Opinion
No. 38298.
March 25, 1943.
BONDS: Counties: Courts: Bond to Indemnify Sureties of County Collector: County Not Liable for Premium. The county collector obtained a surety company bond to indemnify the individual sureties on his official bond. The county was not liable for the premium on the surety company bond since it did not protect the county, and was not approved by the county court. A verbal understanding would not suffice, as county courts can speak only through their records.
Appeal from Saline Circuit Court. — Hon. Robert D. Johnson, Judge.
AFFIRMED.
James Bacon for appellant.
(1) A county being the recipient of the benefits of a county collector's bond is liable for payment of premium. Secs. 11056, 11106, R.S. 1939; County of Boone v. Todd, 3 Mo. 80; St. Louis County Court v. Ruland, 5 Mo. 269; Gammon v. Lafayette County, 79 Mo. 223; Ewing v. Vernon County, 116 S.W. 518, 216 Mo. 681; Smalley v. Dent County, 177 S.W. 623; Motley v. Callaway County, 149 S.W.2d 875, 347 Mo. 1018. (2) To require a county collector to pay premiums for his bond would reduce his compensation for services below that specifically guaranteed him by statute. Sec. 11106, R.S. 1939; County of Boone v. Todd, 3 Mo. 80; Motley v. Callaway County, 149 S.W.2d 875, 347 Mo. 1018; 22 R.C.L. 497; Authorities under Point (1). (2) The use of public funds to pay bond premiums is analogous to the use of said funds in furnishing office space, supplies, telephones, etc. Motley v. Callaway County, 149 S.W.2d 875, 347 Mo. 1018. (3) A collector who advances money in payment of bond premiums is entitled to have reimbursement from the county. 46 C.J. 1018; Authorities under Point (1). (4) A collector may have reimbursed for money advanced in payment of a bond given to indemnify individual sureties where such bond is given with the consent and approval of the county court. Sec. 3238, R.S. 1939; Motley v. Callaway County, 149 S.W.2d 875, 347 Mo. 1018.
Marion Robertson for respondent.
(1) An official bond is incidental to the office of collector of revenue: 46 C.J. 961, sec. 88; Secs. 11056, 11058, R.S. 1939; State to the use of Buchanan County v. Smith, 26 Mo. 226; Holt v. Rea, 330 Mo. 1237. (2) The bond premiums for which this suit was brought were for a reindemnifying bond for $50,000 that the plaintiff gave his personal sureties; and the premiums were not for a bond as required by statute to protect Saline County or on any surety bond that the county approved, consented to or agreed to pay, and payment of these premiums would be without statutory authority, if paid by the county. Compensation of a public office is a matter of statutes and not of contract; it does not depend upon the amount or value of the services performed, but is incidental to the office: Sec. 11056, R.S. 1939; State ex rel. Evans v. Gordon, 245 Mo. 12; Andrew County v. Maxwell, 146 S.W.2d 621; Jackson County v. Stone, 168 Mo. 581; State v. Brown, 146 Mo. 406; Bank v. Refrigerating Co., 236 Mo. 414. (3) Plaintiff is only entitled to compensation provided by statute. The official bond is incidental to his office; and he cannot take office until he makes an official bond. There is no duty on the county's part to furnish a surety bond, but the plaintiff must perform his duties regardless of what the remuneration is: Secs. 11056, 11106, R.S. 1939; Holt v. Rea, 330 Mo. 1237; State ex rel. v. McCracken, 60 Mo. App. 657; State ex inf. v. Herring, 208 Mo. 708. (4) Statutes must be strictly construed as against the officer and an implication must be fair and clear; and plaintiff is not entitled to any additional compensation of payments on any surety bond unless specifically provided by statute. State ex rel. v. McCracken, 60 Mo. App. 657; Shed v. Railroad Co., 67 Mo. 687; Gammon v. Lafayette County, 76 Mo. 675; William v. Sheridan County, 85 Mo. 645; Ford v. Railroad, 29 Mo. App. 616; State ex rel. v. Brown, 146 Mo. l.c. 406; Jackson County v. Stone, 168 Mo. l.c. 581; State ex rel. Evans v. Gordon, 245 Mo. 27. (5) The plaintiff because he paid premiums on the reindemnifying bond (the surety bond to his personal sureties) to protect his personal sureties, is not entitled to reimbursement for the premiums because plaintiff was only required to furnish a personal bond and the County Court of Saline County did not consent, approve or agree to pay the premiums on the reindemnifying bond. Sec. 11056, R.S. 1939; Holt v. Rea, 330 Mo. 1237; State ex rel. Evans v. Gordon, 245 Mo. 12; State ex rel. v. McCracken, 60 Mo. App. 657; Motley v. Callaway County, 149 S.W.2d 75. (6) Any agreement that the plaintiff had with the County Court of Saline County must have been made a part of the record of that court; and it cannot be established by parol evidence, as verbal understandings with the county judges are not valid and binding. Sanderson v. Pike County, 195 Mo. 604; Maupin v. Franklin County, 67 Mo. 327; Thompson v. City of Malden, 118 S.W.2d 1059. (7) The powers of county courts are defined and limited by statute. Section 3238, R.S. Mo. 1939, does not make it mandatory on the County or give it authority to pay premiums on the reindemnifying bond. It merely gives the county court the right to approve and consent to the surety bond in advance; if the collector elects to furnish a surety bond; and the paying for the surety bond is discretionary within the county court. State ex rel. v. Corneli, 152 S.W.2d 83; Motley v. Callaway County, 149 S.W.2d 875; Morris v. Karr, 114 S.W.2d 962.
Appellant, Boatright, sued respondent, Saline County, Missouri, to recover $3200.00 alleged to have been paid by him to the Aetna Insurance Company as premiums on a surety bond while he was county collector, from March 1, 1939, to March 1, 1943. The trial court sustained a demurrer to plaintiff's petition and from the judgment entered Boatright appealed.
The suit was based upon the provisions of section 3238, Mo. Rev. St. Ann. (1939), which insofar as applicable to counties reads:
"Whenever any officer . . . of any county of this state . . . shall be required by law of this state . . . to enter into any official bond, or other bond, he may elect, with the consent and approval of the governing body of such . . . county . . . to enter into a surety bond, or bonds, with a surety company . . . authorized to do business in the state of Missouri and the cost of every surety bond shall be paid by the public body protected thereby."
The petition recited that Boatright had an understanding with the county court that he was to give a surety bond and the county would pay the premium; that after he had applied for such a bond a surety company, upon investigation, learned that the county court had not complied with the law in that it failed to designate depositories of the county funds, and therefore the surety company refused to enter into any bond. The petition then alleged that with the knowledge and consent of the county court Boatright obtained a bond signed by his friends, in other words a personal bond in the sum required, that is $236,000; that he was unable to obtain signers to this bond unless he gave the sureties thereon a reindemnifying bond in the sum of $50,000; that he obtained such a bond from the Aetna Insurance Company and the premium thereon amounted to $800.00 per year; that the county court knowing all the foregoing facts made the following order:
"`Saline County Court, May adjourned term, May 15, 1939. $236,000 having examined and approved is in due form and complies with the laws and statutes applicable thereto, and said bond is hereby approved.'"
It will be noted that no mention was made in this order of any surety bond. The order is merely an approval of the personal bond given by Boatright. Respondent's demurrer stated that plaintiff's petition did not state facts sufficient to constitute a cause of action; also that the surety bond upon which the petition was based was a reindemnifying bond for the protection of plaintiff's personal sureties and not the defendant county.
If the statute relied upon did not expressly so state we think it could be justly implied that to render a county liable for a premium on a bond, as the statute contemplates, the bond must be executed for the benefit of the county. However, we need not indulge in any such implication in this case for the statute so provides. Note the concluding portion thereof:
". . . and the cost of every such surety bond shall be paid by the public body protected thereby."
The county of Saline was not protected by this bond and therefore it was not one as contemplated by the statute. The statute also provides that the officer, in this case the county collector, may elect, with the consent and approval of a governing body of such county, to enter into a surety bond and the costs shall be paid by the county. It is apparent that the legislature intended the county to be liable only in case the county court consented thereto and approved the giving of such a bond. County courts are courts of record and can speak only by and through the record. Dennison v. St. Louis County, 33 Mo. 168; Decker v. Diemer, 229 Mo. 296, 129 S.W. 936, l.c. 943; 20 C.J.S. 866; Thompson v. City of Malden, 118 S.W.2d 1059, l.c. 1064 (8, 9). In the latter case the court of appeals said:
"A County Court may speak only through its records, and ex officio, verbal understandings with county judges are not valid and binding."
The consent and approval of the county court must be made a matter of record. A county cannot be made liable for sums, as in this case $3200, merely upon the oral expressions of the members of the court. It will be noted that in Motley [373] v. Callaway County, 347 Mo. 1018, 149 S.W.2d 875, the county court, by an order of record, approved a surety bond given by the collector and agreed to pay the premium. It will also be noted that the bond in that case was given for the protection of the county.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.