
There were thus two defalcations by Nor-by : The first in November, 1925; the other in November, 1926; the latter included funds other than those included in the first.
The present suit pertains to the defalcation of November, 1925, and was brought on the bond filed November 4, 1924. The trial court held that the surety company was liable.
1. The majority opinion reversing the trial court is based upon the theory that section 2813 calls for the filing of a bond by the school treasurer within ten days after his election, and that in the ease at bar, failure on the part of Norby to file the bond within-*183that time created a vacancy in the office; and a vacancy having thus been created, that the case of County of Scott v. Ring, 29 Minn. 398, 13 N. W. 181, determines that liability on the part of the surety on the bond no longer existed.
In my judgment, the failure to file a bond within the ten days limited for filing acceptance and the oath of office resulted not in a vacancy but in a hold-over; and the Ring Case, therefore, is not applicable, since the statutes relevant in that ease expressly created a vacancy, while the statute relevant to the case at bar did not, in my judgment, do so either by express words or by implication. The bond of the incumbent in office (Norby), in my judgment, continued in force by its express terms until the filing of his second bond November 12, 1925.
In the absence of constitutional or statutory provisions expressly creating vacancies, the Minnesota courts favor the rule that the present incumbent holds over until his successor is elected and qualified. Taylor vSullivan, 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729; State ex rel. v. Weber, 96 Minn. 422, 105 N. W. 490, 113 Am. St. Rep. 630. It may he that the court, in these two eases, overlooked a provision of the Constitution of the State of Minnesota and, therefore, reached an erroneous conclusion; yet the opinions indicate the views of the court on the assumption that there were no constitutional or statutory provisions expressly creating a vacancy.
2. The majority opinion appears to hold that Norby was elected to the office of school treasurer about August 1, 1924, but that a vacancy occurred in the office about August 10, 1924, by reason of his failure to file his bond, and that this vacancy continued until November 12, 1924, when Norby filed his bond; that upon the filing of the bond, Nor-by, in some way not clearly explained, filled the vacancy theretofore existing and again became school treasurer.
The same situation occurred again in 1925 and in 1926. Norby was re-elected school treasurer in August of 1925. He did not file his bond until November 12, 1925. Hanson was elected school treasurer in August, 1926. He did not file his bond until November 8,1926. ¡
If the majority opinion is correct, a vacancy again occurred in the office about August 10, 1925, and continued until November 12, 1925, when Norby, upon filing his bond, again filled the vacancy and became school treasurer; and a third vacancy occurred about August 10, 1926, and continued until November 8, 1926, when Hanson filed his bond.
I cannot agree with this holding. It seems to me that the statute never contemplated such a result as leaving a hiatus in the office of several months each year; and that a construction of the statute which leads to such a result is unreasonable and must be wrong. Clearly such a construction of the statute and such a situation were not in the mind of the surety company when the bond was executed in November, 1924; or when the second bond was executed in November, 1925; or when Hanson’s bond was executed in November, 1926. The recitals and provisions of the bonds plainly indicate to my mind that the parties thereto proceeded on the theory that Norby was eleeted to the office of school treasurer in August, 1924, and that no vacancy occurred thereafter, but that he was holding over as treasurer when the second bond was executed in November, 1925, and continued to bold the office until November, 1926, when Hanson filed his bond.
The evidence shows that the delay in the execution and filing of the bonds was not an unusual one, and such delays were well known to the surety company.
The trial court found as a fact: “That one William J. Norby was the duly elected, qualified and acting treasurer of the plaintiff school district during the times hereinafter referred to.” The times referred to ran from November 3,1924, to November 10, 1926. In, my opinion, there was substantial evidence to sustain the finding.
The holding of the majority opinion that there was a vacancy from about August 10, 1925, to November 12, 1925, is, in my opinion, not warranted either as a finding of fact or as a conclusion of law.
3. The parties themselves have construed a similar bond contract as covering a similar hold-over period. As above stated, another defalcation in this same office occurred in November, 1926. The last yearly term of Norby had expired in August, 1926. The last bond of Norby had been given in November, 1925. Yet the surety company paid the bond, clearly showing that the parties construed the bond contract as covering a holdover period, until a successor was eleeted and had qualified.
I am of the opinion that liability existed on the part of the surety company in the ease at bar, and that the judgment should be affirmed.
Section 2807, General Statutes 1923, as amended (Laws 1925, c. 124): “Within ten days after the election of the first school board in independent districts, and annually thereafter on the first Saturday in August, or as soon thereafter as practicable, the board shall meet and organize by choosing a chairman, a clerk, and treasurer, who shall hold their offices for one year, and until their successors are elected and qualified. They may also elect a superintendent for such a term of service as the board may determine not to exceed a term of one year. He shall be ex-officio a member of the board, but not entitled to vote therein.”
“2813. Aoceptwice of office. — All persons elected or appointed district officers shall, within ten days after notice of such election or appointment, file with the clerk or ^secretary of the district his ac-
Section 2761, General Statutes of 1913, as amended (Laws 1925, c. 69): “Every school district treasurer shall give bond to the state in a sum equal to twice the amount of money that will probably be in his hands at any time during any one year of his term, the school board to fix the specific amount of said bond, and said bond to be approved by the board and filed with the clerk, conditioned for the faithful discharge of his official duties. Provided, however, that if said bond so furnished by the treasurer be that of a surety company authorized to do business in Minnesota then the amount of such bond shall be equal to the amount of money that will probably be in his hands at any time during any one year of his term, the specific amount of such bond to be fixed by the board. The school board may at any time by a majority vote require the treasurer to give a new or an additional bond, and upon his failure to furnish same within a reasonable time after notice, the board shall declare the office of treasurer vacant. Any bond hereunder, before approval by the school board, shall be approved as to its form by the public examiner, county attorney or an attorney 'designated by the school board.”
Vacancy Statute
“6953. Vacancies. — Every office shall become vacant on the happening of either of the following events, before the expiration of th-e term of such office '. * * *
“6. His refusal or neglect to take the oath of office, or to give or renew his official bond, or to deposit or file such oath or bond within the time prescribed.”