Butler v. City of Milwaukee

| Wis. | Nov 17, 1903

Maeshall, J.

The demurrer seems to have been sustained below solely upon the ground that the second assistant city clerk is within the exemption clause of sec. 6, ch. 313, Laws of 1895, which provides that “officers and clerks, for the faithful discharge of whose duties a superior officer is required to give bond, .... shall not be affected” by the rules of the pity service commissioners “as to- their election, selection, or appointment.” If such ground was well taken it is conceded by counsel for appellants that the decision complained of must be affirmed.

The quoted language seems plain. If there is any ambiguity therein giving warrant for the court to search for the true meaning thereof by the light of rules for judicial construction, we are unable to discover it Tbe obvious legislative idea voiced therein is that, as to an officer whose fidelity to the duties of his position is secured by the bond of a superior, no further security in that regard is required for the public interests, and that interference with the appointment or election of the inferior regardless of the wishes of the superior and responsible head of the service would be unjust. That being the plain policy of the law, expressed in general terms applicable, reasonably, to one inferior officer as well as to another, it would be going beyond legitimate judicial construction to search for and declare exceptions.

The foregoing leaves very little that needs to be said. The complaint shows that the city clerk was by law required to give a bond for the faithful discharge of the duties of his office. That included, in .the administration of such office, acts done by deputies and assistants as well as those done by the clerk himself. In legal effect all the acts are those of the responsible head, the city clerk, and so are within the terms of the official bond. A principal officer is always liable for the official misconduct of one of his assistants, and cannot escape liability therefrom upon the ground that it was not a personal fault of his. The law knows only the superior officer in such cases. That is too elementary to require discussion.

The place- of a mere assistant to a superior officer is one of less dignity than that of a deputy (9 Am. & Eng. Ency. of Law, 369), yet the latter, in the absence of some express provision to the contrary, is regarded in law as the mere private ' agent of his superior. He is supposed to act only in the name of his superior and upon the latter’s responsibility. The principal and his deputy or deputies are regarded as but one officer and that officer the principal. Russell v. Lawton, 14 Wis. 202" court="Wis." date_filed="1861-11-02" href="https://app.midpage.ai/document/russell-v-lawton-6598497?utm_source=webapp" opinion_id="6598497">14 Wis. 202. It is upon that principle that the official bond of an officer is generally regarded as .covering all acts of his deputies and assistants within the scope of their authority, the same as if performed by himself personally, though he may be entirely ignorant of their conduct. It must follow that the bond of the city clerk in this case, general in terms, covering the entire administrative duties of his office, includes all acts done within the scope of the administration by his second assistant. That satisfies the letter and spirit of the exemption clause of the city service act.

By the Court. — The order is affirmed.