Lowe v. City of Guthrie

• Citation: 44 P. 198,4 Okla. 287,1896 OK 22
• Parties: LOWE et al. v. CITY OF GUTHRIE.
• Decision Date: 13 February 1896
• Court: Supreme Court of Oklahoma

44 P. 198

4 Okla. 287, 1896 OK 22

LOWE et al.
v.
CITY OF GUTHRIE.

Supreme Court of Oklahoma

February 13, 1896

Syllabus by the Court.

1. The contracts of sureties on official bonds are strictissimi juris.

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

3. The official bond of a city clerk is one required by statute, and is a statutory bond.

4. 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. 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 of 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 against public policy.

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

7. The office of city clerk is, in contemplation of law, a purely clerical office, and, in the absence of a statute or ordinance of the city authorizing the clerk to collect or receive moneys due such city, he has no authority to make such collections or receive any moneys 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. The law creates the office of city treasurer, defines its duties, and generally directs the payment of all moneys belonging to the municipality to the treasurer, and it was never intended that the city clerk should he the custodian of any moneys belonging to the city.

9. 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 moneys that shall come into his hands by virtue of his office. 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. Sureties on official bonds are liable only for acts of the principal done virtute offcio, and not for acts done colore officio.

11. The payment of money for liquor license to the 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 collection.

12. 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.

Appeal from district court, Logan county; before Justice Dale.

Action by the city of Guthrie against T. J. Lowe and others on a bond. From a judgment for plaintiff, the sureties appeal. Reversed.

John F. Stone, for appellants.

B. T. Hainer and J. A. Baker, for appellee.

BURFORD, J.

This was an action by the city of Guthrie on the official bond of E. G. Millikan, to recover for moneys collected by said Millikan during his term as city clerk of said city. The other defendants in said action are sureties on said bond. The petition alleges that, as city clerk, Millikan collected and failed to pay over the sum of $5,325.85 collected for liquor licenses, the sum of $280 collected from water consumers, and the sum of $19 collected from various parties for tapping water mains, all of which he had appropriated to his own use. It was further alleged that the city had recovered a judgment against Millikan for the sum of $3,379.02 on account of said default, which was still unpaid. 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-named 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 officer 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."

The sureties first moved for an order to require the city to make her petition more definite and certain by specifically 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. 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 collectible 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 there [44 P. 200] of, 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 herein before 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 the bond aforesaid 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. Eigh...