Middleton v. State ex rel. City of Elkhart

• Decision Date: 28 September 1889
• Citation: 120 Ind. 166,22 N.E. 123
• Parties: Middleton et al. v. State ex rel. City of Elkhart.
• Court: Indiana Supreme Court

120 Ind. 166

22 N.E. 123

Middleton et al.

v.State ex rel.

City of Elkhart.

Supreme Court of Indiana.

Sept. 28, 1889.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

J. M. Vanfleet and H C. Dodge, for appellants. Perry S. Turner, for appellee.

Coffey, J.

William D. Middleton, one of the appellants, was duly elected city clerk for the city of Elkhart, and executed his official bond to the state of Indiana in the penal sum of $3,000, with the other appellants as his sureties. The condition of the bond is that, “if the said William D. Middleton shall faithfully perform the duties of the said office, and pay to the person or persons entitled thereto all moneys received by him according to law and the ordinances of said city, then this bond shall be void; otherwise it shall remain in full force and effect.” At the time of the election of said Middleton as city clerk, and at the time of the execution of said bond, there was an ordinance of said city in force which authorized saloon-keepers to pay to the city clerk the money due for city licenses, authorizing them to retail intoxicating liquors in the city of Elkhart. There was also an ordinance in force requiring peddlers to pay to the city clerk a given sum of money for license to vend goods in said city.

It is averred in the complaint, as a breach of said bond, that “said Middleton received the sum of one thousand five hundred dollars of the moneys and property of said city of Elkhart, said moneys having been received by the said William D. Middleton to and for the use of said city, by virtue of his office as such clerk, under and pursuant to the statutes of the state of Indiana, and under and pursuant to the ordinances of said city of Elkhart, which had theretofore been duly enacted by the common council of said city, authorizing and empowering said clerk to accept and receive said money for and on behalf of said city of Elkhart; that said William D. Middleton hath made breach of the conditions of said bond in the following particulars, that is to say, that the said William D. Middleton hath, at divers times to the plaintiff unknown, between the 24th day of September, 1884, and the 1st day of December, 1885, wrongfully converted all of said moneys, to-wit, the sum of fifteen hundred dollars, so accepted and received by him for the use of the said city of Elkhart, to his own use and behoof, and he hath failed, neglected, and refused to account for and pay over the said moneys, or any part thereof, so accepted and received by him for the use of said city, to the person and persons entitled to receive the same, but so to do hath wholly refused, though thereunto often requested by the person and persons lawfully entitled to receive the same.” A demurrer to this complaint for want of sufficient facts to constitute a cause of action was overruled by the court, and the appellants excepted. A trial resulted in a judgment against the appellants, and upon appeal to this court they assign as error that the circuit court erred in overruling the demurrer to the complaint.

It is contended on the part of the appellants that all money belonging to or due to a city must be paid to the city treasurer, under the statutes prescribing the duties of city officers, and that the common council of a city has no power to authorize any other person to receive it, and that an ordinance which authorizes the city clerk to receive money due to the city is void. On the other hand, it is contended by the appellee that, as the bond in suit expressly requires the city clerk to account for and pay over all money that may come into his hands by virtue of any city ordinance, and inasmuch as he did receive the money for the recovery of which this suit is prosecuted by virtue of the city ordinances of the city of Elkhart, that it ought to be held that he and his bondsmen are estopped from denying the validity of the ordinances under which the money was received. Section 3095, Rev. St. 1881, in force at the time of the execution of the bond in suit, provides that “the mayor, each member of the common council, city clerk, assessor, civil engineer, street commissioner,...