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the office. Section 25 of article 2 of the constitution provides that the compensation of any public officer shall not be increased or diminished during his term of office; and section 8 of article 11 provides that the legislature shall fix the compensation by salary of all county officers except certain officers, which exceptions do not embrace the office in question, and provides again that the salary of any county, city, town, or municipal officer shall not be increased or diminished after his election; and the legislature at its next session after the adoption of the constitution proceeded to carry these provisions of the constitution into effect by fixing the salaries of the county officers, including that of the county attorney.

It would seem that giving a plain interpretation to the language of the constitution, twice expressed, would be conclusive of this proposition; but appellant cites this court to one of its own decisions, viz., State v. Carson, 6 Wash. 250, in support of his contention 233 that the provisions of the constitution above cited do not preclude the legislature from increasing the compensation of public officers, where the performance of extrinsic services is imposed upon such officer. We do not think that the doctrine enunciated in that case should in any event be extended, though it is plainly distinguishable from the case at bar. In that case the court held that a legislative act which provided that the county treasurer should be charged with the duty of assessing and collecting city taxes, and that the city should pay him therefor the sum of five hundred dollars per year, did not violate the constitutional inhibition against increasing the compensation of any public officer during his term of office. It will be seen that the new duty there imposed was absolutely extrinsic, and in no way connected with the performance of his duties as a county officer. The business was for another municipality, and the additional compensation came from the other municipality, and, so far as construing the intention of the legislature is concerned, that body especially provided (Laws 1893, sec. 10, p. 70), in plain terms that the city should pay the treasurer that amount. But the legislature has made no such provisions in relation to the county attorney, either in direct terms or by implication. It is true that the laws of 1891 (Laws 1891, sec. 105, p. 321), provide for the payment of attorney's fees by the delinquent taxpayer, but they do not provide, as in the case of the treasurer above cited, that they shall be paid to the attorney who is authorized to bring the

AM. ST. REP., VOL. XLIIL-53

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action; and we have no doubt that the intention of the legis lature was that such fees were intended to reimburse the county for extra expenses incurred by the county in furnish ing additional assistance to the county attorney in the performance of the additional duties imposed upon him.

But the responsibility of the bondsmen, as we have before intimated, rests upon entirely different grounds. It 234 was the privilege of the attorney, in case he thought the new duties could not be legally imposed upon him, to refuse to perform them, or, if he was not willing to rely upon that position, to resign the office. But the responsibility of the sureties could not be made to depend upon his decision or choice in either of these contingencies. They contracted with the county with reference to the law in force at the time the contract was executed, and the law that was then in force was the law which was incorporated into and became a part of their contract, and not some law which the legislature might pass at some subsequent time which would greatly increase their risk. Of course, sureties on an official bond are presumed to take notice of the fact that changes will be made concerning the duties of their principal, and, where these changes are made in matters of minor importance, which as a whole do not substantially increase their responsibilities, the sureties will not be exonerated. wherever an entirely new and distinct class of duties, not germane to the office, are imposed upon a public officer, the sureties are not bound to answer for the added responsi bilities. The general rule is thus stated by Mechem on Public Officers, sections 305, 306.

But

"The contract entered into by the sureties is ordinarily to be construed by reference to that law, and that only, which was in effect at the time their contract was made, and which they then had in contemplation. . . . . As a rule the sureties upon an official bond can be held liable for the faithful performance of those duties only which adhered or were germane to the office at the time their undertaking was entered into, and not for other and different duties added to the office after the execution of the bond. Where the bond is given to secure the faithful execution of a given office, and, after the execution of the bond, the whole nature of the office is changed, the bond ceases to be obligatory, because the office is no longer the same within the meaning of the bond."

235 In this action it seems to us that the new duties imposed were not in any way germane to the office at the time their undertaking was entered into. At that time the bond which the county attorney was required to furnish was more or less a simply formal requirement; but the legislature afterward imposed upon him duties and responsibilities which before that time had attached to the offices of treasurer and sheriff, viz., to assume the responsibility of collecting and being responsible for large amounts of money. Many persons would be willing to go upon the bond of an attorney who would not be willing to make themselves responsible upon the bond of a treasurer, whose principal duty it is to collect, care for, and account for money. It is well understood that a bond of this nature would carry with it more risk and responsibility than a bond given by an officer for the performance of mere clerical or professional duties, and it is not right to assume that this new and absolutely distinct duty and responsibility which is imposed upon the county attorney and through him upon his sureties should have been taken into consideration or contemplated by the sureties when they executed the bond in question. Certainly, if the office of county treasurer had been abolished by the legislature and all the duties of that officer imposed upon the county attorney, it will not be contended that the sureties on the bond of the attorney, given prior to such change, would be held responsible for any delinquencies of their principal in the performance of the new duties imposed; and, where a portion of those responsibilities which are distinct from the ordinary responsibility of the county attorney are imposed, the principle is the same; the only difference is in degree.

In King County v. Ferry, 5 Wash. 536, 34 Am. St. Rep. 880, this court held that, where the legislature had extended the term of office of an officer beyond the limit fixed by law at the time of his election and qualification, the sureties upon 936 his bond could not be held liable for his official acts during such extended term, for the reason that the sureties had a right to take into consideration the requirements of the law, so far as their principal was concerned, which was in existence at the time that the contract was made; and it seems to us that it would be just as inequitable to hold here that the sureties had in contemplation a requirement imposing an entirely different character of responsibility upon their

principal, which was afterward imposed by the legislature. There, this court said, no doubt the central idea was that the term of office was for two years, and here, no doubt, the central idea was that the sureties were to become responsible for the faithful performance of the duties which were then imposed by law upon the principal, and not for the duties which might afterward be imposed. It is not the fault of the sureties that the legislature did not provide an additional bond to be given by the county attorney as tax col lector when these additional burdens and responsibilities were imposed upon him. This is in harmony with the rule also laid down by 2 Brandt on Suretyship and Guaranty, section 548, that "As a general rule the sureties on an official bond are liable for the faithful performance of all duties imposed upon such officer, whether by laws enacted previous or subsequent to the execution of the bond, which properly belonged to and come within the scope of the particular office. They are not, however, liable for after-imposed duties which cannot be presumed to have entered into the contemplation of the parties at the time the bond was executed."

Assuming the correctness of the law thus announced, it seems to us unreasonable to presume that the sureties could have contemplated the imposing of these absolutely distinct duties upon the prosecuting attorney, which not only did not properly belong to and come within the scope of his office, but which had by the settled policy of the law for many years been invested in other officers.

237 The judgment will be reversed, and the cause remanded with instructions to dismiss the action.

ANDERS, SCOTT, and STILES, JJ., concur.

HOYT, J., dissenting. One of the duties of the prosecuting attorney under the law in force at the time the bond in question was executed was to prosecute suits in favor of the county, and as incident to that power to receive payment before suit, and pay over the moneys so received to the county. This being so, I think that the legislation by which it was made his duty to collect taxes due the county by suit, and, as incident thereto, to receive them for the county before suit, if offered, was germane to his duties under the law at the time the bond was executed. For this reason such legislation did not confer such new duties as would relieve his bondsmen of responsi bility in regard thereto. The judgment should be affirmed.

OFFICERS-INCREASING COMPENSATION.-Where an office is created by the constitution the compensation can neither be increased nor diminished during the term: Douglass County v. Timme, 32 Neb. 272. Where the constitution prohibits the increase of compensation of an officer during his term, the fact that the office was created by statute would make no differ. ence: County of Cook v. Sennott, 136 Ill. 314; but, in the absence of a constitutional prohibition or an affirmative provision fixing the compensation of an officer, the legislature may change such compensation: Douglass County v. Timme, 32 Neb. 273. See, also, the extended note to Hoke v. Henderson, 25 Am. Dec. 703.

OFFICIAL BONDS-INCREASE OF DUTIES, WHETHER DISCHARGES SURETIES.-Sureties upon the bond of a public officer are not discharged by the imposition upon the principals, by the legislature, of further duties and obligations of a nature and character similar to those already taken: People v. Vilas, 36 N. Y. 459; 93 Am. Dec. 520, and extended note. See, also, the extended notes to Pratt v. Wright, 67 Am. Dec. 771, and Commonwealth v. Cole, 46 Am. Deo. 509.

HOWARD V. MONAUGHT.

[9 WASHINGTON, 855.]

JUDGMENT-MERGER.-Judgment foreclosing a mortgage without personal service on the mortgagor does not merge the cause of action if the full amount of the mortgage debt is not realized from the foreclosure sale. The mortgagee may maintain a personal action against the mortgagor to recover the amount yet remaining due. MORTGAGES-FORECLOSURE-RECOVERY OF BALANCE DUE-EVIDENCE-In

an action to recover a balance due on the mortgage debt after foreclo
sure and sale of the mortgaged premises, evidence as to the value of the
land is immaterial and inadmissible in the absence of an allegation of
fraud by reason of which the mortgaged land has been sold for less than
its value.

D. M. Woodbury and Wells & Joiner, for the appellants.
Million & Houser, for the respondent.

recover an

The appel

judg.

355 HOYT, J. This action was brought to amount alleged to be due upon a certain bond. lants claimed there was nothing due thereon, for the reason that the debt evidenced by it had been reduced to 356 ment in the district court of Harper county, Kansas. It appeared that there had been a foreclosure of a real estate mortgage, which had been given to secure the payment of the bond in question, and that certain moneys had been realized upon a sale of the mortgaged property, and applied upon the amount due upon the bond, leaving a balance of seven hundred and fifty-six dollars, for which this action was

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