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duties of his office, and which are not incompatible with, and are not included within his official duties. State, ex rel. Board of County Commissioners, v. Holm, 70 Neb. 606 (97 N. W. 821; 64 L. R. A. 131).

Authority and powers.

Authority of clerk to take acknowledgment, see Acknowledgment, § 14.

237. public

(1877.) Where power is given to officers in the permissive form, "may," if the public interests of individual rights call for its exercise, it is peremptory. State, ex rel. Clark, v. Buffalo County, 6 Neb. 454.

238. (1897.) Sections 40 and 41, chapter 8, Compiled Statutes (laws 1879, ch. 156, secs. 1, 2), providing that the successors of public officers who have made deposits or loans of public moneys may maintain actions to recover the same, operates prospectively as well as retrospectively. McIntosh

v. Johnson, 51 Neb. 33 (70 N. W. 522).

239. (1898.) A public corporation is bound by the acts and contracts of its authorized agents within the scope of their authority. Dean v. Saunders County, 55 Neb. 759 (76 N. W. 450).

240. (1907.) County officers have by implication such powers as are necessary to enable them to perform the duties expressly enjoined upon them. Christner v. Hayes County, 79 Neb. 157 (112 N. W. 347).

Ratification.

241. (1895.) There is no authority for submission to electors of a county of a proposition to ratify the unauthorized acts of its officers. Douglas County v. Keller, 43 Neb. 635 (62 N. W. 60).

Duties and liabilities.

242. (1888.) A county treasurer is not liable for the penalty provided by section 12 of chapter 93, Compiled Statutes of 1885, for the failure to register a county warrant presented to him for such registration, prior to the expiration of ten days after it is issued, that time being given in which an appeal may be taken by a taxpayer, and within which the county clerk is prohibited from delivering the warrant. Means บ. Webster, 23 Neb. 432 (36 N. W. 809).

243. (1902.) The duty imposed upon the county clerk by section 85, article I, chapter 77, Compiled Statutes, of apportioning railroad property among the several school districts for purposes of taxation is one owing

to the public only; hence a county clerk is not personally liable to a school district for an honest mistake in the apportionment. School District v. Burress, 2 Unof. 554 (89 N. W. 609).

244. (1902.) The duty imposed upon the county clerk by section 77, article I, chapter 77, Compiled Statutes, is one owing to the public only; hence a county clerk who by mistake omits to levy the tax reported in accordance with said section is not personally liable to the school district. School District v. Burress, 2 Unof. 554 89 N. W. 609).

245. (1904.) Chapter 32, laws of 1903, entitled "An act to constitute the county surveyor ex-officio county engineer in addition to his powers and duties of the county surveyor," etc., is in violation of section 15, article III of the constitution, which prohibits the passage of local or special laws regulating county or township offices, and further provides that, in all cases where a general law can be made applicable, no special law shall be enacted, and is void. State v. Scott, 70 Neb. 685 (100 N. W. 812).

246. (1904.) An information in the nature of quo warranto will not lie to inquire into the right of county surveyors, in counties having more than 50,000 population, to perform and exercise the duties of county engineer, as provided for by chapter 32 of the laws of 1903. State v. Scott, 70 Neb. 681 (97 N. W. 1021).

247. (1904.) Under Compiled Statutes, chapter 18, article III, sections 18 and 20, and chapter 83, article XIII, section 3a, as amended by the act of 1891, it is the duty of each county treasurer to keep at all times on deposit in each of the depository banks of his county such a proportionate share of the public money subject to deposit as the amount of the paid up capital stock of each bank bears to the whole amount of paid up capital stock of all of such banks. State, ex rel. First Nat. Bank of Atkinson, v. Cronin, 72 Neb. 636 (101 N. W. 325).

Custody of public funds.

248. (1893.) Chapter 50, laws 1891, relating to the keeping of state and county funds, did not operate to repeal article II, chapter 18, Compiled Statutes, relating to the removal of county officers. Hopkins v. Scott, 38 Neb. 661 (57 N. W. 391).

249. (1897.) The statutes in force in 1888 and 1889 made it the duty of the

county treasurers of counties having 25,000 inhabitants or less, to collect and remit to the state treasurer moneys owing to the state arising from the leasing and sale of the educational lands of the state situate in such counties. Bedwell v. Custer County, 51 Neb. 387 (70 N. W. 945).

250. (1907.) In the absence of bad faith, a county treasurer is not liable for depositing county funds in a legal depository in excess of the depository bank's pro rata share of such funds, as provided by section 18, ch. 18, art. III, Comp. St. 1905, unless the amount of such deposit exceeds the sum which might lawfully be deposited under the provisions of section 20 of the same chapter. Holt County v. Cronin, 79 Neb. 424 (112 N. W. 561).

Accounting for public funds and property.

251. (1880.) The fact that the public funds have been stolen from the treasury is no legal justification for the failure of the treasurer to account for them. State, ex rel. Craig, v. Sheldon, 10 Neb. 452 (6 N. W. 757).

252. (1883.) The payment of money in the hands of a county treasurer, at the termination of his office, to his successor, can be effectuated only by the delivery of that which by the law of the land is recognized as money. Cedar County v. Jenai, 14 Neb. 254 (15 N. W. 369).

253. (1883.) The mere delivery of certificates of deposit of a banker-no money having been realized from them, even if assented to by the successor, is not a payment; nor will it relieve the outgoing treasurer and his sureties from liability on his official bond, for failing to pay over money found to be due from him to the county on final settlement. Cedar County v. Jenal, 14

Neb. 254 (15 N. W. 369).

254. (1892.) A proceeding by mandamus to compel a county treasurer to pay over county funds in his hands at the expiration of his term of office is barred by the statute of limitations at the expiration of four years from the time the right to the writ accrued. State, ex rel. Gage County, v. King, 34 Neb. 196 (51 N. W. 754; 33 Am. St. Rep. 635).

255. (1896.) Negligence or carelessness, of the county board in the examination and settlement of the accounts or report of the county treasurer is not a defense available to the sureties of the treasurer in a suit to

recover funds which he failed to turn over. Bush v. Johnson County, 48 Neb. 1 (66) N W. 1023; 58 Am. St. Rep. 741; 32 L. R. A. 223).

256. (1896.) The periodical settlements assigned by our statutes to be made between the county board and the treasurer of the county do not have in them the elements of a judicial determination of the subjects involved. Bush v. Johnson County, 48 Neb. 1 (66 N. W. 1023; 58 Am. St. Rep. 741; 32 L. R. A. 223).

257. (1896.) An incoming county treas urer, receives from the outgoing one, a certificate of deposit representing the county funds in his hands, and delivered the same to the bank which had issued it, and it was canceled and a new one issued to him in its stead. Held, That he and his bondsmen were chargeable with the amount thereof, and a subsequent failure of the bank during the time the deposit was continued, and his consequent inability to realize the money, did not relieve them of the liability. Bush v. Johnson County, 48 Neb. 1 (66 N. W. 1023; 58 Am. St. Rep. 741; 32 L. R. A. 223).

258. (1896.) The duty imposed on a county treasurer by law, and assumed by him, of safely keeping, accounting for and turning over the public funds which come into his hands by virtue of his office, is an absolute one; and where his bond is conditioned for the faithful performance of the duties of the office by him, the sureties on the bond are bound and liable in like manner and their responsibility is the same as that of their principal, and it will be no defense for either of the parties, in an að tion on the bond to recover public funds. predicated on an alleged failure of the treasurer to account for or pay them over. that the funds have been lost or stolen without the fault or negligence of the treasurer. Bush v. Johnson County, 48 Neb. 1 (66 N. W. 1023; 58 Am. St. Rep. 741; 32 L. R. A. 223).

259. (1896.) A county treasurer, during his first term, had on deposit in a bank $6,000 of the public funds, such deposit being evidenced by a certificate of deposit. At the close of this term of office and the beginning of the second term, in his report to and settlement with the county board, he included and stated the amount of the cer tificate of deposit as so much cash, the board possessing no knowledge of the existence of the certificate, or of the deposit of the

money. Before the close of the treasurer's first term, the bank failed. Held, That such settlement did not bind the county as an acceptance or approval of the certificate of deposit as so much cash accounted for, nor did its retention by the treasurer, or turning it over to himself as his own successor, constitute a paying over of the public funds, but was a failure to do so which rendered him, and the obligors on his bond for his first term, liable. Bush v. Johnson County, 48 Neb. 1 (66 N. W. 1023; 58 Am. St. Rep. 741; 32 L. R. A. 223).

260. (1897.) An incoming county treasurer accepting a bank check in payment of public funds due from his predecessor is chargeable with the amount of such payment, where the check is surrendered by the incoming officer to the bank which issued it, the amount deposited therein in open account under the depository law, other deposits of county funds are likewise made therein from time to time, checks against the account drawn by the treasurer aggregating a sum in excess of said first deposit are honored and paid by the depository bank, and said acts have been ratified by the county. Whitney v. State, 53 Neb. 287 (73 N. W. 696).

261. (1901.) Where a full and complete settlement of a county officer with the county commissioners, who are authorized to make the same, has been made, such settlement is final and conclusive unless there is fraud, mistake or imposition in making the same. Douglas County v. Bennett, 61 Neb. 660 (85 N. W. 833). [Overruled. Mitchell v. Clay County, 69 Neb. 794.]

262. (1902.) In this state a county treasurer is an insurer of the funds which come into his hands ex officio, and such treasurer and his bondsmen cannot, in an action by the county to recover funds not accounted for, plead that such funds were lost without any fault or neglect on the part of the treasurer, by the failure of a bank in which they were deposited for safe keeping only, and in good faith, believing such bank to be solvent. Thomssen v. Hall County, 63 Neb. 777 (89 N. W. 389; 57 L. R. A. 303).

263. (1902.) A county treasurer is not excused from liability for loss of county funds, deposited in a bank that afterwards fails, on the ground that the supervisors fail to provide a safe place for the keeping of such funds in his office. Thomssen v. Hall County, 63 Neb. 777 (89 N. W. 389; 57 L. R. A. 303).

264. (1903.) Where a full and complete settlement of a county officer with the county commissioners, who are authorized to make the same, has been made, such settlement is final and conclusive, unless there is fraud, mistake or imposition in making the same. Wilcox v. Perkins County, 70 Neb. 139 (97 N. W. 236; 113 Am. St. Rep. 779).

265. (1907.) Where the refusal of county commissioners to settle with a county treasurer is based on his failure to account for interest due on taxes collected by him, such commissioners should call the treasurer's attention to the same, or pay the cost cf legal proceedings brought to compel an approval of his bond, if such objection is not disclosed before an action brought to require acceptance and approval of his official bond for a second term of office. State, ex rel. Clark, v. Vinnedge, 79 Neb. 270 (112 N. W. 858).

266. (1907.) Where irregularities occur, in the disbursement of county funds by a county treasurer, on the advice of the county attorney, it is not a valid objection to the approval of the settlement of such treasurer's accounts or to the approval of his bond for a second term of office. State, ex rel. Clark, v. Vinnedge, 79 Neb. 270 (112 N. W. 858).

Employment of person to examine accounts.

267. (1882.) County commissioners have authority under section 160 of the revenue law of 1879 to employ a competent person at a reasonable compensation to examine the accounts of the county treasurer when in their opinion it is necessary to do so. And where such appointment has been made, and the services rendered, necessity for the appointment will be presumed. Laws v. Harlan County, 12 Neb. 637 (12 N. W. 114).

268. (1884.) County commissioners have authority under section 160, chapter 77 of the Compiled Statutes, to employ competent persons to examine the accounts of the county treasurer, when in their opinion it is necessary to do so. And they are the sole judges as to when the necessity exists. Kearney County v. Tuttle, 16 Neb. 34 (19 N. W. 637).

Liabilities on bonds.

269. (1897.) The official bond of a county treasurer with the oath indorsed thereon was filed within the statutory limit for such act. It had not then been approved, and was not approved until a date beyond the

limit prescribed. He entered upon the duties of the office and during the time he continued therein, received the fees and emoluments appertaining thereto. In an action on the bond for an alleged breach of its conditions, held, that the fact of the lack of approval at the time prescribed by law was not matter of forceful defense for the sureties on the bond. Holt County v. Scott, 53 Neb. 176 (73 N. W. 681).

270. (1897.) A person who was holding the office of county treasurer, and was reelected, filed a bond with the oath of office indorsed thereon within the time fixed by law. The bond then, however, lacked approval, and was not approved until a date without the time fixed by law for such action. The treasurer continued in the office. Held, That he was in the office as of the new term under color of right, and was an officer de facto, and the sureties on the bond were precluded or estopped from denying that he was in possession of the office of the second term and de jure. Holt County v. Scott, 53 Neb. 176 (73 N. W. 681).

271. The failure of a county judge to pay to his successor in office or the person entitled thereto money which was deposited with him in condemnation proceedings constitutes a breach of the obligation of his official bond, and there accrues a cause of action in favor of the person damaged by said breach. (1898) Chicago, B. & Q. R. Co. v. Philpott, 56 Neb. 212 (76 N. W. 550); (1899) Clark v. Douglas, 58 Neb. 571 (79 N. W. 158).

Validity of bond.

272. (1896.) A county treasurer's bond should be approved by the county board. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

273. (1896.) Consideration held sufficient for an additional official bond of county treasurer which was executed, delivered, and approved during the principal's term of office. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

274. (1896.) The approval of the official bonds of county, precinct, and township officers, is the act of the county board as a body, and not the act of an individual member or members. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

having no notice of the condition and there being nothing to raise the duty of inquiry as to the manner of executing the bond. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

276. (1896.) The knowledge of one member of a county board, at the time of its approval by them, of the conditional signing of a county treasurer's bond by the sureties, not shown to have been imparted to the board, is not knowledge of or notice to the board of such fact. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

277. (1896.) Parties who signed a county treasurer's bond subsequent to its approval, as additional sureties must be presumed to have known what would be the effect of such signing, including the discharge of the prior sureties, and they became bound and liable for any subsequent failure or default of the principal in the bond to per form its obligations. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

278. (1898.) The official bond of a county officer is not void because it does not specify or designate the term for which the principal obligee was elected or ap pointed. Perkins County v. Miller, 55 Neb 141 (75 N. W. 577).

279. (1898.) The official bond of county clerk is not void by reason of its being, in form, joint, instead of joint and several as required by statute, nor because it fails to designate the term for which he was elected. Perkins County v. Miller, 55 Neb. 141 (75 N. W. 577).

280. (1899.) If the bond of a county officer is given and approved, the office obtained and enjoyment of the fees and emoluments, in an action on the bond for damages for a breach of the obligation it will not, in favor of the signers of it, be adjudged void because joint alone, but will be held good to the extent it in form com plies with the statutory requirements in such regard. Clark v. Douglas, 58 Neb. 571 (79 N. W. 158).

281. (1903.) The fact that an official bond of a county officer as executed, is joint, instead of joint and several as required by statute, is not an objection thereto of which the obligors upon the instrument can avail themselves as a defense. The bond is good to the extent it complies with the staute in that regard. Wilcox v. Perkins County, 70 Neb. 139 (97 N. W. 236; 113 Am. St. Rep.

275. (1896.) An official bond which has been presented to a county board and approved, binds the sureties though they signed the bond conditionally, the board 779).

Indemnification of sureties.

282. (1902.) Although a county may not demand of a county treasurer to indemnify e sureties on his official bond, a mortgage given by him to indemnify his sureties is not illegal or void because at the time it was given the grantor was suspected of embezzling public funds, and the mortgage was given to protect the sureties in case a de falcation should ensue. Harlan County v. Whitney, 65 Neb. 105 (90 N. W. 993, 101 Am. St. Rep. 610).

283.

Discharge of sureties.

(1896.) Additional sureties, by signing a county treasurer's bond after its approval without the knowledge and consent of the original sureties, release the latter from future liability on the bond and become liable thereon for any subsequent default of the principal. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

284. (1897.) Sureties executed a county treasurer's bond with the provision of section 21, chapter 10, Compiled Statutes, in contemplation and forming a part of their contract, and they are not released from liability on the bond by the board's requiring additional sureties. Holt County v. Scott, 53 Neb. 176 (73 N. W. 681).

Action on bond.

285. (1888.) Where a county treasurer is in default in respect to the county, state, school district, precinct bond, city, and other funds, and his bond has been canceled and bondsmen discharged by a judgment of the district court of the proper county, an action will lie against him in the name of the proper county for all such funds in respect to which he is a defaulter. In such case the county proceeds under a form analogous to that of a trustee of an express trust, in respect to all of such funds other than those of the county proper. Thorne v. Adams County, 22 Neb. 825 (36 N. W. 515).

286. (1891.) Prior to the act of 1891, p. 347, a civil action by the county would not lie to recover back profits made by its treasurer in dealing with the public funds; the only remedy was a prosecution under sec. 124 of the criminal code. Wayne County v. Bressler, 32 Neb. 818 (49 N. W. 782).

287. (1901.) Where through mistake a county clerk is allowed to retain fees in excess of his salary, the adjustment of the account between him and the county is not a bar to an action by it to recover the ex

cess. Sheibley v. Dixon County, 61 Neb. 409 (85 N. W. 399).

Accrual of cause of action.

288. (1896.) A county treasurer, at the close of his term of office, must pay over to his successor all moneys in his hands belonging to the county, or for which he is liable to account. If there has been no proof of any particular date at which it is claimed that the money was misappropriated by a county treasurer, or other proof than that he failed to account for and pay over to his successor at the close of the term of office all funds for which he was liable to account, it will be presumed to have occurred at the close of the term and the liability accrues as of such time. Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

289. (1902.) An action brought against a county treasurer and his bondsmen for the recovery of moneys alleged to have been converted by such treasurer, is not prematurely brought if commenced after the termination of the term of office of such treasurer, and after he has given a bond and his qualified as own successor in office. Thomssen v. Hall County, 63 Neb. 777 (89 N. W. 389; 57 L. R. A. 303).

Defenses.

290. (1898.) That plaintiffs were not the owners of the claim on which the action was predicated and were not the real parties in interest were proper matters of defense in an action by one holding tax certificates to recover against sureties of a county treasurer for the latter's failure to turn over redemption money in his bonds. Levy v. Cunningham, 56 Neb. 348 (76 N. W. 882).

- Limitation of action.

291. (1887.) The statute of limitations commences to run against an action on the bond of a county treasurer, by the purchaser of land at an illegal tax sale, from the date of such sale. Merriam v. Miller, 22 Neb. 218 (34 N. W. 625).

292. (1887.) An action on the official bond of a county treasurer for selling to the plaintiff certain lands for delinquent taxes, which sale is alleged to be void for the want of legal proceedings by the said county treasurer and other taxing officers, as to the time within which the same may be commenced, comes within the provisions of section 14 of the code of civil procedure, and may be commenced at any time within ten years from the time the cause of action

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