Hawkins v. Thomas

• Decision Date: 10 November 1891
• Docket Number: 258
• Parties: HAWKINS ET AL. v. THOMAS
• Court: Indiana Appellate Court

29 N.E. 157

3 Ind.App. 399

HAWKINS ET AL. v. THOMAS

No. 258

Court of Appeals of Indiana

November 10, 1891

Petition for a rehearing overruled Jan. 9, 1892.

From the Marion Superior Court.

Judgment reversed.

S Claypool and W. A. Ketcham, for appellants.

J. B McFadden and H. Dailey, for appellee.

OPINION

CRUMPACKER, J.

James C. Thomas sued Edward Hawkins upon his official bond as United States marshal for the district of Indiana, and Alford Isaacs, individually, to recover damages for the alleged unlawful arrest and imprisonment of the plaintiff.

There are two paragraphs of complaint, the first of which charges generally that Hawkins was duly appointed United States marshal for the district of Indiana, and gave his bond conditioned for the faithful discharge of the duties of said office, in the sum of twenty thousand dollars, with his co-defendants, John H. Organ, Henry E. Wadsworth, Leroy D. Webber, Ellis Michael, Simon Wile, Fitch D. Bowen, Mortimer Nye and William A. Martin as sureties thereon, a copy of which was filed with and made part of the complaint.

It is further alleged that said Hawkins "procured and directed" the defendant Alford Isaacs to act for him as such marshal on the 6th day of November, 1888, at the city of Shelbyville, Indiana, and while so acting as a deputy United States marshal, by virtue of the authority given him by the said Hawkins said Isaacs, "with force and arms unlawfully assaulted the plaintiff, and with great force and violence pulled and dragged him from the court-house yard in said city, where a large number of persons were then congregated, and from thence the plaintiff was forcibly taken by the said Isaacs, without authority of law, on and along the public streets of said city," for the distance of half a mile, to the office of a United States commissioner, at which place the said Isaacs, "under color of his said authority from the said Hawkins," unlawfully imprisoned the plaintiff for one hour; and thence said Isaacs, under said appointment and by direction of said Hawkins, compelled plaintiff to go in his custody to the jail of Shelby county, where he was unlawfully incarcerated and restrained of his liberty for four hours. Whereby he was damaged, etc.

The second paragraph of complaint is substantially the same as the first, except it charges that the trespass was committed by Hawkins "with the aid and assistance of the defendant Isaacs."

Each defendant severally demurred to the complaint for want of sufficient facts to state a cause of action. The demurrers were overruled and exceptions entered, whereupon the defendants filed an answer consisting of three paragraphs. A demurrer was sustained to the third paragraph, and plaintiff replied to the others, and the issues thus joined were tried by a jury.

A verdict was returned in favor of the plaintiff. The defendants moved for a new trial, which was denied, and judgment was rendered upon the verdict.

The first question for consideration arises upon the demurrer to the complaint, and in the determination of this question it must be kept in mind that the action is upon the official bond of the marshal, and is ex contractu in form. Moore v. State, ex rel., 114 Ind. 414, 16 N.E. 836; State, ex rel., v. Dixon, 80 Ind. 150.

This being the character of the action, it was incumbent upon the appellee to allege and prove a breach of some duty imposed by the terms of the bond. While an officer may be individually liable for any and all wrongs committed by him, yet when he is sued officially upon the bond he gave for the performance of his official duty, that instrument must clearly furnish the measure of his liability, and in such an action his liability is identically the same as that of his sureties. Bowers v. Fleming, 67 Ind. 541; State v. Givan, 45 Ind. 267.

These observations lead to the conclusion at the outset that the complaint states no cause of action against the appellant Isaacs. He did not sign the bond, and is not answerable for its breach.

There is a lack of uniformity in the decisions of the courts of last resort in this country respecting the extent to which sureties are held accountable upon an official bond for the principal's wrongs. They are in harmony, however, upon the general proposition, that such liability must be strictly construed in favor of the surety. This is upon the theory that the surety assumes responsibility from motives of friendship or patriotism, and without compensation; so his obligation is strictly a legal one, and should not be extended beyond the exact terms of his engagement. Thus in the case of Detroit Savings Bank v. Ziegler, 49 Mich. 157, 13 N.W. 496, the court, by COOLEY, J. , said: "The sureties upon an official bond undertake for nothing which is not within the letter of their contract. The obligation is strictissimi juris; and nothing is to be taken by construction against the obligors. They have consented to be bound to a certain extent only, and their liability must be found within the terms of that consent." See further upon this subject; Miller v. Stewart, 9 Wheat. 680, 6 L.Ed. 189; Leggett v. Humphreys, 21 How. 66, 16 L.Ed. 50; Urmston v. State, 73 Ind. 175.

This doctrine should be given a reasonable application, and should not be extended so far as to materially impair official security, or to encourage irresponsible conduct upon the part of public functionaries.

United States marshals are ministerial officers, and their duties and liabilities are substantially the same as those of sheriffs and constables in their respective spheres. Section 783, Revised Statutes U. S.; Servis v. Marsh, 38 F. 794; Hagood v. Blythe, 37 F. 249.

The courts are quite generally in accord in this country and England upon the proposition that the engagement of a surety upon an official bond extends only to official acts--acts done by virtue of the trust reposed in the officer by law. Considerable confusion seems to exist among the adjudications relative to acts designated virtute officii and those classed as colore officii, some holding that the liability of the surety is limited to the former, and others holding that it extends to both classes. But an examination of the leading cases upon the subject will reveal that the conflict exists rather in the application and use of the terms than the principles enunciated.

The case of Alcock v. Andrews, 2 Esp. 542, was an action against a constable for false imprisonment. The defendant pleaded justification under a statute protecting constables while in the performance of official duty. In passing upon the question as to what constituted an official act. LORD KENYON said: "It had been often held that a constable acting colore officii was not protected by the statute, where the act committed is of such a nature that the office gives him no authority to do it. In the doing of that act he is not to be considered as an officer; but where a man, doing an act within the limits of his official authority, exercises that authority improperly, or abuses the discretion placed in him, to such cases the statute extends. The distinction is between the extent and the abuse of the authority."

In State v. Conover, 38 N.J.L. 230, relative to official bonds, the court said: "The sureties do not bind themselves to protect the public against every act of their principal, nor do they become his sureties to keep the peace."

That a surety upon an official bond is only answerable for the acts of his principal while engaged in the performance of some duty imposed upon him by law is generally admitted. Waymire v. State, ex rel., 80 Ind. 67; Bowers v. Fleming, supra; Governor v. Perrine, 23 Ala. 807; Commonwealth v. Swope, 45 Pa. 535; Griffith v. Commonwealth, 10 Bush 281; Dorr v. Mickley, 16 Minn. 20; Huffman v. Koppelkom, 8 Neb. 344, 1 N.W. 243; State v. Mann, 21 Wis. 684; Turner v. Collier, 4 Heisk. 89; Thomas v. Browder, 33 Tex. 783; Boston v. Moore, 3 Allen 126; Schloss v. White, 16 Cal. 65; Brown v. Mosely, 11 Sm. & M. 354; State v. Brown, 11 Iredell (N.C.) 141; People v. Pennock, 60 N.Y. 421; People, ex rel., v. Schuyler, 4 N.Y. 173; State v. White, 10 Rich. 442.

Difficulty arises sometimes in determining whether an officer acts officially or whether his acts must be regarded as those of the individual.

In the case of Lammon v. Feusier, 111 U.S. 17, 28 L.Ed. 337, 4 S.Ct. 286, the Supreme Court of the United States held a United States marshal liable upon his bond for seizing the property of one upon a writ of attachment issued against the property of another.

In the case of State, ex rel., v. White, 88 Ind. 587, the same principle was applied under substantially similar circumstances.

These cases are unquestionably in harmony with a large majority of the decisions upon that subject, and in each of them the unauthorized act of the officer is characterized as colore officii. But the officer was acting under a valid writ, and by virtue of the mandate of the law, and the trespass consisted in an abuse of the power vested in him, and not in the performance of an act which the law did not enjoin upon him at all.

It was an instance of exceeded, rather than usurped power. Such acts are within the express line of the sureties undertaking--that his principal shall faithfully discharge the duties of his office according to law. But where an officer, though he assumes to act as such, commits a wrong under circumstances where the law does not impose upon him any duty to act at all, the wrong is not a violation of any official duty, and consequently is not embraced within the sponsorship of the surety.

It has been repeatedly decided by the Supreme Court of this State that where money is paid to a county clerk, though paid to and received by him in fact as...