[19] The only authority of any kind cited by the majority opinion in support of its holding is the case of Lowe v. City of Guthrie,4 Okla. 287, 44 P. 198, 200, decided by the Supreme Court of Oklahoma Territory in 1896. Such case does not hold that the bondsmen of a public official are not liable on such bond for the failure of such public official to perform the duties of his office. On the contrary, such case affirms the liability of the bondsmen in such case and merely holds that such liability does not extend to failure to perform acts which are not legally prescribed duties of the officer bonded.
[20] The majority opinion concedes that the bonds here sued on are actually conditioned upon the faithful performance of the duties of the office and that the petition alleges a failure of the officers bonded to perform a duty imposed by law. It then concludes, however, that since the statute requiring county commissioners to furnish a bond does not provide that such bond should be conditioned upon the "faithful performance" of the duties of the office, the insertion of such a condition in the bonds here sued on was in excess of the requirements of the statute requiring such bond and should be treated as surplusage and rejected as such, the case of Lowe v. City of Guthrie, supra, being relied on as authority for such conclusion. The language actually used in the opinion in Lowe v. City of Guthrie, supra, is as follows:
"A statutory bond is one required by some statute. Where a statute required a public officer to execute an official bond, such bond is a statutory bond. The sureties on an official bond contract with reference to the law requiring such bond and regulating the duties of the officer, and the law of the office is, in effect, part of the contract, and has the same effect as though its provisions has been incorporated into the bond itself. The sureties are not bound beyond the strict terms of their engagement, and their liability cannot be extended by implication beyond the terms of their contract. The sureties of Millikan undertook that he should faithfully perform all the duties required to be performed by him as clerk; that is, they became responsible for the faithful discharge of the duties properly appertaining to the office, and the extent of their liability must be determined from the bond itself, from the law in force at the time of the execution of the bond, and the intention of the parties at the time of the delivery of the bond. In the absence of anything appearing to show a different intention in the giving of a statutory bond of a public officer, it will be presumed that the intention of the parties was to execute such a bond as the law required; and, although its terms may bear a broader construction, the liability of the sureties will be confined to the measure of liability as contemplated by the law requiring such bond. A bond which contains the conditions required by statute, and also conditions in excess of those specified by statute, is valid, so far as it imposes obligations authorized by the statute; but the stipulations which are in excess of it may be rejected as surplusage."
[21] It therefore appears to me that the correct statement of the law announced in such case would be that the extent of the liability of the sureties on an official bond must be determined from the bond itself, from the law in force at the time of the execution of the bond and the intention of the parties at the time of the delivery of the bond. It is true that the statute requiring every county commissioner to execute a bond before entering upon the duties of his office does not specify that the condition of such bond shall be the faithful performance of the duties of such office, but neither does such statute prescribe any *Page 977 other condition for such bond. The statute, 19 O.S. 1951, sec. 323 [19-323], reads as follows:
"Every county commissioner before entering upon the duties of his office shall execute a bond in the penal sum of not less than one or more than five thousand dollars, the amount and sufficiency of such bond to be determined by the county judge, and said bond shall be filed and kept in the office of said judge."
[22] Under the holding of the majority opinion, no valid condition of any kind could ever be inserted in the bond of a county commissioner, because, since the statute requiring such bond did not prescribe the condition thereof, any condition placed therein would be in excess of that required by the statute requiring the bond and should be treated as surplusage and rejected as such, and there could never be any liability on the bond of a county commissioner because there could be no valid condition therein and consequently there could never be a breach of condition rendering the surety liable.
[23] The legislature certainly had some purpose in requiring every county commissioner to execute a bond before entering upon the duties of his office, and I think it clear that such purpose was to provide at least some measure of security for the proper performance of the duties of a county commissioner before allowing any such county commissioner to undertake such duties. Such conclusion is supported by the following language found at 43 Am.Jur. 173, Public Officers, sec. 394:
"Public officers are generally required to furnish bonds for the faithful performance of the duties pertaining to their offices, and may be required, also, to renew their bonds. The bond of a public officer is in effect a contract between the officer and the government, binding the officer to discharge the duties of his office, — a collateral security for the faithful performance of those duties, and an obligation binding the sureties to make good the officer's defaults. Official bonds are required not for the benefit of the office holder, but for the protection of the entire citizenship. They must be given as a condition precedent to a proper qualification for office and for the assumption of the responsibility thereof, and the office holder must yield to the mandates of the law requiring the bond."
[24] At 43 Am.Jur. 175, Public Officers, sec. 398, it is said:
"In general, it may be said that the forms of official bonds are substantially the same as to all officers. Although the statute may set forth the forms of the bond required by it, this is not always done. Very often only general directions to give a bond for the faithful performance by the officer of his official duties are contained in the statutes."
[25] And in sec. 401 of the same authority, the following language is found:
"A public officer's duties are defined and specified by law, and although his official bond may recite them there is, at least in the absence of some provision of the law requiring it, no necessity for doing so. A bond requiring the faithful performance of official duty is as binding on the principal and his sureties as if all the statutory duties of the officer were inserted in it."
[26] Even more pertinent is the following language used in the opinion of this court in Smith Engineering Works v. Custer, 194 Okla. 318,151 P.2d 404, 408:
"Under Title 19 O.S. 1941 § 323[19-323], a county commissioner is required to execute a bond, before entering upon the duties of his office, in an amount not to exceed five thousand dollars, the amount and sufficiently of the bond to be determined by the county judge. In compliance with this statute the commissioner executed a bond, the conditions of which obligated the sureties if the commissioner did not faithfully perform all his duties as required by *Page 978 law. A violation of Section 479, above quoted, was unlawful, which makes the commissioner personally liable together with his bondsmen."
[27] The same situation is presented by the case at bar, except that a different statutory duty is alleged to have been violated.
[28] The majority opinion also holds or concludes that the bond required of the county commissioners is for the purpose of protecting the county against losses that might occur from the wrongful acts of the commissioners vested with such important powers with respect to the financial welfare of the county, and infers that the only obligation of the sureties is to protect the county against loss and that only the county could institute an action on such a bond. There is nothing in either the statutes of this state, the previous holdings of this court, or the bonds themselves, which would support such a theory. 12 O.S. 1951, sec. 76 [12-76], provides in substance that when an officer within this state by misconduct or neglect of duty forfeits his bond or renders his sureties liable, any person injured thereby may bring an action thereon in his own name against the officer and his sureties to recover the amount to which he may be entitled by reason of the delinquency. Such statute was held to authorize injured individuals to maintain an action on the official bond of a county commissioner, individually sued in the same action, in the cases of Smith Engineering Works v. Custer, supra, and Standard Surety Casualty Company v. Kelley, 197 Okla. 292, 170 P.2d 251. Such statute was also held to authorize an action by an individual against the bondsmen of a court clerk in Ahsmuhs v. Bowyer, 39 Okla. 376, 135 P. 413, of a State Treasurer in Western Paving Company v. Board of Commissioners of Lincoln County,183 Okla. 281, 81 P.2d 652, of a State Bank Commissioner in Crews v. American Surety Co. of N.Y., 188 Okla. 486, 110 P.2d 1108, and of a Superintendent of The Bureau of Criminal Identification and Investigation in Maryland Casualty Co. v. Alford, C.C.A.10,111 F.2d 388, affirming Alford v. McConnell, D.C., 27 F. Supp. 176, certiorari denied Maryland Casualty Co. v. Alford, 61 S.Ct. 27,311 U.S. 668, 85 L.Ed. 429. It is true that the recoveries against the individual commissioners and their bondsmen in both Smith Engineering Works v. Custer, supra, and Standard Surety Casualty Co. v. Kelley, supra, were based on violations of 62 O.S. 1941, sec. 479 [62-479], which provides, among other things, that any indebtedness contracted or incurred in violation of such statute shall not be a charge against the municipality whose officer or officers contracted, incurred, acknowledged, approved, allowed or authorized or attested the evidence of such indebtedness, but may be collected by civil action from any such official or his bondsmen. But the very existence of such statute, in itself, negatives completely the suggestion in the majority opinion that the sole purpose of the bond required of each county commissioner is to protect the county only, and that only the county could institute an action on such bond. Furthermore, the above cited cases plainly hold that it is the provisions of 12 O.S. 1951, sec. 76 [12-76], above cited, which authorize an individual to bring an action in his own name on the official bond of a county commissioner, and the only purpose and effect of 62 O.S. 1941, sec. 479 [62-479], above cited, insofar as any action or recovery upon a bond is concerned, was to remove from any such action any question as to whether the commissioner was acting by virtue of office or under color of office.
[29] The syllabus in the case of Crews v. American Surety Company of New York, supra, is as follows:
*Page 979 [30] Under 19 O.S. 1951, sec. 323 [19-323], above quoted, a county commissioner is required to execute a bond, before entering upon the duties of his office, in an amount not to exceed $5,000, the amount and sufficiency of the bond to be determined by the County Judge. In compliance with such statute defendant commissioners each executed a bond in the amount of $2,500, the conditions of which obligated the surety if such commissioner did not faithfully perform all his duties as required by law, which bonds were approved by the County Judge. Plaintiff's petition alleges a wilful and wanton failure of defendant commissioners to perform certain duties imposed upon them by law and resulting damage to plaintiff, which in my opinion states a cause of action against both such commissioners personally and their bondsmen. I think the judgment should be reversed and the cause remanded with instructions to overrule the demurrer of the defendant surety companies, and I therefore respectfully dissent."In an action against the State Bank Commissioner and the surety on his official bond conditioned upon the faithful discharge of the duties required of his office by law, a petition alleging facts showing that plaintiffs suffered damage by reason of certain acts of willful misconduct in office on the part of said commissioner in direct violation of his fixed statutory duties, held sufficient as against demurrer of surety."
[31] I am authorized to state that Mr. Justice BLACKBIRD concurs in the views herein expressed.