City of Duluth v. Ross
| Decision Date | 03 May 1918 |
| Docket Number | 20,813 |
| Parties | CITY OF DULUTH v. JOHN G. ROSS AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $2,505 upon the bond of John G. Ross, as clerk of municipal court of plaintiff city. Defendants demurred to the amended complaint. The demurrers were sustained, Fesler, J. From the judgment entered on the motion of defendants, plaintiff appealed. Reversed.
Officer -- liability of clerk of municipal court for theft of deputy.
The clerk of the municipal court of Duluth is responsible for the malfeasance of a deputy clerk in appropriating to his own use moneys coming into his hands in the performance of his official duties, and both the clerk and the surety on his official bond are liable on such bond for the loss. This is so though there is no statute making such clerk responsible for the acts of his deputy.
John E Samuelson, Leonard McHugh and M. T. O'Donnell, for appellant.
G. A E. Finlayson and A. G. McKnight, for respondent Ross.
Washburn, Bailey & Mitchell, for respondent American Fidelity Company.
Action by the city of Duluth to recover on the bond of defendant John G. Ross, as clerk of the municipal court. Each defendant demurred to the amended complaint. Each demurrer was sustained, and judgment in favor of defendants entered. Plaintiff appeals from this judgment.
The question is whether the amended complaint states a cause of action. Its material allegations are as follows:
March 11, 1912, John G. Ross was appointed clerk of the municipal court of Duluth for the term of three years. He executed and delivered to the city his official bond, signed by himself as principal, and defendant American Fidelity Company as surety. This bond, which was duly approved, was conditioned upon the faithful performance by Ross of all the duties of his office. While it was in force, and in May, 1914, Ross appointed Walter John Richeson deputy clerk; he acted as such deputy clerk until May 20, 1915. It was the duty of Ross as clerk, and Richeson as deputy clerk, to receive fines, penalties, costs and fees accruing to the court or any officer thereof, to keep full, accurate and detailed account of the same, and on the third day of each month to deliver over to the city treasurer the moneys so received. Between February 9, 1914, and May 20, 1915, Richeson as deputy clerk received a large amount of money from fines, costs, penalties and fees of various kinds. Of these moneys he wrongfully and unlawfully appropriated to his own use the sum of $2,505.90, and falsified the books and records of the court in such a way that the misappropriation of these funds was not discovered until August, 1915. It is alleged that Ross, as such clerk, failed to keep accurate and detailed accounts of the moneys received by himself as clerk and Richeson as deputy clerk, and failed to turn over to the city treasurer all moneys coming into the hands of Richeson as deputy. It sufficiently appears from the complaint that the moneys appropriated by Richeson never came into the hands of Ross, and that his failure to keep accurate and detailed accounts was due to the falsification of the books by Richeson. In a word there is alleged no breach of the bond by Ross, unless the defalcation of his deputy constitutes such breach.
The question is whether Ross and his surety are liable on the bond for the acts of Richeson as deputy clerk. The municipal court act (Sp. Laws 1891, p. 595, c. 53, amended by Sp. Laws 1901, p. 664, c. 397), provides that the clerk shall execute to the city a penal bond in such sum and with such sureties as the judge of the court shall approve, conditioned that he will pay over to the treasurer of the city on the third day of every month all fines, penalties, fees and other moneys belonging to or to go to said city which may have come into his hands during the month next preceding, and that he will pay over to all other persons on demand all moneys to which they may be entitled which may have come into his hands by virtue of his office, and at the end of his term pay over to the city all moneys to which it is entitled, and to his successor all other moneys then remaining in his hands by virtue of his office.
Section 10 of the act provides that "such clerk shall have power to appoint, subject to the approval of said municipal judge, one (1) or more deputy clerks, with like powers of the clerk, but acting under the direction of said clerk; and said deputies may be removed from office at any time by the clerk."
Section 11 of the act prescribes the duties of the clerk, but it is unnecessary to state its provisions.
Neither in the municipal court act, nor elsewhere in the statutes, is there any provision which makes the clerk responsible for the acts or defaults of a deputy clerk. This is conceded, but the city contends that at common law, in the absence of statute, the clerk is liable for a defalcation by the deputy. This contention is based almost wholly on the case of Board of Co. Commrs. of Ramsey County v. Sullivan, 89 Minn. 68, 93 N.W. 1056. The question in that case was whether the county auditor was responsible for the act of his deputy in issuing fictitious redemption and refundment orders. It was held that he was, and that the county might recover of the surety on the auditor's bond. The language of the opinion does not make it clear whether this holding was based on the statute, or not. The court refers to G.S. 1894, § 708, requiring the auditor to give a bond, and states that the acts of the deputies, within the color of official duties, are the acts of the auditor. The fact that the statute provided for bonds to be executed to the auditor by his deputies is also referred to. The section that authorizes the appointment of deputies, and which provides that the auditor shall require bonds of his deputies, is section 715, not in terms referred to by the court, though it discusses its provisions. In this section is the plain provision that "the county auditors shall be responsible for the acts of their deputies." A reference to the briefs in the Sullivan case discloses that this statute was relied on as the basis for the claim of liability on the part of the auditor and his surety. In view of this fact, the language of the opinion referring to provisions of this very section, and the omission of any discussion of the law in the absence of statute, we think the decision in that case was based upon the statute, though it must be conceded that the language of the opinion leaves this in doubt.
The Sullivan case therefore gives no aid in the decision of the question before us. There is no case in this state that furnishes much help. It is clear enough, in view of the language of the municipal court act, that the deputy clerk was himself a public officer, and not an employee or servant of the clerk. State v. Barrett, 40 Minn. 65, 41 N.W. 459; Sortedahl v. Board of Co. Commrs. of Polk County, 84 Minn. 509, 88 N.W. 21. He was paid by the city, and his appointment had to be approved by the judge. It is specifically provided that he has "the powers of the clerk."
It is also clear that the surety on the clerk's bond is not liable unless the clerk is. There is no language, either in the bond or in the statute providing its conditions, which makes the surety liable for the act of a deputy clerk. It is liable if the principal is, otherwise not.
It has been held in many decisions that a public officer, in the absence of statute, is not responsible for the misfeasance or positive wrongs, or for the nonfeasances or omissions of duty of the persons properly employed by or under him in the discharge of his official duties. Throop, Public Officers § 592, and cases cited. Robertson v. Sichel, 127 U.S. 507, 8 S.Ct. 1286, 32 L.Ed. 203; 29 Cyc. 1445, and cases cited. 23 Am. & Eng. Enc. ...
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