City of Woodland v. Leech

BURNETT, J.

The appeal is from the judgment on the judgment-roll. The defendant Leech was not served and did not appear at the trial. He was elected marshal of the city of Woodland, a municipal corporation of the fifth class, and the respondents signed his official bond containing the following condition: “Now, therefore, the condition of this obligation is such, that if the said S. A. Leech shall well and faithfully perform all official duties now required of him by law, and shall well and faithfully execute and perform all the duties of marshal and

ex officio

superintendent of streets required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect, otherwise to remain in full force and virtue.” The action grew out of the fact that said Leech, while acting as marshal, collected quite a sum of money, representing a license-tax, and appropriated the same to his own use. The court found that the money collected by him was not by virtue of his office as marshal or

ex officio

superintendent of streets and that as such marshal he was not authorized or employed to collect any license in the city of Woodland; nor was it the duty or right of said Leech to collect such licenses but that, by virtue of an ordinance duly passed by the board of trustees of said city, it was the duty of the city treasurer to collect all licenses in the city of Woodland. The sureties were therefore exonerated from liability since their obligation contemplated and embraced only the faithful discharge of

official dvffy

on the part of their principal.

It is not disputed—indeed, it is conceded—that the sureties have a right to stand upon the strict letter of their bond and that the only question involved in the case is whether, under the law, it was the duty of the marshal to collect said license-tax. This is to be determined by the construction of sections 751 and 790 of the Municipal Corporation Bill. The former, as amended in 1901, after designating the officers in

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whom the government of a city of the fifth class shall be vested, contains this provision: “provided, that the board of trustees may, in its discretion, by an ordinance adopted, published and recorded as required for general ordinances, at least thirty days before a general city election, at which city officers are to be elected, unite and consolidate certain offices by declaring ... 3. The city treasurer elected shall be