Lee v. Charmley

• Decision Date: 31 December 1910
• Citation: 129 N.W. 448,20 N.D. 570
• Parties: LEE, Sheriff, v. CHARMLEY et al.
• Court: North Dakota Supreme Court

20 N.D. 570

129 N.W. 448

LEE, Sheriff,

v.CHARMLEY et al.

Supreme Court of North Dakota.

Dec. 31, 1910.

Syllabus by the Court.

The sureties upon the official bond of a deputy sheriff who undertake that he shall faithfully and impartially discharge the duties of his office are liable for any unlawful or oppressive act done by such officer under color or by virtue of his office.

The purpose of an official bond is to provide indemnity against malfeasance and misbehavior in public office, the misuse of powers belonging to the office, and the assumption under guise of official action of powers not belonging to it. All acts so performed, though unlawful or wrongful, are official acts within the meaning of an undertaking that an officer shall faithfully and impartially discharge the duties of his office; and as such may be reasonably considered to have been within the contemplation of the sureties at the time they entered into the undertaking as constituting a breach of its conditions.

A deputy sheriff who falsely claiming to have a warrant for the arrest of a person not formally charged with crime of any kind goes to his house in the nighttime, and under guise of the authority of his office arrests and takes such person into custody, has committed an unauthorized and unlawful act under color of his office, for which the sureties upon his official bond are liable in a proper action.

Appeal from District Court, Ward County; E. B. Goss, Judge.

Action by John J. Lee, Sheriff of Ward County, against John Charmley, V. J. Winset, and another. A demurrer to the complaint was overruled, and defendant Winset and another appeal. Affirmed.Murphy & Wooledge, for appellants. John E. Greene, R. H. Bosard, and G. W. Twiford, for respondent.

ELLSWORTH, J.

The action in which this appeal is taken is brought by the plaintiff, as sheriff of Ward county, against defendant Charmley, as a deputy sheriff appointed by him, and the other defendants as sureties upon the deputy's bond. The conditions of the bond as set out in the complaint are to the effect that “if the said John Charmley shall faithfully and impartially discharge the duties of said office of deputy sheriff, and render a true account of all moneys and property of every kind that shall come into his hands as such officer, and pay over and deliver the same according to law, then the above obligation to be void,” etc. Then follows an allegation in these words: “That on or about the 8th day of July, 1905, at or about the hour of 11:30 p. m., in the nighttime, in the city of Kenmare, Ward county, N. D., the defendant John Charmley, as deputy sheriff, did go to the home of one Edward J. Brown, and did, as deputy sheriff, wrongfully, unlawfully, and without reasonable cause or authority of law place under arrest and take into custody the said Edward J. Brown; that said John Charmley, as deputy sheriff, at the time said arrest was made, had no warrant for the arrest of said Edward J. Brown, nor was there at such time any complaint filed charging the said Edward J. Brown with any crime, nor was any crime committed by the said Edward J. Brown; that the said John Charmley, as deputy sheriff, represented at the time said arrest was made that he had a warrant for the arrest of Edward J. Brown, which statement was false, and the said John Charmley compelled the said Edward J. Brown to accompany him as such deputy sheriff and as such deputy sheriff took him into custody; that said acts were in violation of the duties of said John Charmley as deputy sheriff, and by reason thereof the said John Charmley did not faithfully and impartially perform his duties as deputy sheriff in the premises; that such acts were in violation of the conditions of the bond of said John Charmley as deputy sheriff hereinbefore set forth for the faithful performance of his duties as such deputy sheriff.” Then follow allegations to the effect that, by reason of said unlawful acts of defendant Charmley, the plaintiff as sheriff of Ward county was sued by said Edward J. Brown and a judgment recovered against him by said Brown in the sum of $652.65; that the defendant sureties were duly notified to come in and defend said action, and that one of them appeared and took some steps in the procedure; that the plaintiff was compelled to pay the amount of said judgment, and to expend large sums of money in the defense of said action, to his damage in the aggregate in the sum of $906.65, for which sum he demands judgment against the defendants. The defendant sureties appeared and jointly interposed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action against them. A trial upon the issues of law presented by this demurrer was had before the district court of Ward county, which made an order overruling the demurrer. From this order of the district court the sureties have appealed to this court.

The only point, therefore, presented by this appeal or urged in this court, is that based upon the contention of appellants' counsel that the complaint does not state a cause of action against appellant sureties for the reason that the facts set forth in the complaint do not, though admitted, constitute such a breach of the official bond given by defendant Charmley as deputy sheriff as to render liable the appellants as sureties, that the complaint negatives the conclusion that the acts complained of were the official acts of the deputy sheriff, or that he acted under “color of office,” and, on the contrary, show that he was a mere private trespasser.

The courts in their consideration of those acts of public officers which result in liability to the sureties upon their official bonds have found it convenient to divide such acts into three distinct classes: (1) Acts done by virtue of office; (2) acts done under color of office; and (3) acts done in a purely private or individual capacity. By an absolute agreement of authority, the sureties upon an official bond are liable for wrongful acts within the first class, and are not liable for those of the third class. Regarding those acts falling within the second class, there has been for generations an irreconcilable conflict of authority. We are cited to long lines of cases in which the holding of liability or nonliability of the sureties is based entirely upon the distincton between acts done virtute officii and colore officii; the courts of many different states having announced holdings that are diametrically opposed. The learned discussions contained in the opinions handed down in these cases are interesting, and serve admirably to accentuate the remark of the Supreme Court of Maryland that when authorities so eminent as Chief Justice Green of New Jersey, Judge Cowen of New York, and Judge Ruffin of North Carolina are found in accord with one principle of liability, and Judge Shaw of Massachusetts, Tilghman of Pennsylvania, Bronson of New York, Thurman of Ohio, and Justice Gray of the Supreme Court of...