Martin v. Borgman

The opinion of the court was delivered by Horton, C. J.: The plaintiff in error brought her action against the said John Borgman, a justice of the peace, and the other defendants, the sureties on his official bond, for alleged illegal proceedings of a special constable appointed by said justice. The defendants in error demurred to the petition, which demurrer was sustained, and plaintiff in error excepted, and brings the ruling here for review. It is claimed by counsel that as the bond is conditioned that the obligors only “agree to pay on demand to each and every person who may be entitled thereto all such sums of money as the said justice may become liable to pay, on account of any moneys which may come into his hands by virtue of his office,” that no action can be maintained thereon for the wrongful acts of a special constable, and especially that the sureties are not liable beyond the letter thereof. Section 19, ch.110, Gen. Stat., 1085, prescribes the form and condition of a justice’s bond, and the bond in question conforms to that statute. Section 174, ch. 81, Gen. Stat., 812, provides: “Such justice shall stand as surety, and shall be in that character liable, he and his sureties, for any neglect of duty or any illegal proceedings on the part of such constable so by him appointed.” These acts in pari materia, and relating to the same subject, are to be taken together. To properly construe them, we must ascertain and carry into effect the intention of the legislature. It was certainly the purpose of the law-makers, th^t having provided for the appointment of special constables by justices of the peace, the justice making such appointment and his sureties should be liable for his neglect of duty and illegal proceedings. Had the provisions of §174 been inserted in the undertaking at its execution, it would be readily conceded that the justice and his sureties would be liable. As both of these acts were in force at its execution, and as the obligors were bound to know the law, they signed the undertaking with'the knowledge that they were bound not only by the written words of the instrument, but also by the terms of. §174, to which the bond was extended. It is the same as if the words of § 174 were written therein before the signing. In other words, the law interpolated in the bond the terms of said §174; and when the defendants in error executed the bond, they thereby bound themselves to answer for the illegal acts of any special constable appointed by the justices, as completely as if the letter of the bond had contained an express condition to that effect. Counsel further contends that' §174 is void, on the ground that the subject of appointing special constables, and making the justice and his sureties responsible for their acts, are not properly connected with the subject expressed in the title of ch. 81. We think otherwise. The title of the act is very comprehensive, and the subject of all its sections is included in the title, “An act regulating the jurisdiction and procedure before justices of the peace in civil cases.” The judgment of the district court therefore must be reversed, and the cause remanded with instructions to overrule the demurrer of defendants in error. All the Justices concurring.