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FORM OF BOND OF ASSISTANT TREASURER OF UNITED

STATES-RETROACTIVE FEATURE.

A bond voluntarily given by an assistant treasurer of the United States

for the faithful discharge of the duties of his office, under section 3600,

Revised Statutes, may be worded so as to operate retroactively. Whether the new bond is retroactive or not, a full account of the money

on hand should be made in order to fix the liability of the respective bonds in the event of defalcation.

DEPARTMENT OF JUSTICE,

April 7, 1911. Sir: Under date of February 23, 1911, you requested my opinion upon certain questions arising out of the giving of a new bond by the assistant treasurer of the United States at Boston, Mass.

1. Your first question is as follows:

“Assuming that the surety company on the new bond has authority under State laws, and would be willing to assume liability on a bond for the acts of an assistant treasurer committed before such bond was executed, will you please advise me whether the United States would properly be protected under the retroactive clause contained in the present form of bond or any similar clause which might be inserted with the full knowledge and consent of the surety?

The authority for requiring a bond from the assistant treasurer is section 3600 of the Revised Statutes, which reads:

“ SEC. 3600. All assistant treasurers, and all officers in any mint, or assay-office, authorized by law to act as assistant treasurers, shall, respectively, give bonds to the United States for the faithful discharge of the duties of their respective offices as assistant treasurers, according to law, and for such amounts as shall be directed by the Secretary of the Treasury, with sureties to the satisfaction of the Solicitor of the Treasury; and shall, from time to time, renew, strengthen, and increase their official bonds as the Secretary of the Treasury may direct.' The condition of the present form of bond is as follows: Now, therefore, if the said

has truly and faithfully executed and discharged, and shall continue truly

and faithfully to execute and discharge, all the duties of said office of assistant treasurer of the United States at

according to law, and if the persons employed in his office shall perform with fidelity the duties of their respective offices; and moreover, has well, truly, and faithfully kept, and shall well, truly, and faithfully keep safely, without loaning, using, depositing in bank, or exchanging for other funds than as allowed by law, all the public money collected by him, or otherwise at any time placed in his possession and custody, till the same shall be ordered by the proper department or officer of the Government to be transferred or paid out; and when such orders for transfer or payment have been or shall be received, has faithfully and promptly made and shall faithfully and promptly make the same as directed, and has done and shall do and perform all other duties, as fiscal agent of the Government, which have been or may be imposed by any act of Congress, or by any regulation of the Treasury Department made in conformity to law; and also has done and performed, and shall do and perform, all acts and duties required by law, or by direction of any of the executive departments of the Government, as agent for making any disbursements which either of the heads of those departments may be required by law to make and which are of a character to be made by a depositary constituted by law, consistently with the other official duties imposed upon him, then this obligation to be void and of none effect; otherwise, it shall abide and remain in full force and virtue.

In several cases in the lower Federal courts the question you present was considered under statutes phrased as to the condition of the bond similarly to section 3600, and it was held that a bond covering in terms both past and future acts would be enforced only as to the latter, as the retroactive feature was in excess of the condition required by the statute (Armstrong v. United States, Peters, C. C. 46, Fed. Cas. No. 549; United States v. Brown, Gilp. 155, 182, Fed. Cas. No. 14663; United States v. Ellis, 4 Sawy. 590, 592, Fed. Cas. No. 15047; United States v. Jones, 77 Fed. 717.)

In my judgment, however, the decisions of the Supreme Court of the United States lead to a different conclusion. It is true that court has held that no officer of the Government has a right, by color of his office, to require from any subordinate officer, as a condition of holding his office, that he should execute a bond with a condition different from that prescribed by law (United States v. Tingey, 5 Pet. 114, 129); but in the same case and in the same connection it was said that "it would be very different, where such a bond was, by mistake or otherwise, voluntarily substituted by the parties for the statute bond, without any coercion or extortion by color of office.” It was also directly adjudged in that case that “a voluntary bond, taken by authority of the proper officers of the Treasury Department, to whom the disbursement of public moneys is intrusted, to secure the fidelity in official duties of a receiver or an agent for disbursing of public moneys, is a binding contract between him and his sureties, and the United States; although such bond may not be prescribed or required by any positive law” (ib., p. 128). This principle has been repeatedly affirmed (3 Notes, U. S. Repts. 161).

In Jessup v. United States (106 U. S. 147, 152) the court, referring to United States v. Tingey (supra), United States v. Bradley (10 Pet. 343), United States v. Hodson (10 Wall. 395), and United States v. Linn (15 Pet. 290), says (p. 152):

"These authorities show that the United States can, without the authority of any statute, make a valid contract, and that when the form of a contract is prescribed by the statute, a departure from its directions will not render the contract invalid. The bond is good at common law."

It was accordingly held that a bond given to the United States and not to the Treasurer of the United States, as required by the statute, was a valid and binding obligation.

So the court of appeals for the sixth circuit, in an opinion delivered by Justice Lurton, held a contractor's bond, although invalid as a statutory bond, was valid as a

common law obligation. (Stephenson v. Monmouth Min. & Mfg. Co., 84 Fed. 114.)

It is true that in United States v. Bradley (10 Pet. *343, *364) the court said, of the bond there involved, that for any excess beyond the statute it would be void pro tanto. This statement is to be read in connection with the preceding paragraph of the opinion, in which it is said that “doubtless it would be illegal for that department to insist upon a bond containing other provisions and conditions differing from those prescribed or required by law,” the court holding that even in such a case the bond would not be wholly void if taken in the form not prescribed by the act by mutual mistake or accident and wholly without design.

In the present case the form of bond in question does not in my judgment contain provisions or conditions differing from, or in any wise inconsistent with, those prescribed or required by law. Section 3600 of the Revised Statutes provides that the officers referred to shall “give bonds to the United States for the faithful discharge of the duties of their respective offices as assistant treasurers, according to law.” It further provides that they “shall, from time to time, renew, strengthen, and increase their official bonds as the Secretary of the Treasury may direct.”

The manifest purpose and intent of the statute is that the United States shall be fully secured for the faithful discharge by assistant treasurers of their duties, and therefore it is in entire conformity with the purpose of the act to require that a bond given by such an officer shall cover his entire term. It frequently occurs, however, that the public interests require that an oflicer enter upon the discharge of his duties before he is able to give the requisite bonds, or, as the statute contemplates, a new bond may be necessary to increase or strengthen existing bonds. To hold, therefore, that in such a case the bond could not be made to cover his prior service, even if voluntarily given, would be to say that the statute requires the Government to go unprotected to that extent. It seems to me that such a view is contrary to sound principles of public policy,

and is not required by any consideration of justice or protection to the official who gives the bond, which seems to be the basis upon which the inferior Federal courts rested their decisions.

So far from taking the view suggested, the Supreme Court has expressed itself directly to the contrary. (Farrar v. United States, 5 Pet. 373; United States v. Boyd, 15 Pet. 187.) In both those cases the bond referred to was required by statute. In deciding the Boyd case, the court said (15 Pet. 207–208):

"The first question arising on the pleadings is whether the sureties of Boyd are bound for defalcations between the 27th of December, 1836, the date of the appointment, and the 15th day of June, 1837, the date of the bond. The condition of the bond is prospective, and in its last clause does not differ in effect from that passed on in the case of Farrar v. United States (5 Pet. 374, 389). In that case, William Rector had been appointed surveyor of public lands, and given bond with sureties, conditioned, “if the said William Rector shall faithfully execute and discharge the duties of his office, then said bond to be void,' etc. Rector had been appointed and commissioned as surveyor, on the 20th February, 1823. The bond bore date the 7th day of August, 1823. The prominent question presented on the trial was, whether the sureties of Rector were liable for moneys received by him as surveyor, and appropriated to his own use, after his appointment, and before the execution of the bond; on which the court held, that the sureties could only be made answerable for moneys in Rector's hands at the date of the bond, which were held by him in his official capacity, in trust for the Government, and not for moneys previously ap

appropriated to his own use. Say the court, “if intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct.”

“It is insisted on behalf of the United States, that aside from the foregoing considerations, the sureties are bound equally with the principal in the bond, on the ground, that the condition, on settled legal principles, and by implica

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