§ 243. Official bonds. An officer may be elected or appointed; his incumbency may be for a definite period or for life; qualifications may be prescribed or not; a bond may be required or not. If the statute prescribes that a bond must be given, the provisions of the law become a part of and control the interpretation of the bond. Strictly speaking, official bonds are those required by statute to be executed.1 This does not mean, however, that bonds given when not required by a statute are void; for if an undertaking is entered into voluntarily by sureties for an officer, it may be obligatory on the parties as a common law bond, although the officer could have qualified without providing a surety or guarantor. Public policy favors such undertakings. In the absence of a prohibition against requiring a bond, one may be given by an officer, and it is not extorted under duress though given reluctantly, and on demand of a superior in authority.3 Courts assume the parties intended to execute a valid undertaking. A bond which substantially recites the conditions required by statute, is a statutory bond. One which contains provisions in excess of statutory authority is valid as a statutory bond so far as it imposes obligations sanctioned by the legislature. The excess will be considered as surplusage. If it is so far short of the statutory requirements as to be invalid as an official bond, it may be obligatory as a common-law undertaking, unless public policy or statute prevents.5 Ed. 85; Commonwealth for Harris v. Teal et al. (1853) 14 B. Mon. (Ky.) 24; State v. Harney et al. (1880) 57 Miss. 863; Maddox et al. v. Shacklett et al. (1895) Ct. Chancery App. of Tenn. 36 S. W. 731, 735. In accord, note this language: "The great weight of authority, we believe, sustains the position that a bond, given by a public official, though not required by statute, is good at common law, if entered into voluntarily, for a valid consideration, and it is not repugnant to the letter or policy of the law, and that the sureties on such bond are bound thereby." Ashmuhs v. Bowyet et al. (1913) 39 Okla. 376, 135 Pac. 413, 50 L. R. A. (N. S.) 1060, 1062. But in Sullivan et al. v. People (1901) 16 Colo. Court of App. 303, 64 Pac. 1049, 1050, this language is contra: "An instrument executed by an officer in the form of an official bond, where no such bond is required of him by law, is not an official bond. It is without force or effect, and there can be no re covery upon it." See The Distinction Between Statutory and Common Law Bonds in California" (1918) 7 Cal. Law Rev. 20. 3 Moses et al. v. United States (1897) 166 U. S. 571, 41 L. Ed. 1119, with which compare United States v. Tingey (1831) 5 Pet. 115, 8 L. Ed. 66; Howgate v. United States (1894) 3 App. Cases D. C. 277, 294. Seemingly contrary is Board of Commissioners of Logan County v. Harvey et al. (1898) 6 Okla. 629, 52 Pac. 402. 4 McCracken v. Todd et al. (1862) 1 Kan. 148. But note this language of the Colorado Court of Appeals: "The case of an official bond executed without authority of law, and that of a bond executed because required by some statute, but failing to comply with the terms of the statute, must not be confounded. In the former case the instrument is void, while in the latter it may be enforceable as a common-law obligation." Sullivan et al. v. People (1901) 16 Colo. App. 303, 64 Pac. 1049, 1050. 5 Commissioners of Jefferson County v. Lineberger et al. (1878) 3 Mont. 231, 237, 35 Am. Rep. 462; Lowe et al. v. City of Guthrie (1896) 4 Okla. 287, 44 Pac. 198, 200. There are important differences between the statutory and common-law bond. If it be a voluntary one, only the obligee or beneficiary mentioned is able to recover thereon; and he may recover under its provisions only, since the statute is not applicable to a common-law undertaking. If the bond be an official one, it is payable to the obligee mentioned in the statute and upon such conditions as it prescribes.7 But unless the statute authorizes it, there can be no recovery upon official bonds by persons not mentioned as obligees.8 That the officer failed to execute the bond is immaterial, since the law imports into it his obligation. Action upon a statutory bond is maintainable in the same manner as if it had expressed only the statutory conditions.9 6 Mayor, etc., of Brunswick v. Harvey et al. (1902) 114 Ga. 733, 40 S. E. 754. 7 A bond made to the "State of Colorado" as obligee is a statutory one, although it is provided the obligee shall be "the people of the state of Colorado." Substantial compliance with the requirements of the statute is sufficient to constitute a statutory bond. Cooper et al. v. People, to Use of Board of Commissioners of Arapahoe County (1900) 28 Colo. 87, 63 Pac. 314. 8"We think the general rule is that no suit can be maintained by third parties on an official bond unless some authority can be found in the statute authorizing it. While the statutes of this state do not in express terms authorize suit by third parties on constable bonds, yet the form of the bond prescribed by statute would undoubtedly be construed as authorizing it." City of Eaton Rapids to Use of Snyder v. Stump et al. (1901) 127 Mich. 1, 86 N. W. 438, 439, 89 A. S. R. 451. Accord: Sunter v. Fraser et al. (1924) 194 Cal. 337, 228 Pac. 660; Alexander v. Ison et al. (1899) 107 Ga. 745, 33 S. E. 657. 9 Empire State Surety Co. v. Carroll Co. et al. (1912) 194 Fed. 593, 114 C. C. A. 435, 442; United States Fidelity & Guaranty Co. v. Union Trust & Savings Co. (1905) 142 Ala. 532, 38 So. 177; Parks et al. v. Bryant et al. (1905) 147 Ala. 627, 38 So. 180. Though the Montana statute provided that "all official bonds must be signed and executed by the principal and two or more sureties, or by the principal and one or more surety companies," its Supreme Court, recognizing diversity of authority, concluded that "under such circumstances, we think the decided weight of authority and the better reasoning favor the conclusion that the surety is not released by the failure of the principal to sign the bond." Deer Lodge County v. United States Fidelity & Guaranty Co. of Baltimore, Md. (1910) 42 Mont. 315, 112 Pac. 1060, 1063, Ann. Cas. 1912-A, 1010. The state may procure the reformation in equity of a statutory bond to accord with the intent of the parties.10 § 244. Formal requisites of statutory bonds. Specific formalities usually are required by statutes for the execution for official bonds. For example: the sureties must be residents of the state; 11 the approval and indorsement thereon must be made by some official; 12 the bond must be filed within a certain time after the election of the principal; 18 it must be signed by the principal and a certain number of sureties; 14 a certain official or body must be named therein as obligee;15 the bond must be given for a certain sum, which is exceeded therein;16 it must 10 Hall et al. v. State to Use of La Fayette County (1891) 69 Miss. 529, 13 So. 38, in concluding the opinion of which the Chief Justice said: "Large allowance must be made for the incompetence and negligence of ignorant officials in their dealings as public agents, so as to protect the too confiding people from the consequences of their failure of duty, where it can be done, as in this case, without any injustice to the individuals concerned. The fact that Hall (the principal) did not sign one of the bonds does not make any difference." 11 Board of School Directors of the Parish of Madison v. Brown et al. (1881) 33 La. Ann. 383. 12 Auditor v. Woodruff (1839) 2 Ark. 73, 33 Am. Dec. 368; People v. Edwards et al. (1858) 9 Cal. 286, 292; Inhabitants of Hudson v. Miles (1904) 185 Mass. 582, 71 N. E. 63, 102 A. S. R. 370, 374; Supervisors of Omro v. Kaime et al. (1876) 39 Wis. 468. 13 City of Chicago v. Gage (1880) 95 Ill. 593, 35 Am. Rep. 182. 14 Pima County v. Snyder et al. (1896) 5 Arizona 45, 44 Pac. 297; State v. McDonald et al. (1895) 4 Idaho 468, 40 Pac. 312, 95 A. S. R. 137. In City of Pocatello v. Fidelity & Deposit Co. of Maryland (1925) 41 Idaho 46, 237 Pac. 1106, 1107, it was recently said that the omission of the principal to sign an official bond does not relieve him from liability. 15 Cooper et al. v. People to the Use of Board of Commissioners of Arapahoe County (1900) 28 Colo. 87, 63 Pac. 314; Commissioners of Jefferson County v. Lineberger et al. (1878) 3 Mont. 231, 35 Am. Rep. 462. 16 The State of Nevada V. Rhoades, Adm'r et al. (1871) 6 Nevada 352, 371. A bond given for a larger amount than required by law obliges the sureties to pay a default of the principal only to the amount provided by statute. For the excess assumed by the surety, he is not liable. Graham v. The State ex rel. The Board of Commissioners of Jefferson County (1879) 66 Ind. 386, 389. But the South Dakota Supreme Court, in State v. Taylor et al. (1897) 10 S. Dak. 182, 72 N. W. 407, 66 A. S. R. 707, held that be joint and several;17 it must be attested by witnesses;18 it must be recorded.19 Such provisions are directory, not mandatory. A failure to comply with statutory requirements in the instances mentioned was held to be no defense to a surety on the official bond. § 245. The effect of alteration of an official bond. No different rule is applicable to the alteration of official bonds than to other undertakings by sureties.20 The substitution of one surety for another will not release a subsequent surety ignorant of the transaction, who has intrusted it to the principal for delivery. Here the subsequent surety has put it in the power of the principal to mislead the obligee. But if the obligee, or the official empowered to approve the bond, is aware of the alteration, and the surety sued is ignorant of it, he is released, because he signed with the understanding that certain others were to be co-sureties, and the obligee cannot insist that the contract has not been changed.21 § 246. Continuance of official bonds. The language of the bond, together with the statutory provisions governing it, must determine its duration. If it be "during his appointment," and by law the principal's appointment must be made annually, though the incumbent may continue until the successor qualifies, it is generally held that the bond is effective during the year only 22 bondsmen for $350,000, on an undertaking given by the state treasurer, were liable for the entire amount, in spite of the fact that under the statute a $250,000 bond only could have been required. 17"The making of this bond joint in form, instead of joint and several, was a mere irregularity, which did not invalidate the instrument." Perkins County v. Miller et al. (1898) 55 Neb. 141, 75 N. W. 577. 18 Board of Directors of La Fayette Parish v. Judice et al. (1887) 39 La. Ann. 896, 2 So. 792. 19 Whitechrust v. Hickey (1825) 3 Martin (La.) N. S. 589, 15 Am. Dec. 167, 170. 20 Sec. 114, supra. 21 State v. McGonigle (1890) 101 Mo. 353, 13 S. W. 758, 8 L. R. A. 735, 20 A. S. R. 609. 22 First National Bank of Humboldt v. Samuelson et al. (1908) 82 Neb. 532, 118 N. W. 81; Treasurer of the State of Vermont v. Mann (1861) 34 Vt. 371, 80 Am. Dec. 688. |