Opinion
6 Div. 225.
October 23, 1924.
Appeal from Circuit Court, Cullman County; James E. Horton, Jr., Judge.
Brown Griffith, of Cullman, for appellant.
It was error to exclude the bond offered in evidence by plaintiff. 5 Words and Phrases, 4400; 26 Cyc. 926; 31 Cyc. 902; 21 R. C. L. 973; Code 1907, § 1171; Michael v. State, 163 Ala. 425, 50 So. 929; Somerville v. Wood, 129 Ala. 369, 30 So. 280; Allen v. State, 181 Ala. 386, 61 So. 912. The person injured is the proper party to sue on the bond. Somerville v. Wood, supra.
F. E. St. John, of Cullman, for appellees.
The bond was properly excluded. Code 1907, §§ 1192, 1486.
Cities and towns may by ordinance provide for such officers as are deemed needful or proper for the good government thereof, fix their compensation and terms of office, prescribe their duties, powers, and liabilities, and "require them to give bond in such sum and to be conditioned and approved as the council may prescribe." Code 1907, § 1171.
This power to require bond applies to all the officers to be provided by the council. Section 1189, Code of 1907, is a mandatory statute requiring bonds of officers and employees handling money or property of the municipality. It does not limit the general power conferred by section 1171. Section 1171, amplified by section 1192, authorizes the creation of a police force under such name as may be desired, and is not limited to one under the general supervision of a chief of police as authorized under subdivision 10, § 1192.
Bonds of municipal officers are subject to the general provisions of sections 1500 and 1501, Code of 1907, defining the legal effect and conditions of bonds of all public officers. Ex parte Martin, 180 Ala. 620, 61 So. 905; Michael v. State ex rel. Welch, 163 Ala. 425, 50 So. 929; Montgomery v. State ex rel. Enslen, 107 Ala. 372, 18 So. 157.
Under section 1501, all official bonds, "whether correct or incorrect in its recitals as to the term of office or otherwise, * * * or whether approved by the proper officer or not approved by any, or if irregular in any other respect, * * * if delivered as the official bond of the officer, and serving as such, shall be obligatory on every one who subscribed it for the purpose of making the official bond of such officer," etc.
Neither the variance between the condition named in the bond and in the ordinance, nor the approval by the mayor instead of the board, can invalidate the bond.
Does the fact that the bond was made as that of a "police officer," instead of "marshal," render the bond void?
"The city marshal of a municipality is the chief police officer thereof, clothed with authority to apprehend offenders against its ordinances, etc., and occupying the same relation to the governmental affairs of the municipality as a sheriff does to his county, or a constable to his town." 28 Cyc. p. 486 (VII); 26 Cyc. p. 926; 5 Words and Phrases (First Series) p. 4400.
A marshal, as usually known and understood in Alabama, and as presumed to have been intended in the ordinance of Cullman, is a police officer. The giving and acceptance of the bond, and performance of the duties of office, evidence an intent to make a lawful bond for the faithful performance of duties of a lawful office under the ordinances of the town.
The broad terms of section 1501 of the Code, intended for the protection of the public, are sufficient to cure any defect or variance between the name of the office as stated in the bond and in the ordinance here shown.
Whether a surety would be bound for any breach not under color of the performance of police duties, we need not determine. The bond should have been admitted in evidence, and its refusal was error.
The action was properly brought in the name of the injured party, and there was no error in refusing the proposed amendment.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.