Peinhardt v. West

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 225.
• Citation: 212 Ala. 83,101 So. 736
• Parties: PEINHARDT v. WEST ET AL.
• Court: Alabama Supreme Court

101 So. 736

212 Ala. 83

PEINHARDT v. WEST ET AL.

6 Div. 225.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Cullman County; James E. Horton, Jr. Judge.

Action for damages by A. H. Peinhardt against J. M. West and the National Surety Company. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911. Reversed and remanded.

Brown &amp Griffith, of Cullman, for appellant.

F. E St. John, of Cullman, for appellees.

BOULDIN J.

Cities and towns may by ordinance provide for such officers as are deemed needful or proper for the good government thereof, fix their compensation and terms of office, prescribe their duties, powers, and liabilities, and "require them to give bond in such sum and to be conditioned and approved as the council may prescribe." Code 1907, § 1171.

This power to require bond applies to all the officers to be provided by the council. Section 1189, Code of 1907, is a mandatory statute requiring bonds of officers and employees handling money or property of the municipality. It does not limit the general power conferred by section 1171. Section 1171, amplified by section 1192, authorizes the creation of a police force under such name as may be desired, and is not limited to one under the general supervision of a chief of police as authorized under subdivision 10, § 1192.

Bonds of municipal officers are subject to the general provisions of sections 1500 and 1501, Code of 1907, defining the legal effect and conditions of bonds of all public officers. Ex parte Martin, 180 Ala. 620, 61 So. 905; Michael v. State ex rel. Welch, 163 Ala. 425, 50 So. 929; Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157.

Under section 1501, all official bonds, "whether correct or incorrect in its recitals as to the term of office or otherwise, *** or whether approved by the proper officer or not approved by any, or if irregular in any other respect, *** if delivered as the official bond of the officer, and serving as such, shall be obligatory on every one who subscribed it for the purpose of making the official bond of such officer," etc.

Neither the variance between the condition named in the bond and in the ordinance, nor the approval by the mayor instead of the board, can invalidate the bond.

Does the fact that the bond was made as that of a "police officer," instead of "marshal," render the bond void?

"The city marshal of a municipality is the chief police officer thereof, clothed with authority to apprehend offenders against its ordinances, etc., and

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