
    Drolesbaugh v. Hill et al.
    
      Sureties on officer’s bond — Liable where under, color of office— H<e uses unnecessary force and violence.
    
    The sureties on the bond of an officer, conditioned for the faithful discharge of his duties, are liable thereon to the party injured, where under color of his office in making an arrest with or without warrant, and without probable cause, he uses more force and violence than is necessary.
    (Decided March 12, 1901.)
    Error to the Circuit Court of Crawford county.
    
      Finley & Gallinger and Anson Wickham, for plaintiff in error.
    We contend that this court and other courts have held under like circumstances that the sureties on the bond are liable. State v. Blake, 2 Ohio St., 147.
    We think this exact question was settled by this court in the case of Riley et al. v. Walker, decided in 1899, found in 42 Bull., 275; 60 Ohio St., 626; among the unreported cases.
    
      In that case a constable armed with a search warrant for the house of one David Walker, entered the premises and there assaulted one Nancy A. Walker. She brought suit upon the official bond of the constable, and the sureties made the same contention in that case that the sureties make in this, viz., that the assault and battery, being no part of the duties of his office, the sureties were not liable — the officer being a trespasser as to Nancy A. Walker. The common pleas court sustained a demurrer to the petition. The circuit court reversed the common pleas, and the Supreme Court on June 6, 1899, affirmed the circuit court.
    Whatever distinctions other courts may make between acts done by an officer “by virtue of his office” and acts done “under color of his office” otherwise called colore officii, the Supreme Court of this state seems to draw no distinction, as will be observed in the 3d syllabus of the case just quoted, where the term “colore officii” is used, and especially in the case of Ohio v. Jennings, 4 Ohio St., 418, where this court held that a seizure of goods of A under color of process against B is official misconduct for which the sureties are liable, on the ground that the trespass of the officer “is not the act of a mere individual, but is- perpetrated colore officii
    
    The duties of the city marshal are ministerial, and where he performs his ministerial duties improperly, his sureties are liable. Rev. Stat., 7129, 1847-8-9; Truesdell v. Combs, 33 Ohio St., 186; Reinhard v. City, 49 Ohio St., 257; Clancy v. Kenworthy, 74 Iowa, 740; Tieman v. Haw, 49 Iowa, 312; Commonwealth v. Cole, 7 B. Mon., 250; State v. Hays, 30 W. Va., 107; Central Law Journal, 477.
    
      
      Harris cG Sears, for defendants in error.-
    It is an elementary principle of law, so well established as to scarcely require the citation of authorities to support it, that the liability of sureties is strict issi mi juris, and cannot be extended by implication beyond the scope of their engagements, or the reasonably necessary import of the language of their bond. This rule, is, in its general terms at least, so well, settled that it may be regarded as axiomatic. Murfree on Official Bonds, Sec. 710; McGovney v. State, 20 Ohio, 93.
    It follows, then, that the sureties can rely on the strict wording of their bond, and plaintiff, to hold them liable, must make allegations clearly showing a breach of the condition of such bond, otherwise, his petition, as against the sureties, is demurrable.
    The sureties simply undertook, when they signed Hill’s bond, that Hill should faithfully perform his duties as marshal of the city of Bucyrus. They did not undertake to be responsible for any violation of the law of the state of Ohio, which Mr. Hill as an individual might commit, unless such act or violation of law, on the part of Hill, amounted to an unfaithful performance of his official duty. It then becomes pertinent for us to consider what are the official duties of the marshal of Bucyrus. We find them defined in the laws of Ohio, sections 1847-1854, inclusive.
    Section 7129 of the Revised Statutes authorizes a marshal to arrest anyone found violating the law of the state or ordinance of the city or village, until a legal warrant can be obtained; this is what we commonly understand to be arresting on view.
    If the marshal committed the grievances complained of in the amended petition, he is liable for his trespass, in tort, the same as any other individual. The sureties on his bond did not undertake to make themselves liable for an assault and battery which Hill might commit while he was marshal, any more than they would be liable if he should rob a hen-roost, or run away with another man’s wife; and an averment in a petition, charging that he stole sheep, by virtue of his office, would be no more meaningless, than the allegation in the petition that he committed an assault by virtue of his office; for the simple reason, that the duties imposed upon him by law, and which his bond guarantees that he will faithfully perform, include none of the offenses or trespasses mentioned.
    The averments of the amended petition, place Hill upon the same level and footing of any individual trespasser, and the facts alleged, are sufficient to have warranted Drolesbaugh in resisting arrest and defending himself, if necessary, to the extent of disabling or killing his assailant. Murfree on Official Bonds, Secs. 459 and 781; 33 N. C., 151, cited in 21 L. R. A., 738; 72 N. C., 110; 37 Ill. App., 490; Jewell v. Mills, 3 Bush, 67.
    The court will note that plaintiff in his amended petition avers that the acts complained of, committed by Hill, with the exception of the alleged assault in the city prison, were done by Hill the marshal by virtue of his office of marshal; and counsel for plaintiff in error, in their brief, not only seek to exclude the idea that the trespass complained of was committed by the marshal, merely under color of his office, and not by virtue of his office; but they even attempt to argue that the Supreme Court of Ohio in the case of Ohio v. Jennings, 4 Ohio St., 418, and also in the case of Riley v. Walker, decided by this court without report, but reported by somebody in volume 42 W. L. B., 275; 60 Ohio St., 626, either abrogate or disregard the established rule, that for acts done by an officer colore officii, his sureties are not liable. That the rule is what we have stated the following authorities will show: Brandt on Suretyship, Sec. 566; 37 Wis., 43; 8 Neb., 344; 3 Bush. Ky., 62; Throop on Public Officials, Sec. 238; 10 Mass., 309; 13 Mo., 437; 8 Tenn; 21 Wis. 684; 9 Mo., 63.
    We think the present case especially on the facts is distinguishable from the case of Ohio v. Jennings, 4 Ohio St., 418, 423, cited by counsel for plaintiff in error. We do not think that Judge Thurman in deciding that case used the term colore officii in its technical or legal* significance, as contra distinguished from virtute officii; the particular fact being considered and discussed by the court, was, that an official under color of a process against B has seized the goods of A, and it was merely owing to the fact that the trespass had been so committed under color of a legal process, which the offender actually had and held, that the court denominated his act colore officii. In reality, when considered in the light of the well defined meaning of the terms colore officii and virtute officii, it is quite apparent that the act of the constable in Jennings v. State was legally and technically virtute officii.
    
    The principle controlling in Ohio v. Jennings, supra, is well illustrated in the case of People v. Scuyler, 4 N. Y. P., 173; Seeley v. Birdsall, 15 Johns., 267; Allcock v. Andrews, 3 Esp., 540n.
    See also the distinction defined in Wilfield’s Adjudged Words and Phrases, page 632; Murfree on Official Bonds, Sec. 698 and 699; Brandt on Surety-ship, Sec. 566.
   Minshall, C. J.

The action below was a suit against Hill, the city marshal of Bucyrus, and his sureties on his bond. To the petition as amended the court sustained a demurrer, and’ rendered judgment for the defendants. The judgment was affirmed on error, by the circuit court, and the ruling is brought here for review.

The petition alleges the election of Hill as marshal of the city of Bucyrus, and his qualification by giving bond in the sum of $1,000, as required by law, with Charles Clark, J. B. Morgan, and W. M. Reid his sureties thereon; conditioned that “if the said Charles E. Hill as such marshal of said city shall faithfully perform the duties of his said office, then this Obligation shall be void, and otherwise to remain in full force and virtue;” and then assigns as a breach of the bond:

“That the said Charles E. Hill, as marshal of said city of Bucyrus, on the 27th day of March, 1897, in his official capacity of marshal aforesaid, and by virtue of his said office of marshal, did unlawfully and without reasonable or probable cause, and without warrant or any process of any court, arrest this plaintiff upon the streets of said city .in the presence of divers and sundry good people, and then and there by virtue of his said office of marshal, did forcibly and unlawfully drag the plaintiff along and over the streets of said city to the jail or lockup of said city, in the .presence of divers and sundry good people, and did then and there in his official capacity of marshal, and by virtue of his said office, unlawfully, without warrant or any process of any court, incarcerate the plaintiff in said jail or lockup of said city, and then and there by virtue of his said office of marshal aforesaid, did unlawfully imprison the plaintiff in said lockup or jail for the period of about two hours; and plaintiff says that said Charles E. Hill, while unlawfully having this plaintiff in his custody as aforesaid, did then and there in the presence of divers persons, unlawfully pinch plaintiff’s arm thereby bruising and wounding the same and causing plaintiff great pain, and did beat, wound and bruise plaintiff by striking him with his fist in plaintiff’s face, cutting and lacerating plaintiff’s lips and knocking one of his teeth loose, and did then and there unlawfully demand and receive of plaintiff the sum of five dollars for releasing plaintiff from said unlawful imprisonment,” and asks judgment for $1,000.

The question then presented is, whether the averments of the petition show a breach of the condition of the bond.

The contention of the defendant in error is, that it simply shows the commission of an assault and battery on the plaintiff, for which the defendant is liable in his capacity as an individual, and not in his capacity as an officer; or that the averments show that he simply acted under the color of his office and not in virtue of it. Some such distinction has been taken in some of the cases, but it is not generally followed, as it is of little practicable application. In Story v. Jennings, 4 Ohio St., 418, where a constable under a writ of replevin against B took the property of A it was held that the sureties on his official bond were liable. Thurman, J., delivering the opinion, says: “The authorities seem quite conclusive, that a seizure of the goods of A under color of process against B is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond, where that is, that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of. a mere individual, but is perpetrated colore officiiHe cites many cases in support of the holding, and among others, that of The People v. Schuyler, 4 Com., 173. That such is the generally received doctrine, see Brandt on Surety-ship, Sec. 566; Throop, Public Officers, Secs. 240, 241; Lowell v. Parker, 10 Met., 309, 313; Lammon v. Feusier, 111 U. S., 17, 22; Murfree, Official Bonds, Sec, 303.

It is not difficult to distinguish between an act done by an officer in his capacity as an individual, and one done in his capacity as an officer; for the former his sureties are not liable in any case, for the latter they generally are when the act is wrongful and results in injury to another. Constables and marshals are clothed with very considerable power over the citizen. They may without a warrant make an arrest on view for an offense committed in their presence, as well as on a warrant. The peace and good order of society, requires that they should have such powers; but the protection of the individual requires that the same should be exercised in a reasonable and prudent manner; and to secure this, a bond with sureties is exacted for the faithful discharge of their duties. An officer in making an arrest has the right to use such force as may be necessary to overcome any resistance to the execution of his office, offered by the person to be arrested; but he must use no more force or violence than is reasonably necessary for the purpose; and if he does he makes himself and his sureties liable upon his bond to the party injured. The averments of the petition are quite specific. It is averred that by virtue of his office, the marshal unlawfully arrested the plaintiff, struck, bruised and ill-treated him, dragged him through the streets, confined him in the jail and exacted five dollars for his release. It is true that it is averred that this was done without any warrant or probable cause. It does not follow from this that it was not done in his capacity as marshal. If he had no warrant, he had the right to arrest upon view of what he deemed an offense. The fact that it is averred that he acted by virtue of his office precludes the idea that he acted as an individual and of his own wrong. From the petition it appears that what he did, he did as an officer and not as an individual, and the averments of the petition are consistent with such having-been the fact. He may have made the arrest upon view, and have used no more force than was necessary. If such is the case, he and his sureties may defend themselves by setting up the facts in an answer. The petition therefore makes a case.

In the case of Clancy v. Kenworthy, 74 Iowa, 740, the facts were much the same as in this case, and the same argument was made against the sufficiency of the petition. In answer to the argument the court said:

“If in exercising the functions of his office, defendant is- not liable for acts because they are illegal or forbidden by law, and for that reason are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of oppression result in trespasses or wrongs. For lawful acts in the discharge of his duty he of course is not liable. It follows that if defendant’s position be sound, no action can be maintained on the bond in any case.”

It would seem that the public have as much interest, if not more, in the duty of an officer not to color-ably exercise the powers with which he is clothed, as not to use unnecessary violence, where he is- otherwise clearly within the duties of his office. It is by virtue of the office he holds that he may exercise its duties to the injury of another. It is not probable that any individual, not an officer, would have attempted to do what the marshal is charged with doing.

Our attention is called to the case of Carpenter v. Sloane, 20 Ohio, 327, as practically determining this one. A clerk and his sureties were sued on his official bond, for having issued letters to a guardian without having taken a bond. The court held that he was not liable on his bond for the reason that it was not his official duty to see that a bond had been given. Manifestly the case has no application here.

However the law may be in some of the other states, in this, and many of the others, where an officer acting under color of his official duties, commits a wrong to the injury of another, he, with his sureties, is liable on his bond to the party injured. The wrongful making of an arrest by an officer colore officii is an unfaithful discharge of his duties, and therefore a breach of his bond.

17udgment reversed and cause remanded for further proceedings.

Si-iauck, Davis, Spear, Burket and Williams, JJ.', concur.  