dissenting:
The appellant John B. Lovingston was, in 1875, appointed township treasurer for town 2 north, range 10 west, in St. Clair county, and in March, 1876, was re-appointed to the same office, and held the office until April 23, 1877. During his first term, and prior to March, 1876, he received, as such treasurer, from the city cleric for the city of East St. Louis, from time to time, city scrip or city warrants to the amount of about $10,000. These warrants were drawn and delivered to him by the city clerk in payment of one-half of the funds arising from dram-shop licenses collected by the city officers. These warrants were paid to him by reason of section 12, article 7, of the charter of East St. Louis, which directs one-half of the moneys arising from that source to be paid to the township treasurer of this township, for school purposes. These city warrants, for want of money in the city treasury to pay them, were at a discount of about 30 per cent, being worth in the market about 70 cents on the dollar. During his first term as treasurer, Lovingston was directed by the board of trustees of his township to sell these city warrants to the best advantage, for the benefit of the school fund. He entered upon negotiations for that purpose, and succeeded in converting them into money, at par. This was accomplished by inducing the city officers to issue bonds in lieu of the scrip, payable on long time, and at ten per cent interest per annum, and these bonds he sold to bankers and brokers in the city of St. Louis at par, and thus realized for the school fund, in cash, an amount equal to the face of the scrip. The bonds were sold some time in the month of March, 1876. About the beginning of his second term, March 4, 1876, he executed a treasurer’s bond, with Albert Meintz, John M. Sullivan and A. X. Illinski as sureties, conditioned that Lovingston should faithfully discharge all the duties of said office of township treasurer according to law, and should “deliver to his successor in office all moneys, books, papers, securities and property in his hands as township treasurer,” and entered upon the duties of his office for the second term as such.
After the money was realized by the sale of the city bonds, as above stated, and on the 15th of April, 1876, the board of trustees of schools for that township made an order that Lovingston should be paid, in compensation of his services in the disposal at par of this city scrip, the sum of $1481.25. This order was duly adopted, and recorded in the proceedings of the board, and signed by the president and clerk thereof. This sum was accepted by Lovingston in compensation for the services, and on June 3, 1876, he entered a credit to himself, in his account as school treasurer, for that amount. In the spring of 1877, John Benshaw was appointed township treasurer for that township, instead of Lovingston, and qualified as such, and became Lovingston’s successor on the 23d of April, 1877. Soon after this, Lovingston settled with his successor, and turned over to him all books and property belonging to his office, and paid over and accounted satisfactorily for all moneys of the township ever received by him, except this sum of $1481.25.
It is insisted by appellees, that (inasmuch as the statute requires the salary of the township treasurer to be fixed before he shall enter upon the duties of his office, and that he shall receive no other compensation as such for his services, and inasmuch as Lovingston was receiving, under that provision of the statute, during both of his terms, a salary at the rate of $1000 a year,) the allowance made to him as compensation for the services rendered in converting this scrip into money for the benefit of the school fund was an unlawful and an unwarranted act, and of no legal effect, and hence that it was the duty of Lovingston, at the close of his term, to have paid over that sum to his successor.
The first question which presents itself in this case is, were the services performed by Lovingston in disposing of this scrip a part of the duties of his office ? I think they were not.
By section 32 of chapter 122, Revised Statutes, 1874, the township treasurer is an officer to be appointed by the board of trustees, and his term of office is for one year, unless removed for cause by the board. His duties are defined in divers sections of that statute.
By section 62 it is declared, that the township treasurer shall demand, receive and safely keep, according to law, all moneys, books and papers of every description belonging to his township. The form of the bond which he is required to give by section 55 of the same act, indicates, too, that he was to be the custodian of the moneys of the township.
By section 39 it is provided, that the proceeds arising from sales made by the board of trustees, of any school site or building shall be paid over to the treasurer. It may, therefore, be assumed that the city scrip, and the proceeds of the city scrip, were in the hands of Lovingston, as treasurer, and that it was his duty to safely keep them, and appropriate them in such manner as was provided by law, or as might be directed by the board of trustees of the township. He was authorized, as already stated, by section 62, to demand the money from the treasurer of the city of East St. Louis upon these city warrants. That duty, it seems, he performed, and no charge or allowance is made for that service.
It is suggested by appellees, that it was his duty as treasurer to bring suit against the city, and collect the money by due course of law- I find no provision in the statute requiring the treasurer to bring suits in behalf of the township, in all cases where suits may be necessary or proper. He is required to do so in certain specified cases, but this case is not one. Section 46 authorizes him to sue the county collector if he shall fail to pay over the amount of tax coming to his hands for school purposes of the township. By section 60 the township treasurer is required to institute suits for the. recovery - of money or loans, in all cases where the borrower shall fail to give additional security, when additional security is required by the board of trustees. And by the same section, Avhenever a debtor owing school money shall die, it is made the duty of the toAvnship treasurer to present the demand against his administrators or executors, and to attend the office of the probate justice on the proper days, and cause such debts to be properly probated and classed, so as to make them preferred debts. And by section 61 the toAvnship treasurer is authorized to bring suit for interest that may fall due upon a note dr bond before the principal, without suing for the principal.
No other provision is found in this statute authorizing the treasurer to bring suits on his own motion, or at all. In all cases, other than the cases specifically provided for in the statute, (in Avhich it was made the duty of the treasurer to bring suit, or in which he was specifically authorized to bring suit,) the question Avhether suit should or should not be instituted, is left by the laAv as a question to be determined by the board of trustees of the township, and not by the treasurer. The treasurer, on his own motion, had no authority to institute a suit in the name of the board of trustees, or otherwise, except in the cases specifically provided in the statute. He had, therefore, no authority to institute action against the city of East St. Louis for the collection of that money named in these city Avarrants, without an order of the board of trustees, nor is there any provision of the statute Avhich imposes upon him the duty of negotiating the sale of these city Avarrants. The board of trustees might, had they chosen so to do, have authorized any other agent to negotiate such sale. It is true, when the sale was consummated, — the bargain made, — it might be necessary for the treasurer to indorse the certificates in order to perform the contract or sale.
I see no reason, if it Avas thought wiser by the board of trustees to procure this money through negotiations and sale of the city scrip than to incur the expense and delay of litigation with the city of East St. Louis, why it Avas not lawful for them to pursue that course, and I see no reason why they might not employ Mr. Lovingston to perform that duty, as well as any other agent. It is not claimed, nor is there any evidence or allegation in this case, that the amount allowed for the services was unreasonably large, or that any officer in this connection acted in bad faith.
If all this be so, after the allowance was made by the board of trustees, and after Lovingston had accepted that amount as compensation, the money became that of Lovingston, and ceased to be that of the township. He no longer held it in his hands as treasurer.
But even if this were not so, it is provided by section 64, of the same statute, that “for any failure or refusal to perform the duties required of the township treasurer by law, he shall be liable to the board of trustees, * * * but if said treasurer, in any such failure or refusal, acted under and in conformity to a requisition or order of said board, entered upon their journal, and subscribed by their president and clerk, then, and in that case, the members of said board aforesaid, or those of them voting for said requisition or order aforesaid, and not the treasurer, shall be liable,” etc.
In this case, Lovingston, in his failure to pay over the sum of money here claimed, “acted under and in conformity to an order of said board, entered upon their journal, and subscribed by their president and clerk,” and acted in good faith. It is not perceived why this section 64 does not protect him as treasurer against any statutory liability as such arising out of such error, if it were error. If it does, his sureties are not liable for the error. If the allowance by the board was unlawful, and Lovingston made himself responsible as an actor, this affects him personally only, and can not affect his sureties.
It is suggested that Lovingston was not authorized to accept from the city of East St. Louis, for the amount due from that city on account of dram-shop licenses, city warrants, but should have demanded, originally, the money. Be this as it may, whatever default there was in accepting the city warrants was a default that occurred in the discharge of his duty during his first term, and the facts were reported and known to the board of trustees before he entered upon his" second term; for the case shows, that before that time he had been directed by the board of trustees to dispose of these city warrants. The sureties who signed his bond on the 4th of March, 1876, made themselves liable for his conduct during the term upon which he was then entering. They can not be held responsible for any default or official wrong which occurred before that time, unless L'ovingston was guilty of some default in connection with the same transaction after the execution of the bond. .
I think the judgment in this case is erroneous, and should be reversed.