County of Bay ex rel. Houghtaling v. Brock

Cooley, J.

This is an action upon the official bond of Martin W. Brock, late sheriff of Bay county, brought by Houghtaling and Komeyn, who allege as their injury, the neglect to levy an execution issued to him upon a judgment in their favor, and a false return thereon.

The case in the court below turned upon the validity of the bond, which unfortunately had not been framed in conformity to the statute. The statute requires the bond to be given to the people of the State in the penal sum of ten thousand dollars, with condition that if the principal obligor shall well and faithfully in all things perform and execute his office of sheriff during his continuance in office by virtue of his election, without fraud, deceit or oppression, and pay over all moneys that may come into his hands as sheriff, then the obligation to be void, otherwise of force. Comp. L. § 551. The purpose of the bond is sufficiently indicated by the condition: it is to protect and give indemnity to all persons in whose favor a duty’- may arise, to be performed by the sheriff, and who may be damnified by neglect or failure in performance. The State, or what is equivalent, the people of the State (People v. Love 19 Cal. 676), is made the obligee, as mere naked trustee for those who might become entitled to the protection of the bond, and who of course can never be known at the time the bond is taken, but will be pointed out by such subsequent events as charge the sheriff with a duty in their favor.

The statute of 1846 required this bond to have the approval of the circuit or county judge; hut this was so changed in 1873 as to impose the duty of approval upon the board of supervisors. General Laws, 1873, p. 26; amended, Public Acts 1877, p. 86. The approval is of the bond, and the sufficiency of the sureties thereto (ibid.); and when approved the bond becomes a part of the county records, and is relied upon for their protection by all persons having occasion to employ the sheriff’s services.

The defect in the bond now under consideration is that it names the county of Bay as the nominal trustee, instead of the State. For this reason it is said to be absolutely void, and the parties who have relied upon it as security, who themselves had and could have no voice or influence in shaping or taking it, but who had a right'to suppose that the public authorities charged with a duty in the premises would correctly perform that duty, are now, in consequence of this error, left to suffer the loss of important. rights without redress. It seems at first blush a very small error to have such important consequences; for the obligee named in the bond has no active duty whatever to perform, being neither consulted when the bond is taken, nor afterwards when it is sued, and having in fact no control whatever over it, except as a public officer holds it for safe-keeping.

If the several duties which the sheriff is called upon to perform could only arise because of the statute requiring the giving of the bond, there would be abundant reason for saying that until a bond in conformity with the statute was produced, no recovery could be had. But this statute does not impose the duties; they would be the same if no official bond were required, and a sheriff de facto is charged with them under the same circumstances as is a sheriff de jure. It needs no statute to enable the officer to give a valid bond to perform any such duty; and had Brock executed to Houghtaling and Bomeyn a common law bond conditioned that he would duly levy and return the execution they placed in his hands, there could have been no doubt of its validity. United States v. Tingey 5 Pet. 115; Thompson v. Buckhannon 2 J. J. Marsh. 416; Governor v. Allen 8 Humph. 176; Montville v. Haughton 7 Conn. 543; Commonwealth v. Wolbert 6 Binney 292. And any bond that may voluntarily be given to a party for his benefit will be equally valid if given to another for him. Vamhook v. Barnett 4 Dev. 268. And in the case last cited this principle was applied to the bond' of office of an administrator, which, though given to the county justices when the statute required it to be given to the governor, was held to be a valid common law bond, and available as such to any person in whose favor a cause of action against the administrator might arise. I can see no difficulty in the application of this doctrine to the bond now in suit, except that the damages to which a sheriff may become liable to different persons may indefinitely exceed the penalty of the bond; but it might well be held that recoveries could be had not exceeding the penalty in all. Commonwealth v. Wolbert, supra.

But it seems to me that this bond may be supported on another ground. The taking of the bond is by the board of supervisors, and the approval of the form and security is confided wholly to that body. If they decide to take one the form of which is not what it should be, and it is invalid in consequence, there is and can be no redress whatever for those who may be injured. The duties of the board are guasi judicial, and no action can be predicated upon an erroneous performance. Van Deusen v. Newcomer 40 Mich. 90, 135 ; Raynsford v. Phelps 43 Mich. 342. But the very fact that they are protected in acting upon their judgment, is a reason why the public also should be protected by their judgment. If a mere ministerial officer through his negligence or failure to obey the statute causes damage, he is held responsible for it, and if parties must perforce accept the judgment of a judicial officer or board, they ought to be safe in relying upon it, especially when they can have no opportunity to object .or complain.

Now this guasi judicial board, in taking and approving the official bond of a county officer have decided that it is proper to name the county therein as obligee. In doing so they have not complied with the strict letter of the law, wliicli required a bond to the people of the State. No one questions that the bond taken is equally proper, equally convenient and equally effectual provided the law will admit of its being taken, and I doubt if any good reason can be assigned for requiring the bond to be taken to the people rather than to the county, as the supervisors decided to take it. And my opinion is that while the statute ought to have been obeyed literally, yet that in so far as it names the nominal obligee in the bond, it. is to be regarded as a directory provision merely. The obligee is not named bécause of any interest in the condition, but merely that there may be a promisee and a party in whose name to bring suit; nothing of importance depends upon its being the State rather than the county; the condition is the important requirement, and the naming of an obligee is the merest formality possible, so that if the instrument omitted to name one, as the statute evidently contemplates shall be done in the case of a constable (Comp. L. § -723), the substance of the undertaking would still remain. The approval of the supervisors in the case of a sheriff’s bond, in which all the substantial requirements appear, seems to me conclusive, and I do not think we are at liberty to treat it as void to the prejudice of those who have relied upon it. The sheriff and his sureties have endeavored to give the proper statutory bond ; the supervisors, to whom the law has confided the duty, have given it the statutory approval as proper and sufficient; the public have relied and indeed were compelled to rely upon it; and we are not disposed now to hold that a mere error in matter of form shall disappoint .the reliance and nullify as well the attempt of the parties to bind themselves as that of the proper official board to approve it.

The judgment must be reversed, with costs, and a new trial ordered.

Marston, C. J. and Campbell, J. concurred.