129 N.W. 448 | N.D. | 1910
The action in which this appeal is taken is brought by the plaintiff as sheriff of Ward county against defendant Channley, as a deputy sheriff, appointed by him and the other defendants as sureties upon the deputy’s bond. The conditions of the bond as
Then follows allegations to the effect that, by reason of said unlawful acts of defendant Oharmley, the plaintiff, as sheriff of Ward county, was sued by said Edward J. Brown, and a judgment recovered against him by said Brown in the sum of $652.65; that the defendant sureties were duly notified to come in and defend said action, and that one of them appeared and took some steps in the procedure; that the plaintiff was compelled to pay the amount of said judgment, and to expend large sums of money in the defense of said action, to his damage in
The defendant sureties appeared and jointly interposed a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action against them. A trial upon the issues of law presented by this demurrer was had before the district court of Ward county, which made an order overruling the demurrer. From this order of the district court the sureties have appealed to this court.
. The only point, therefore, presented by this appeal or urged in this court is that based upon the contention of appellant’s counsel, that the complaint does not state a cause of action against appellant sureties, for the reason that the facts set forth in the complaint do not, though admitted, constitute such a breach of the official bond given by defendant Charmley as deputy sheriff, as to render liable the appellants as sureties; that the complaint negatives the conclusion that the acts complained of were the official acts of the deputy sheriff, or that he acted under “color of office,” and, on the contrary, show that he was a mere private trespasser.
The courts, in their consideration of those acts of public officers which result in liability to the sureties upon their official bonds, have found it convenient to divide such acts into three distinct classes: (1) Acts done by virtue of office; (2) acts done under color of office; and (3) acts done in a purely private or individual capacity. ¡¡By an absolute agreement of authority, the sureties upon an official bond are liable for wrongful acts within the first class, and are not liable for those of the third class. ¡Regarding those acts falling within the second class there has been for generations an irreconcilable conflict of authority. We are cited to long lines of cases in which the holding of liability or nonliability of the sureties is based entirely upon the distinction between acts done virtute officii and colore officii, the courts of many different states having announced holdings that are diametrically opposed. The learned discussions contained in the opinions handed down in these cases are interesting, and serve admirably to accentuate the remark of the supreme court of Maryland, that when authorities so eminent as Chief Justice Green of New Jersey, Judge Oowen, of New York, and Judge Ruffin, of North Carolina are found in accord with one principle of liability, and Judge Shaw of Massachusetts,
The distinction made between the official acts that serve as the basis of these conflicting lines of authority is that “acts done virtute officii are where they are within the authority of the officer, but in doing them he exercises that authority improperly or abuses the confidence which the law reposes in him; while acts done colore officii are where they are of such a nature that his office gives him no authority to do‘ them.” Brandt, Suretyship, 3d ed. § 690; Gerber v. Ackley, 37 Wis. 43, 19 Am. Rep. 751; People ex rel. Kellogg v. Schuyler, 4 N. Y. 187. Under the rule of the common law adopted by the courts of New York, New Jersey, North Carolina, and Wisconsin, the sureties upon an official bond were held liable'only for wrongful acts of the officer done virtute o-fficii. Acts done colore officii within the meaning of the definition above quoted were classed as unofficial acts, in doing which the officer was a mere trespasser and for which the sureties were not bound. State, Allen, Prosecutor, v. Conover, 28 N. J. L. 224, 78 Am. Dec. 54.
The almost uniform current of the later cases, however, regards wrongful acts of a public officer colore officii as official acts, for which the sureties upon his bond are liable. Such is the holding of the courts of last resort of Pennsylvania, Maine, Massachusetts, Ohio, Virginia, Kentucky, Missouri, Iowa, Nebraska, Texas, California, Minnesota, Illinois, and of the Supreme Court of the United States. And, in reviewing these authorities, this court in one of its former opinions has remarked, “While there is a dispute among the authorities whether the sureties on a sheriffs bond are liable for the wrongful act of their principal in seizing the property of a third person, the more numerous decisions are found arrayed in support of the rule that they are liable, and these cases appear to us to have the best of the argument. See Lammon v. Feusier, 111 U. S. 17, 28 L. ed. 337, 4 Sup. Ct. Rep. 286, where the authorities are reviewed and where the doctrine we deem sound is enunciated.” Welter v. Jacobson, 7 N. D. 32, 66 Am. St. Rep. 632, 73 N. W. 65. In accepting the principle that the sure
With whatever controversy, therefore, tbat has waged between conflicting principles based on tbe distinction of official acts done by virtue of office and by color of office, we are not concerned, and tbe only point tbat remains for our determination is, Were tbe acts of defendant Cbarmley done either by virtue of office, or color of office, or were they such as lacked all official character ?
Summarized, tbe allegations of tbe complaint are to tbe effect tbat Cbarmley, as deputy sheriff, in tbe nighttime, went to tbe home of Brown, and, announcing that’be bad in bis possession a warrant for the arrest of Brown, as such deputy sheriff, took him into custody and compelled him to accompany him, which acts being wrongful, unlawful, and without reasonable cause or authority of law, caused tbe damage upon which tbe suit against bis principal, tbe sheriff, was based. By reason of such acts, it is alleged, Cbarmley did not faithfully and impartially perform bis duties as deputy sheriff in accordance with tbe conditions of bis bond.
This status of fact admitted, appellant strenuously contends tbat “tbe acts alleged by tbe complaint do not constitute such a breach of tbe official bond of said deputy sheriff as to bold these appellants liable as suretiestbat “an officer must have something other than mere bolding of office, which appears to give him authority to act which, if valid, would authorize tbe act.” This contention has apparent support in many cases which seem to predicate color of office wholly upon tbe fact tbat tbe officer was armed with a warrant, or some process of tbat character directing him to do some official act; and this being tbe case, tbe fact tbat tbe unlawful act complained of was committed against tbe person or property of a party not named in tbe writ did not deprive it of tbe “color” requisite to its official character. Lammon v. Feusier, supra, and cases cited therein. Distinctions such as this, however, seem to us to be fanciful refinements, rather than substantial reason
We think, therefore, that the allegations of the complaint set out a wrongful malfeasance of Charmley committed under the guise of' an official act, unquestionably under color of office, and with characteristics which might almost warrant a holding that it was done by virtue of office. Certainly it is such an act as the sureties upon his. official bond should reasonably be held to have had in contemplation as constituting a breach of its conditions, at the time they entered into their undertaking. Greenberg v. State, 8 L.R.A.(N.S.) 1223, and note (225 Ill. 174, 116 Am. St. Rep. 127, 80 N. E. 100).
The action of the District Court in holding that the complaint stated facts 'constituting á cause of action against the defendant sureties was; proper, and its order is affirmed.