Kansas City ex rel. Ochs v. Minor

ELLISON, J. Paul Minor was duly appointed public impounder for Kansas City, Missouri, with authority to impound cattle, without writ or process, found running at large in such city. He gave bond as such withi defendants as sureties. He afterwards illegally took up and restrained cattle belonging to relator and refused to give them up when demanded, thereby making it necessary for relator to replevin them out of his possession. Relator then brought this action on Minor’s official bond and recovered judgment in the circuit court. The only question presented here relates to the sufficiency of the.petition. It charges that Minor gave bond as required by the' charter and ordinances of Kansas City, conditioned that if he “shall faithfully perform and discharge all of his-duties as public impounder of Kansas City, then this obligation is to be void, otherwise to remain in full force.”. It then charges that said impounder, under the pretense that he was acting within his authority, wrongfully took possession of for the purpose of wrongfully impounding and wrongfully col [620] lecting fees thereon, twenty-two head of cattle belonging to relator under the pretense that said cattle were running at large within the city limits, when in fact they were not running at large. That after wrongfully impounding said cattle he refused to give them up to relator on demand under the false pretense that he had them rightfully in his possession and had a right to detain them until his fees as impounder for their taking and detention were paid to him, whereby relator was forced to bring his action for replevin as above stated. The point made by the sureties is, that since thé bond is only conditioned for the faithful performance of the duties of the office of impounder, and that the petition, on its face, shows that it was not the impounder’s duty to impound said cattle, therefore, there was no breach of the condition. Which point amounts to this: That since it is not the impounder’s duty to impound cattle which are not running at large, the sureties can not he held if he does impound them. The point is clearly unsound. He took»and impounded the cattle as impounder. He took and held them by authority of his office. Were those acts faithful performances of his duty? He acted as impounder, colore offidij, and his acts were either acts of duty, or a violation of duty. If the latter, as they undoubtedly were, they come within the letter of his bond. We have no doubt that the petition stated a good cause of action. State ex rel. v. Edmundson, 71 Mo. App. 172; State ex rel. v. Moore, 19 Mo. 370; Turner v. Sisson, 137 Mass. 191; Thomas v. Connelly, 104 N. C. 342; Nat’l Bank v. Rutledge, 84 Fed. Rep. 400. The judgment is affirmed. All concur.