The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-08-29
Reply of Acknowledgement Hord

Reply of Attorney General Hord.
In giving his opinion upon the questions asked
in the foregoing communication the Attorney
general says:
most respectfully submit. first, that, in my
opinion, the appropriation made for the purpose
OF procuring necessary locks safes aud vaults
TO render the public funds secure against fire
and BURGLARY is a continuing appropriation, and
u syaiable for said purposes. (R. 5. 1881, sec.
5,633) A continuing appropriation can be la W.
fully made by the Legislature (Ristine vs. The
State, 20 Ind, 1923, 33S, 339, Ristine VS. State
~ IND, 349, 357; Lange VS.. Stnyer, 10 Ind, 175;
40 Ala, 42O; Ind, 1S9; 81 Cal, 1913; Neb.,
216)
2; The statute provides for the employment
only for the protection of the public
money. There is no appropriation whereby
other guards can be employed, or paid for such
8. Under the statutes IL. S. 1881, sec. 1888,
1856, 5,63S) the Treasur of State is rendered Il
bailee of the public money. UNITED States VS..
Pennell, 90 Me 1857; York County vs. Watson,
40 Amer. r., 675 677 Al Amer R., 322 State
But the liability of the Treasurer is not meas
ured by the rules founded on the doctrine of
osliment, but by the stipulations of his bond
and the terms or the statute. The
Treasurer must give bond, wherein it
Is provided that he "shall faithfully
discharge the duties of his office; that he shall
oe liable FOR the fidelity of all persons by him in
trusted and that he Will render Just and true
accounts of the condition of tue treasury of
SuaUe, WHEN required by law. and at the end of
ms term, or sooner, and at the expiration of nis
office, he will pay and deliver to his succe ssor,
or To such person as may be authorized to re-
ceive them, all moneys, securities, assets and
property of every kind belonging to the treasury
of state, in his hands Treasurer of State or in
the hands OF any OF his employees. (R. s., 1881,
The statute further provides: "He shall ac-
count for, and pay over all money which may
liver all hooks, moneys, vouchers, securities and
effects OF his office to his successor" (R s. 1884,
Sec 5,647l
The statute requires all efficient bonds to be
acknowledged hy principal and sureties (R. 8.
1881, Sec. $3.50, and when 50 aeknowled ged the
sureties to the official bond, or between the
principals, ana IL is not competent for any sure
~ IN such bond TO set up as a
breach 1 coDd4on ooaSnf for
matter which would not be available as a de-
tense to the principal III such bond. r. s..
1881, sec. 5,534)
THE TREAsURER's RESPONSIBILITY.
The responsibility of the State Treasurer, in
the absence of the statute. ana the provisions of
the bond prescribed by the statute, would be
measured by the common law rule, founded on
the doctrine of bailment. He would be required
virtutO offici TO good faith and reasoua-
bile skill and diligence in the discharge of his
duty And he would not be responsible for any
loss occurring without any fault on his part II,
In sncn case, more stringent obligation
be exacted by express stipulation. The Legis-
lature can, undoubtedly, at its pleasure, change
the common law rule of responsibility with re-
gard to the public money.
II is the manifest policy of the law to hold all
collectors, receivers and repositories of the pub
lie money to very strict accountability No
ordinary excuse can BE- allowed for the nonpro.
ducti0n of money committed to their hands The
State Treasurer is a special bailee. subject to
of law as TO bailment cannot be
invoked TO determine the degree of his RESPONSE
bihty. TINS, by The statute and his bond, is put
on II new basis To the extent of the amount of
his official bond, it is fixed by special contract,
and the general policy of the law as to his
general responsibility for the amounts not COW
cred hy the bond may be fairly presumed to he
The same. The liability of "a bonded officer may
be considered IN two-foid aspect. First, the
second, that arising from the condition
of his bond. The first is duty which the
law imposes, and the second is
duty which lie expressly contracts 10 perform.
The first Is governed by the principe OF the COM
mon law the other by the terms and conditions
of the bond and statute, ana If n person binds
IA certain act, Internationally, he must he held
by the stipulatOns of the contract, because such
Is the agreement he has made. Tue liability of
the Treasurer is TO be measured by the statute.
and his bond, and that binds the Treasurer to
pay the money. aud there can be excuse for
non-perfornance, except loss by the act of God
or the pubic enemy.
UNITED States vs.. Thomas, Is Wall, 337; Bayden
VS.. United States, 3 Wall, II; Beyan va United
States 10 Wall, 57 United States Dashiel, 4
Wall, 1872; United States VS., Gibbs, II How, u.
s. R, l54; United States VS.. Prescott, 3 How.
u s. r., 57s;. UniIrd States VS.. Humason, 6
SAW, U. s. r., 1885, Conith VS.. Comfy, 3 Pa St,
372; 80 Amer. r., 462: 80 Amer. r., ia; 40
Amer r., G75; Al Amer. r., 1922; Clay county
va. simOnsou, Dakota r., 49, same VS.. same,
] Dakota; 4Q4; United States Watts, l New
Mex, $50; Holman vs.. United States, IL CT. of
Cl.. 6I2; State VS.. Clarke. 70 N. c., 255; Ravens
VS. Thalrem, as N c., sos; State VS.. Blair, 76
n e., 7s; New Providence VS.. McIackron, 80 N.
j. L., 800; Cent. l.. Jour, 1876; Hahert vs. Tho
State, % Ind, 1875; Morbeck VS.. The State,
81 Ind, 2l2; LinvIlle Levinger, 70 Iud.,
491; Hart VS.. Putsburg, ST. Pa. ST., 466; % Ark.
26i, 272; Brandt on Suretyship, sec. 472; 8
Cent. L. Jour, 1859
A loss by conflagration, not produced by the act