Lowe v. City of Guthrie

• Decision Date: 13 February 1896
• Parties: T. J. LOWE et al. v. THE CITY OF GUTHRIE.
• Court: Oklahoma Supreme Court

1896 OK 22

44 P. 198

4 Okla. 287

T. J. LOWE et al. v. THE CITY OF GUTHRIE.

Supreme Court of Oklahoma

Decided: February 13, 1896

Error from the District Court of Loqan County.

Syllabus

¶0 1. OFFICIAL BONDS--Sureties. The contracts of sureties on official bonds are strictissimi juris.

2. STATUTORY BOND. A statutory bond is one required to be given by some statute.

3. CITY CLERK--Bond. the official bond of a city clerk is one required by statute, and is a statutory bond.

4. OFFICIAL BOND--Contract--Extent of. Sureties on an official bond contract with reference to the law requiring such bond, and regulating the duties of the principal, and these laws enter into and become a part of the contract as much as if incorporated into the bond itself. And the liability of sureties cannot be extended beyond the strict terms of their engagement, as contemplated at the time of giving bond.

5. SAME--Obligation Authorized by Statute Valid. An official bond which contains all the conditions required by statute, and also conditions in excess of those specified by statute, is valid, so far as it imposes obligations authorized by the statute: but the stipulations which are in excess or it may be rejected as surplusage. But if the bond falls so far short of the statutory requirements as to be invalid as a statutory bond, it may be treated as a common law bond, unless prohibited by some statute, or is against public policy.

6. SAME--Construction--General Rule. It is a general rule of construction applicable to official bonds, that general words cannot enlarge a liability fixed by particular words

7. CITY CLERK--Clerical Office. The office of city clerk is, in contemplation of law. a purely clerical office, anti in absence of a statute, or ordinance of the city authorizing the clerk to collect or receive monies due such city, he has no authority to make such collections or receive any monies due the city. And the sureties on his official bond do not contract with reference to any such unauthorized acts. and are not liable for defaults occurring on account of such acts.

8. CITY TREASURER--Law Creates--Duties. The law creates the office of city treasurer: defines its duties, and generally directs the payment of all monies belonging to the municipality to the treasurer, and it was never intended that the city clerk should be the custodian of any monies belonging to the city.

9. CITY CLERK--Bond--Sureties Liable for What. The statute requires the clerk to give a bond for the faithful discharge of the duties of his office. This comprehends every duty required of him by law or ordinance. It embraces the faithful accounting for, and payment to the city treasurer of, all monies that shall come into his hands by virtue of his office. And his sureties can only be held liable for a failure to faithfully discharge such duties, although the terms of the bond may be more comprehensive.

10. OFFICIAL BONDS--Sureties Liable, for What Acts. Sureties on official bonds are liable only for acts of the principle done virtuti officii, and not for acts done colore officil.

11. LIQUOR LICENSE--Payment to City Clerk Unauthorized. The payment of money for liquor license to city clerk is not only unauthorized, but Is in violation of the spirit of the law, which directs its payment to the city treasurer, and the sureties of the clerk are not liable on his official bond for such collections.

12. OFFICIAL BOND--Sureties Not Entitledd to Credit. The sureties on the bond of the city clerk are not entitled to credit for the amount of balance due the clerk for salary, when it appears that the clerk is indebted in a large sum to the city on account of defaults for which his sureties are not liable. A part of his indebtedness being secured and a part unsecured, the creditor has a right to have the credit applied to the unsecured portion.

John F. Stone, for plaintiffs in error.

B T. Hainer, for defendant in error.

BURFORD, J.:

¶1 This was an action by the city of Guthrie on the official bond of E.G. Millkan, to recover for monies collected by said Millikan during his term as city clerk of said city. The other defendants in said action are sureties on said bond.

¶2 The petition alleges that as city clerk, Millikan collected and failed to pay over the sum of five thousand three hundred and twenty-five dollars and eighty-five cents, collected for liquor license. The sum of two hundred and eighty dollars, collected from water consumers. The sum of nineteen dollars, collected from various parties for tapping water mains. All of which he had appropriated to his own use.

¶3 It was further alleged that the city had recovered a judgment against Millikan for the sum of three thousand three hundred, seventy-nine dollars and two cents on account of said default which was still unpaid.

¶4 The bond is made an exhibit to the petition and is as follows:

"OFFICIAL BOND.

"TERRITORY OF OKLAHOMA, COUNTY OF LOGAN, ss.

"Know all Men by these Presents:

"That E.G. Millikan as principal, and John F. Stone, Lowe & Huston and O. R. Fegan, as sureties, are held and firmly bound unto the city of Guthrie and Territory of Oklahoma. in the sum of one thousand dollars, for the payment of which we bind ourselves, our heirs, executors and administrators.

"The condition of the above obligation is: That whereas, the above bound E.G. Millikan has been elected city clerk in and for the city of Guthrie.

"Now if the said E.G. Millikan shall render a true account of his office and of the doings therein to the proper' authority, when required thereby or by law; and shall promptly pay over to the person or officers entitled thereto, all money which may come into his hands by virtue of his said office; and shall faithfully account for all the balances of money remaining in his hands at the termination of his office, and shall hereafter exercise all reasonable, diligence and care in the preservation and lawful disposal of all money, books, papers, and sureties, or other property, appertaining to his said office, and deliver them to his successor, or to any person authorized to receive the same; and if he shall faithfully and impartially, without fear. favor, fraud or oppression, discharge all the other duties now or hereafter required of his office by law, then this bond to be void, otherwise in full force

"Signed this 16th day of April, A.D., 1892.

"E.G. MILLIKAN.

"JOHN F. STONE.

"LOWE & HUSTON.

"O. R. FEGAN."

¶5 The sureties first moved for an order to require the city to make her petition more definite and certain by specially pleading the authority whereby the city clerk collected the funds which it was alleged he had failed to account for. The court overruled this motion and the sureties excepted. They then demurred to the petition for the reason that said petition does not state facts sufficient to constitute a cause of action against them on said bond. The demurrer was overruled and exceptions saved. They then filed their answer, which consists of a general denial, also, specific denials that either of the class of funds claimed in the petition was collected by said Millikan by virtue of his office as city clerk.

¶6 Reply was filed, and cause submitted to the court for trial upon an agreed statement of facts, which stipulation is as follows:

"Before the District Court in and for Logan County, Oklahoma Territory:

"CITY OF GUTHRIE V. T. J. LOWE, et al.

"In the above stated case it is hereby stipulated and agreed by and between the parties to said case as follows, to-wit:

"First. That E.G. Millikan was duly elected, qualified and acting city clerk of the city of Guthrie as set forth in plaintiff's petition, and that on the 16th day of April, 1892, he gave the bond with the defendants as sureties, a copy of which bond is attached to plaintiff's petition.

"Second. That the said E.G. Millikan claiming authority as city clerk collected the sum of $ 280.02, money due the city of Guthrie for and on account of taxes due and collectable on dogs, known as the dog tax. and also on account of the tapping of water mains and water rates. (See No. 9.) Thirty-five dollars ($ 35.00) being collected from dog tax.

"Third. That the said E. G. Millikan collected over the sum of $ 3,000 due the city of Guthrie for and on account of liquor license.

"Fourth. That the said E.G. Millikan failed and refused to pay over either of said sums or any part thereof to the plaintiff, the city of Guthrie, or to any one for said city.

"Fifth. That on the day of 1893, the plaintiff, the city of Guthrie, brought suit in the district court aforesaid against the said Millikan for and on account of the collections hereinbefore mentioned, and that on the 12th day of May, 1894, the said plaintiff, the city of Guthrie, recovered a judgment against the said E.G. Millikan for the sum of $ 3,379.02, which said judgment remains in full force and effect.

"Sixth. That there was not at the time said bond was executed and the money collected by said Millikan on account of liquor tax, any ordinance of the said city of Guthrie, making it the duty of the said E.G. Millikan or any part of his duty, to collect any of the said liquor tax.

"Seventh. That there was not at the time said bond was executed and delivered, and at the time said money was collected any ordinance of said city defining and prescribing the duties of the said E.G. Millikan as city clerk wherein and whereby it was made any part of his duty to collect said liquor tax.

"Eighth. That at the time said bond was executed and delivered, and at the time the money was collected as herein before set forth, there was a duly elected, qualified and acting city treasurer of the city of Guthrie.

"Ninth. Said water rents and main-tap funds being collectible under and by virtue of ordinances numbered 181 and 184, hereto attached. Should judgment be rendered against said defendants upon account of either of the items set forth in stipulation number two and not upon the others the amount to

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