Orman v. City of Pueblo

• Decision Date: 08 May 1885
• Citation: 8 Colo. 292,6 P. 931
• Parties: ORMAN and others v. CITY OF PUEBLO.
• Court: Colorado Supreme Court

6 P. 931

8 Colo. 292

ORMAN and others v. CITY OF PUEBLO.

Supreme Court of Colorado

May 8, 1885

Appeal from the district court of Pueblo county.

G Q. Richmond and John M. Waldron, for appellants.

Chas. E. Gast and Chas. E. Stein, for appellee.

HELM J.

This action was brought in the court below by the city of Pueblo against one Boydston as principal, and appellants as sureties, upon the official bond of Boydston given as city clerk of said city. A demurrer by said sureties to the amended complaint was overruled in the court belw and, electing to stand by their demurrer, judgment was rendered against them; from which judgment this appeal is taken.

The complaint avers that Boydston, as city clerk, has collected and received from the issuance of licenses, under ordinances of the city, the sum of $1,792,--said sum being so collected for the sole use and benefit of the city; and that he fraudulently converted the same to his own use, and, in violation of the terms of his said official bond, failed and refused to pay the same or any part thereof into the city treasury.

Certain legal propositions concerning the liability of sureties upon official bonds are elementary, and are conceded by counsel of both parties, among which are the following:

First, that the sureties on such bonds enter into the contract thereof with reference to existing statutes on the subject, and that, therefore, the law becomes a part of the contract; second, that the engagement or the obligation of the surety cannot be extended beyond the strict terms of the bond; and, third, that when a breach thereof is assigned, and an attempt is made to hold the surety, such breach must be predicated upon some official misconduct on the part of the principal.

We therefore assume, without the citation of authorities and without argument, that if the moneys admitted by the demurrer to have been received by Boydston did not come into his hands while acting in his official capacity, and by virtue of some law authorizing him to receive them as city clerk, appellants are not liable in this action.

Thus two subjects of inquiry are presented: First, whether or not there was any statute authorizing him to receive such moneys ex officio as city clerk, or whether the statutes conferred upon the city council authority to impose upon him this duty by ordinance or otherwise; and, second, if it be concluded that the city council possessed this authority, does the complaint show that they exercised it? A preliminary question commands a moment's notice. We deem the formal averments of the complaint sufficient, so far as the statement of the circumstances and nature of the liability are concerned; it was not necessary to specify from whom, or what times and under what circumstances, nor the particular business in connection with which, each different fee contained in the aggregate named was collected under the license ordinance. These matters are evidential facts, and the complaint sufficiently avers the ultimate facts creating the liability.

There is nothing in the statutes directly imposing upon the city clerk the duty of receiving moneys paid for licenses authorized to be issued; but we think the council are clearly empowered thereby to require of him the performance of such duty. Section 3369 of the General Statutes specifies certain services demanded of the city clerk, and concludes with the following language: 'And shall perform such other duties as may be required by the ordinances of the city.' Section 3316 says, inter alia, that 'all moneys collected for licenses, or otherwise, shall be paid into the treasury of the corporation at such times and in such manner as may be prescribed by ordinance.' Section 3312 authorizes the city council 'to fix the amount, terms, and manner of issuing and revoking licenses.' Section 3357 declares that the trustees or council 'shall require from the treasurer, and such other officers as they may think proper, a bond, with proper penalty and surety, for the care and disposition of corporation funds in their hands.' From section 3369, aforesaid, it appears that the council may, if they see fit so to do, impose upon the clerk, as clerk, in addition to those specified by statute, such other duties as in their judgment may be deemed appropriate.

Counsel for appellant argue, with reference to the last above-mentiond statutory provision, that the other duties which the city council are authorized to impose upon this officer must be germane to those previously specified therein. We deem it unnecessary to controvert or discuss the correctness of their positon; for conceding it, we are of opinion that the receipt of corporation moneys, under the circumstances specified in the complaint before us, is sufficiently germane to the official duty of issuing...