Jeffreys v. Malone

BBICKELL, C. J. The record presents a single question : Whether the sureties on the official bond of the judge of probate, are liable for the penalty to which the judge is subject, if he issue a license for the mar [492] riage of a minor, without the consent of the parent or guardian. — Code, § 2318. Under the statutes existing prior to the creation of the court of probate, the duty of issuing marriage licenses was devolved on the clerk of the orphans’ or county court, as it was almost indifferently termed, the predecessor in jurisdiction of the court of probate. The statutes imposed on the clerk a penalty of five hundred dollars, recoverable by action of debt, one half for the use of the State, and the other half for the use of the party suing, if he issued a-license for the marriage of an .infant, without the consent of the parent or guardian. — Clay’s Dig. 373, § 5. In Brooks v. Governor, 17 Ala. 806, under the precise state of facts averred in the complaint, it was decided that the sureties of the clerk were not liable for the statutory penalty, whether the act of the clerk was tobe deemed malfeasance, non-feasance, or misfeasance in the performance of official duty. The reason of the decision was, that the act of the clerk was not productive of legal damage or injury; and for the act, the statute did not in terms fix liability on the sureties. An examination of the statutes will show that wherever it is intended to subject the sureties on official bonds to liability for mere penalties imposed on the principal for a dereliction of official duty, the legislative intent is expressed clearly. Numerous examples of such statutes will be found in Chapter 2, Part 3, Title 3, of the Code. As was said in the Brooks’ Case, the statute giving the penalty against the judge alone, the courts cannot by construction, implication, or intendment, extend it so as to fix a liability on the sureties. In Murfree on Official Bonds, § 654, it is properly stated as the general rule of the common law, “that the obligation of a surety for the due discharge of his official duties by his principal, is that the surety will assume the damage that may result from a breach of the bond ; it is not that the principal will respond to such fines and penalties for his misconconduct, as may be prescribed by law, and awarded by judicial authority. The fine and penalty are punishment for neglect of duty, and may be imposed or incurred , irrespective of actual damage or loss suffered by any one.” Without regard to the inquiry, whether any loss or damage accrues to the parent, or the guardian, or the minor, and without considering whether the bet [493] ter interests of the minor may not be advanced by the intended marriage, the statute subjects the judge to the payment of a fixed sum. The sum is a penalty, and is imposed as a punishment for the non-observance of official duty. There is in it no element of compensation to the minor, or to the parent, or to the guardian, for loss or injury sustained. The rulings of the circuit court are free from error, and the judgment must be affirmed.