See, for example, Title 15, ยง 201, Code of Alabama, 1940, Recompiled 1958, 1967 Cumulative Pocket Part, (bail bondsmen); Title 53, ยง 29(c), Code of Alabama, 1940, Recompiled 1958, 1967 Cumulative Pocket Part, (securities dealers). Lumbermen's, on the other hand, argues that the judgment of the district court is supported by the Oklahoma decision in Western Surety Company v. Childers, Sup.Ct., 1962, 372 P.2d 214, a case nearly identical on its facts. The real estate statute in Oklahoma contained the same bond requirement language as the Alabama statute and the court concluded that a bond issued under that statute and in terms similar to the bond here, constituted a single penalty bond rather than a multiple payment or an open-end bond.
pp. 390, 391 See: Bill Curphy Company v. Elliott et al., 207 F.2d 103 (C.A.5, 1953); Witter et al. v. Massachusetts Bonding and Ins. Co. et al., 215 Iowa 1322, 247 N.W. 831; Western Surety Company v. Childress, 372 P.2d 214 (Okla. 1962); Brown v. National Surety Corporation of New York, 207 S.C. 462, 36 S.E.2d 588 (1946); Coast Surety Corporation v. White et al., 14 Cal.App.2d 35, 57 P.2d 951 (1936); Fidelity and Deposit Company of Maryland v. Sholtz, Governor, for use of Duval County, 123 Fla. 837, 168 So. 25 (1935); Albie et al. v. Jones et al., 82 Ark. 414, 102 S.W. 222. A contract will be construed so as to impose on the surety only such obligations as clearly come within its terms.
One who chooses to stand as a guarantor of an obligation defined by law may not be allowed to guarantee less than the full extent of the statutorily-imposed liability. See Western Surety Company v. Childers, Okla., 372 P.2d 214, 216 [1962] involving a statutory bond. See also Town of Skiatook v. Brummett, Okla., 387 P.2d 115, 118 [1963] and Allied Reserve Life Insurance Company v. Cragg, Okla., 360 P.2d 707, 708 [1961], cert. denied, 368 U.S. 831, 82 S.Ct. 53, 7 L.Ed.2d 33 [1961].
Although a surety may not be held beyond the express terms of his contract, 18 O.S. 1971 ยง 483[ 18-483] instructs us to ignore the common law rule of strictissimi juris applied to gratuitous contracts of surety and liberally construe the obligations of a contract of a compensated surety "for hire." Statements in Western Surety Company v. Childers, 372 P.2d 214 (Okla. 1962) and cases therein cited seemingly stating otherwise are hereby disapproved. 15 O.S. 1971 ยง 373[ 15-373].
We have held that occupation regulations of that character are beyond the scope of legislative power. Western Surety Co. v. Childers, Okla., 372 P.2d 214, Taylor v. State, ex rel. Rutherford, Okla., 291 P.2d 1033. Semke attacks the provision of the Act requiring a dealer, in order to come within its definition of a "Motor Vehicle Dealer", to have a dealer's franchise from a manufacturer or distributor of new or unused vehicles (Sec. 562(a), Tit. 47, supra). He contends, in substance, that this provision, when considered with another provision of the Act making it a misdemeanor to engage in business as a motor vehicle dealer, or salesman, without having the State license required by the Act (Sec. 564, Tit. 47, supra), renders the Act unconstitutional.
We have recognized interpleader as an equitable action to be conducted in a court of equity. Western Surety Company v. Childers et al., Okla., 372 P.2d 214 (Syllabus); Bank of Earlsboro v. J.E. Crosbie, Inc., 182 Okla. 327, 77 P.2d 547; See also Burchfield v. Bevans, 242 F.2d 239 (10th Cir.); 4 Pomeroy, Equity Jurisprudence, Sec. 1321.
Where a bond is given to protect individual members of the public who deal with the principal, and claims are asserted against the surety in excess of the penalty on the bond, the total penalty should be prorated among the claimants. Western Surety Co. v. Childers, 372 P.2d 214 (Okla. 1962) (overruled on other grounds by Barbero v. Equitable Gen. Ins. Co., 607 P.2d 670, 673 (Okla. 1980)).
"[W]here a bond is given to protect the individual members of the public who deal with the principal on the bond from injury caused by his fraud or negligence, and the extent of the surety's liability is limited to certain amount, when claims are made to the surety in excess of the amount of the penalty the total amount of the penalty should be prorated among the persons so damaged." ( New Amsterdam Casualty Co. et al. v. Hyde (1934) 148 Or. 229 [ 34 P.2d 930, 934]; see Fidelity Deposit Co. v. Stephenson (1938) 26 Cal.App.2d 241, 244-245 [ 79 P.2d 115]; Western Surety Company v. Childers (Okla. 1962) 372 P.2d 214, 218, overruled on other grounds in Barbero v. Equitable Gen. Ins. Co. (Okla. 1980) 607 P.2d 670; Connors, Cal. Surety Fidelity Bond Practice (Cont.Ed.Bar 1969) ยง 28.15, p. 393, hereafter cited as Connors.) "The surety may go into a court of equity and have all claimants interpleaded, and have the court prorate the fund upon the the claims established."
In Maryland Casualty Company v. Alford, 111 F.2d 388, the court stated: "Under the great weight of authority a surety liability is limited by the penal sum named in the bond, even though different individuals assert claims based upon distinct wrongful acts of the principle." A recent case of Western Surety Company v. Childers, 372 P.2d 214 (1962), restates the general rule by stating: "It is a well-established rule of law that a surety or bondsman may only be held for the amounts stipulated in the bond." In this particular case the surety company contented that the trial court was in error in finding that each claimant was entitled to recover up to one thousand dollars where the statute required a surety bond in the sum of one thousand dollars.