The San Francisco call., 1905-08-31

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an injunction to prevent the Aetna
Company from withdrawing from his
bond Judge SeaweH says:
The statute does not provide any procedure
Dy which the surety upon an official bond
shall withdraw from the bond otherwise than
oy Ming his declaration OF his desire 20 so
and giving the reason for such action
m rssrTs 50 much OF the prayer as seeks
the bond IS or no moment, because the surety
does not Withdraw from the bond, but After
other bond is filed by the officer, il Is the duty
OF the Mayor and the Auditor to declare he
: declaration, the office being vacant, the SURF
" is released from all further liabilities
thereafter accruing on the bond
The surety having already done all that Il
could 90. the injunction sought is really TO re-
strain the Mayor and the Auditor from de- [
claring the plaintiff office vacant and releas-
ing the surety from all further liability. 1t Is
contended on the part Of the plaintiff that the
surety had no right to withdraw from this
bond by reason of its contract with the plain
tiff. having accepted a premium before going
on the bond and having also accepted the sum
OF $1,000 deposited with it as further security
So far as the $1,000 is concerned / hnd from
the evidence that such was deposited to in
demn1ry the surety from a particular class OF
liability, that Is from the expenses Of Htiga-
tion
It appears that two suits have already been
begun against the surety here jointly with
the plaintiff. one TO recover $4,000 and the
other 10 recover S25. GOO damages: and the
reason given by the surety in its statement
filed with the Mayor and the Auditor OF its
reason from Withdrawing from the bond Is
that IL fears loss IL IL remains on the bond
That statement appears to have been con
frmed by the fact that 1t has already been
made defendant in two suits for sums aggre-
eating $4,000 Some evidence was offered
tending 10 show that there was no reason for
this apprehension on the part Of the surety.
NO POWER TO INVESTIGATE.
The requirement that the surety should
WI drQ Q~Vf0 ha
bond in my opinion was not inserted for the
benefit Of the officer at all or 70 satisfy him
in any respect. IL is simply for the benefit OF
the public that the public might know when
surety withdraws from the bond OF a public
that is ALL Neither the Mayor nor the Auditor
is vested with any power to investigate this
question to determine whether the reason
given Is good or not nor is the surety required
to give any particularly good reason, so TO
speak. but 1t may be simply it's whim. a ca
price. desire. perhaps. simply to gratify It's
own desire in the matter It may be that In
the enactment of this statute the Legislature
had it in mind that the surety might withdraw
by reason OF some misconduct on the part oe
the official; II so, the public Is interested in
knowing that fact. and am satisfied that the
isfy the officer. but simply to satisfy the pub
lie as 70 the reason why a surety upon the bond
his bond.
I think. from what I have said. that the
conclusion necessarily follows that the surety
in this case has right 70 withdraw from this
contract. And in addition TO that I doubt
whether 1t is the policy Of the law that public
officers, such as the Mayor and Auditor.
should be involved IN a controversy OF this
nature. The statute is clear and explicit that
surety may on filing such a statement be
relieved from all liability thereafter to arise,
and that in ten days after the service OF such
notice the officer with whom the Is
filed must make order declaring such office
vacant and releasing such sureties from all
liability thereafter TO be incurred
1t seems to TO be in conflict with the
spirit of the law to say that the officers with
whom statement is fled should defer their
declaration until the end OF some litigation
that the officer might commence against the .
surety.
For these reasons I have concluded that the
application for injunction should be denied in
this case and the dernurrsrs sustained. In
this case there is no reason stated by the
surety for withdrawing from this bond affect
ing the integrity Of the officer at all; the sure
ty Is simply exercising its legal right TO with
draw from this bond
MAESTRETTI Is UNCERTAIN.
When asked as TO his intentions.
Maestretti said he would Immediately
endeavor to secure a bond, personal
or corporate, and expressed his belief
that the National Surety Company
would Immediately come 20 his aid As
to what further action he would take.
he said that first he would have TO con-
suit his attorney, r. II. Countryman-
He could not say what his next move
would be.
Mayor Schmitz was not so uncertain
as to his course. His Honor said he
had not as yet been officially notified OF
the cancellation OF Maestrettfs bond.
and his ousting from ONCE by the
Auditor.
IF such a thing has occurred" said
the Mayor, 'I will take it that the COM
missionership is vacant and will ap-
point a new Commissioner, who will
be Frank A. Maestrettt / have re-
ceived no notification from the indem-
nifty company that they have with
drawn from his bond. / have not been
told by the court that the bond has
been cancelled. I have not seen the
opinion OF Judge Seawell. and have no
official knowledge that IL exists
II have simply received unofficial
word of all these transactions and have
not received any new bond from
Maestretti I can only add that think
the Auditor has been hasty In his ac-
tion."
Immediately after the cancellation
OF the Maestretti bond by the Auditor.
which occurred at IL o'clock. Maestrettt
was notified. Up TO 5 o'clock no new
bond had been filed at the office