After defendant’s retirement from the office of State Treasurer it became necessary for the state to incur $4,-771.73 of expense in causing the State Treasurer’s books for part of the time he was in office to be posted and audited; and this suit is to recover of him and of the surety on his official bond that amount, as being the necessary cost of work which it was the duty of the Treasurer to do while in office, and which he failed to do.
By Acts 29 and 38 of 1920 the Governor was authorized to have this work done, and an appropriation was made to defray the expense of the audit part of it.
An exception of no cause of action was sustained below, and the suit dismissed.
[1] The first ground of the exception is that the suit is founded upon the' said. Acts 29 and 38, and that the Legisláture could not retroactively impose duties upon the Treasurer.
Suffice it to say of this ground that the suit is not founded upon said acts, but upon the alleged fact that the state had to spend *475tliis money for having work done which under the law (R. S. § 3769 et seq.) in force at the time defendant was. in office defendant was obligated to do and was paid for doing, and which he failed to do.
[2] The other ground is that the relation between the state and her officers is not contractual; and hence that for failure of one of her officers to perform some ministerial duty no right of action arises in her favor against the officer.
The law may be said to be well settled to the effect that delinquency in a ministerial duty on the part of an officer gives rise to a civil action against the officer in favor of any person who suffers special injury therefrom. Whs', if the state suffers special injury from suc-h delinquency, she may not in a like manner be entitled to indemnification, we do not see. The suit is not then contractual, but in damages resulting from the breach of a statutory duty due to her.
[3] The expense in question, however, was incurred in párt for auditing the books — a duty not imposed by law on the treasurer. As to the auditing part of the expense, therefore, the exception of no cause of action was properly sustained.
[4] The condition of the bond of the surety being that the officer “shall well and truly perform all and singular the duties incumbent upon him,” the surety is, of course, liable in the same measure as the officer for nonperformance of duty by the officer.
The judgment appealed from is therefore affirmed in so far as the strictly auditing part of the expenses sued for is concerned, and it is set aside, and the exception of no cause of action overruled in all other respects; the costs of appeal to be paid by defendants.'
O’NIELL, J., hands down a separate opinion to the effect that the exceptions of no 'cause of action should be overruled.