State v. Alabama Power Co.

• Decision Date: 06 June 1935
• Docket Number: 3 Div. 122
• Citation: 162 So. 110,230 Ala. 515
• Parties: STATE v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

162 So. 110

230 Ala. 515

STATE v. ALABAMA POWER CO.

3 Div. 122

Supreme Court of Alabama

June 6, 1935

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill of interpleader having been filed by the National Surety Company, as surety on official bond of H.O. Garrett, clerk of the circuit court of Tallapoosa county, the state of Alabama and the Alabama Power Company filed claims against the fund paid into court. From a decree denying its claim of preference, and directing a ratable distribution of the fund the state appeals.

Affirmed.

A.A Carmichael, Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

Steiner, Crum & Weil and Sam Rice Baker, all of Montgomery, for appellee.

BROWN Justice.

The question presented by this appeal is whether or not the claim asserted by the state against the fund paid into court by the National Surety Company, surety on the official bond of Garrett, as clerk of the circuit court of Tallapoosa county, in discharge of its liability, is within the influence of the common-law doctrine of "prerogative right of preference," recognized and declared by this court in the following, among other, cases: Green, Superintendent of Banks, v. City of Homewood, 222 Ala. 225, 131 So. 897; Montgomery, Superintendent of Banks, v. Sparks, Tax Collector, 225 Ala. 343, 142 So. 769; Montgomery, Superintendent of Banks, v. State et al., 228 Ala. 296, 153 So. 394.

The case was submitted on an agreed stipulation of facts. The state's claim in amount is $5,341.95, made up of the following items: Trial tax, $310; solicitor's fees, $2,479.85; fines and forfeitures, $2,014; witness fees, $103.85; sheriffs' fees, $425.30; clerk's fees illegally collected, $6.95; and justices of the peace fees $2, collected by said Garrett as clerk of the circuit court and for which he failed to account.

The claim of the appellee is for $4,250 deposited by it with said Garrett as clerk of said circuit court in a condemnation proceeding, in accordance with the statute in such cases provided. After some litigation, the said condemnation proceedings were settled between the parties, and the compensation to which the landowners were entitled was agreed upon and paid by appellee out of money other than that deposited with said Garrett as clerk. Garrett converted said deposit to his own use and has failed to account therefor.

The trial court ruled that the rights of the parties were governed by the provisions of section 2612 of the Code, which provides: "Every official bond is obligatory on the principal and sureties thereon--1. For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof. *** 3. For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law. 4. The words, 'For the use and benefit of every person injured,' as used in subdivision three, shall include all persons having a direct and proximate interest in the official act or omission and all persons connected with such official act or omission, by estate or interest"; that the liability of the surety is purely statutory, and the statute by necessary implication precludes the application of the common-law doctrine of "prerogative right of preference" to the fund deposited in court by the surety in discharge of its liability, and the claimants must share ratably in its distribution.

The question presented is not free from difficulty, but after mature consideration, we are constrained to agree to the conclusion reached by the circuit court, for reasons which are now stated.

However, before stating the basis of our conclusion, we deem it proper to observe that while the forms of official bonds are substantially the same as to all officers, the legal effect of the bond is different as to each officer, in consequence of the fact that the duties and responsibilities of the respective public officers are different, and the bond must be interpreted as though the statutory duties of the officer were inserted therein. State of Nevada v. Nevin et al., 19 Nev. 162, 7 P. 650, 3 Am.St.Rep. 873; 29 R.C.L. page 497, § 176.

The duties of clerks of circuit courts are manifold; they are not primarily collectors or custodians of public revenue, but such revenue as comes into their hands ordinarily is incident to their duties in respect to the collection of costs of court, and what follows in the course of this opinion is not intended to apply to the bonds of public officers whose primary duty is collecting or preserving public revenue.

Under the common law, a public officer was not required to give an official...