The Montgomery advertiser., 1902-07-10

TreasureT's sureties FOR a misfeaSance or
nonfeasance of the Treasurer, as to the
collection of this check, as to which the
law put no duty upon him. As between
the county and the suretics, the case falls
within the principle that where one of
two innocent parties must suffer, he who
II most at fault must bear the loss. AS the
sureties are not at fault as to this mat
ter, the loss can rot be put upon them.
1.-The doctrine of estcppel which has
been pressed by the counsel of the coun-
ty, cannot arise in this case for two rea-
sons: First, the sureties did not agree
to be bound by the acts or representa-
lions of Cochran as to this fund, until
after he had legally received into his
possession the proceeds of the sale Of the
bonds in cash. Second, If the estoppel
could arise on the ground that the bonds
had been delivered in reliance the rep
Fascination that the Treasurer had re-
ceived the price of them in cash. the evil
dence in the case shows that the essen
tial elements to the creation Of the es-
TOPPED are lacking. Allen was agent Of
the Board in the matter of the delivery
of these bonds 1t was his duty to coll
lect the price. Although ne received
receipt from the treasurer, acknowledge
ing that the Treasurer had received from
the Board of Revenue the amount of
money corresponding to that price. he
knew that the Board had paid nothing
whatever to Cochran on that account. He
knew the check had been received by
Cochran, and that the check had come in
to his possession and he returned 1t to
Kohn, and said he didn't want it: he
didn't need money in his business He
said also, he supposed Kohn had depos-
tied the check in favor of the Treasurer
in the bank. He thus knew that the re-
pai - sc
ed from the Board on its face stated
fact which did not exist. That receipt
so far from deceiving him or misleading
him, should have put him on his guard
when he knew a check had been received
by the Treasurer He didn't ask If the
money had been collected, and he didn
tell Kohn to bring him the money, or
get the actual cash. and give II
to Cochran. He says when he de-
livered the bonds ne supposed the check
had been deposited in bank in favor of
the treasurer. This would kill any estop-
pei, If 1t could otherwise arise on the
theory that the agent of the county was
misled into delivering the bonds, and did
so on the faith that the price Of the.
bonds had been actually collected in cash
by Cochran before the bonds were de-
livered to Norris and Company.
l have not been able to resist the con-
cluslon, after careful examination of the
statute and hearing the elaborate argu-
ment of counsel as to its proper construc-
ton. that the Legislature intentionally
used the words. which show a plain design
on its part. to put on the Board of Reve-
nue.. the whole duty of looking after the
issue, negotiation and sale of the bonds,
their delivery TO the purchaser and the
collection of the price thereof in cash,
with the further duty to turn over the
proceeds of the bonds to the treasurer
after the Board had collected them. The
design of the law seems manifest that all
these important duties were to be looked
after by the Board of Revenue, and were
in no wise to be dependent upon the per-
Torrance of any act by the treasurer In
connection with any of These duties.
There are many reasons of convenience
and policy why this should be so. The
law intended to keep the whole matter
of the sale of the bonds, and the collec-
ton of the price thereof, and the turn
ing over of the proceeds to the treasurer,
in the hands of the Board In no other
way in such a carefully drawn statute
can we account for the language, which
is deliberate and plain, fixing restricted
liability or responsibility on the treas
urer and limiting that only as to the
safe keeping of the proceeds which
cone into his hands" If it was intended
for the treasurer to perform any duty in
any of these matters (save as TO the one
specified put on him), which were Afr
matively committed to the Board, why
did not the act place some duty on the
treasurer as to collecting the price? Why
did it use language, which by restricting
the treasurer's duty to one thing, and
one thing only, for which he should be
responsible, certainly excluded the idea
of responsibility and duty as to all the
rest? The only answer Is, that the Aegis-
Iature contemplated that 1t had clearly
fixed all these duties upon the Board and
1t was. therefore, necessary and proper,
only to fix liability on the treasurer Tor
the ''safe-keeping'' Of the fund after 1t
had come into the treasurer's hands"
The language of the act to that effect
is plain and Enthusiastically. II we wrench
a different meaning from that conveyed
in the plain nEglish of the statute, we
trampIe down all rules of construction
overthrow the will of the Legislature.
and put a liability upon the sureties
which is unjustinable for the reasons
stated and also because statutes ana
contracts must be construed strictly
rather than literally and resolved IN
| their favor of sureties in case OF DOUBT.
This is the theory of the law which has
COntTOlled lne court III 10
| throughout the entire case, which makes
| It the duty of the court to give the jury
the preemptory instructions as to the
verdict which the law demands upon the
case now before the court The tault
with the county's case is not that 1t has
| not been earnestly urged, but that noth-
ing can change its facts, upon which the
law pronounces against 1t as TO TINS ROAD
and bridge fund.
"The court charges you to render a
verdict In favor of the PLAINTIFF against
both the defendants for the sum of $S6' :
$685."
throughout his remarks Judge Jones
mas given the closest attention by the
Jury and upon the conclusion OF ms
| charge the foreman, j. p. Johnson wrote
the verdict according to instructions.
There was some further discussion OF
the case between the lawyers and shortly
after II o'clock the jury was discharged
| and the court adjourned.
United States Army.
..Wyho ore tho friends Of the army?"