City of Milwaukee v. United States Fidelity & Guaranty Co.

Winslow, O. J.

The appellant makes two general contentions: (1) that there can be no liability on the bond for nny moneys which came into Woller’s hands as clerk of the district court, because the bond only covers his acts as clerk •of the municipal court; (2) that no moneys’ other than those •due the city of Milwaukee can be recovered in any event.

1. The first contention must he overruled. Had Woller held two separate offices, for each of which he was required to give bond, or had he been required by law to give a separate ’bond to cover his duties as clerk of the district court, doubtless the bond in suit could not be held to cover a-breach in the last named duties. Milwaukee Co. v. Ehlers, 45 Wis. 281 ; People v. Edwards, 9 Cal. 286 ; People v. Gardner, 55 Cal. 304 ; Cooper v. People, 85 Ill. 417 . If, on the other hand, the effect of the provisions in the district court act is simply to impose some additional duties on the' clerk of the municipal •court, his bondsmen as such last named clerk are liable on his bond for his nonperformance of those duties, because they were a part of the duties of his office as clerk of the municipal •court. Van Valkenbergh v. Paterson, 47 N. J. Law, 146; Tieman v. Haw, 49 Iowa, 312 ; State v. Matthews, 57 Miss. 1 ; Clay Co. v. Simonson, 1 Dak. 387 . It is very clear to us from examination of the district court act that it was not intended thereby to create two offices, but simply to add duties 'to the office of the clerk of the municipal court. The clause expressly providing that he shall receive no fees for the per--formanee of these new duties and the absence of any requirement of an additional bond or oath of office are very signifi *608 cant in this connection, as well as the fact that the new court was in fact a court created to relieve the municipal court of its lesser business, and thus the clerk of the municipal court was simply required to perform a part of his former duties in a separate tribunal and not really to assume any additional duties.

2. In support of the second contention a number of arguments are advanced. It is said in the first place that the bond by its terms is only a bond indemnifying the city of Milwaukee from damage; and that as the city is not required to pay over any of the moneys belonging to the county or other' persons until its treasurer has received the same, it can have' suffered no damage except from the failure to pay over the moneys which belong in the city treasury, namely, the penalties and clerk’s fees in city prosecutions in the district court,, amounting to $4,431.15.

This argument seems to ignore entirely the very first condition of the bond, which is that Woller “shall wpll and faithfully in all things execute and discharge the duties” of his-office “without any fraud, neglect or omission.” After this clause follows in the conjunctive the condition to indemnify the city against damage from his acts or neglect. As one of’ his statutory duties was to pay over to the city treasurer all the moneys with which he is charged by the judgment, whether belonging to the city, the county, or to witnesses, it seems certain that the bond by its terms covers all the clerk’s-duties and not alone mere indemnity to the city against money loss suffered by it.

But it is urged that the bond is not conditioned as the statute requires and hence is not an official bond but only a voluntary bond. Erom this premise it is further urged that, even admitting that recovery might be had by the city upon an official bond for sums due to others than the city itself, because-such a bond would be helped out by the statute, still a mere- *609 voluntary bond, like the present, can receive no such help and can only protect the city itself from loss.

It is true that the bond in suit differs in verbiage from the bond required by the statute. The bond in suit is conditioned for the due performance of all the duties of the clerk, one of which duties is to pay over to the city treasury all sums due to the city, as well as the sums due to the county and to witnesses. The condition of the bond required by the statute is only that he pay to the city treasurer the sums last mentioned. The bond actually given covers all the clerk’s duties; the bond required by statute covers but one. The difficulty with, the bond given is, therefore, not that it does not cover what the statute requires, but that it covers what the statute requires and more. Does this deprive it of its character as a statutory bond so far as it embodies statutory conditions ? In reason and in justice we think not, when there is no claim that the excessive conditions of the bond were inserted under duress. The surplusage will be rejected and the bond sustained as to the statutory conditions which it includes.

This subject is quite fully treated and the authorities supporting the conclusion we now reach are cited in State v. Purcell, 31 W. Va. 44 , 5 S. E. 301 . See, also, to the same effect, 2 Brandt, Suretyship & G. (3d ed.) § 617; Murfree, Official Bonds, § 61.

Being an official and statutory bond to the extent that it includes statutory conditions, the liability so far as such conditions are concerned is to be construed and enforced with the aid and in the light of all the statutory provisions bearing thereon. The statute which made it the- clerk’s duty to pay over all the moneys in question into the city treasury, regardless of the question of their ultimate disposal, provided that the bond to secure the performance of this duty should be executed. and delivered to the city, thus expressly constituting the city as the obligee and necessarily the proper party to maintain an *610 action on the bond for breach of any of its conditions. While the Code requires that actions shall he brought in the name of the real party in interest (sec. 2605, Stats. 1898), the present case is unquestionably brought by the statute within the provisions of sec. 2607, which authorizes the trustee of an express trust or a person expressly authorized by statute to sue without joining with him the person for whose benefit the action is brought. State v. Wettstein, 64 Wis. 234 , 25 N. W. 34 .

Einally it is said that there could be no recovery for forfeited bail money in state cases in the municipal court, because by sec. 4816, Stats. (1898), such moneys are required to be paid into the county treasury. The answer to this proposition is that by ch. 36 of the Laws of 1897, being an act applying specially to the municipal court of Milwaukee county, the clerk of the municipal court is required to pay such forfeited bail moneys to the city treasurer. See. 4816, above referred to, first appeared in the Revised Statutes of 1878, and was simply re-enacted without change in the Statutes of 1898. Such re-enactment worked no change in the existing law, but simply continued the situation as it was before. Glentz v. State, 38 Wis. 549 ; State ex rel. Ohlenforst v. Beck, 139 Wis. 37 , 119 N. W. 300 . The Milwaukee municipal court had been excepted from the provisions of sec. 4816 when that section was re-enacted in 1898, and remained excepted notwithstanding the re-enactment.

By the Court. — Judgment affirmed.