Reset A A Font size: Print

District Court of Appeal, Second District, Division 1, California.



Civ. 11021.

Decided: January 27, 1937

A. I. McCormick and Guy Richards Crump, both of Los Angeles, for appellant. Everett W. Mattoon, Co. Counsel, S. V. O. Prichard, Deputy Co. Counsel, Hill, Morgan & Bledsoe, and Kenneth K. Wright, all of Los Angeles, for respondent L. E. Lampton. Joe Crider, Jr., and A. F. Mack, both of Los Angeles, for respondent Fidelity & Deposit Co. of Maryland.

The plaintiff in intervention has suffered a wrong; he has not received $10,000 which should have been turned over to him. The trial court determined that the wrong may not be remedied by a judgment against either the defendant Lampton, Los Angeles county clerk and ex officio clerk of the Los Angeles county superior court, or the surety on his bond, a conclusion with which we agree.

During the trial of a criminal case in the Los Angeles county superior court, seventy–five $1,000 bills were introduced in evidence. The deputy clerk of the trial department received and marked the bills as exhibits in the case and thereafter, when the occasion for their presence as exhibits had passed, placed them in the hands of the chief deputy in defendant Lampton's office. For some time the practice had been followed, under defendant Lampton's direction, of having all exhibits worth more than $100 placed in a safe deposit box in a bank, the keys to which were intrusted to defendant Lampton's chief deputy to whom, under the division of office duties, had been delegated responsibility for safeguarding exhibits. The chief deputy placed the seventy–five $1,000 bills in the safe deposit box, then withdrew them and used them for his own purposes, with the result that they were not available when the plaintiff in intervention presented his claim for ten of them. On these facts plaintiff in intervention sought judgment for $10,000 against Lampton and the surety on his official bond. The trial court's entry of judgment for the defendants was followed by this appeal, taken by the plaintiff in intervention.

Whatever destination we might have reached had the routes to be followed not already been plainly marked, in view of the blazed trails, but one conclusion seemed possible for us. First of all, it is established in this state that the official bond given by the holder of one office does not cover dereliction of duty of a separate office held ex officio. The principle was expressed first in People v. Edwards (1858) 9 Cal. 286, probably by way of dictum. In People v. Ross (1869) 38 Cal. 76, however, recovery on the official bond of the sheriff, ex officio tax collector, was denied where recovery was sought because of defalcations in the office of tax collector, the court saying: “The offices of Sheriff and Tax Collector of Kern County, though held by the same person, are nevertheless, separate and distinct offices. * * * In the absence of any statute expressly providing that one official bond only shall be required of a person who holds both offices, and that such bond shall be for the faithful performance of the duties of both offices, a separate bond for each office is as much required as if they were held by different persons.” Applying this principle, People v. Gardner (1880) 55 Cal. 304, approved the ruling of the trial court rejecting, in an action brought on the bond of the defendant surveyor general, all evidence of his defalcations in the office he held ex officio, that of register of the state land office. More recently we find in City of San Bruno v. National Surety Co. (1931) 119 Cal.App. 27, 5 P.(2d) 951, 953, these words: “It is well settled that * * * when a person holds two distinct offices, the bond of one does not cover his duties in the other * * * even though the holder of the first office is ex officio the holder of the second.” See, further, Butte County v. Morgan (1888) 76 Cal. 1, 18 P. 115, and People v. Burkhart (1888) 76 Cal. 606, 18 P. 776.

It is also settled, we find, that the defendant Lampton holds two distinct offices, that of county clerk and that of clerk of the superior court. Most recently, in Union Bank & Trust Co. v. County of Los Angeles (1934) 2 Cal.App.(2d) 600, 38 P.(2d) 442, where a judgment in favor of Los Angeles county in the case before us was under review, it was held that respecting the currency introduced into evidence, Mr. Lampton received it as clerk of the court and not as county clerk; that the two offices were separate and distinct. In addition to the several authorities cited in support of the conclusion, we note two cases. In People v. Bradbury (1909) 155 Cal. 808, 103 P. 215, 218, the Supreme Court answered the argument that, because there was no such officer as “clerk of the superior court,” an indictment for perjury which declared that the oath had been administered by a “deputy clerk of the superior court” stated no offense, by saying: “The Constitution, however, itself declares that the county clerks shall be ex officio clerks of the courts of record in and for their respective counties or cities and counties. Const. art. 6, § 14. Thus the office of clerk of the superior court is created by law, and it needs no citation of authority to the effect that in such matters a deputy may act for his principal.” Much the same point was raised in People v. Collins (1907) 6 Cal.App. 492, 500, 92 P. 513, 517, it being contended that it did not appear that the officer who administered the oath had authority to do so. This contention was met by noting that the officer who administered the oath was a deputy county clerk and that “a deputy county clerk is ex officio a clerk of the superior court, and as such has power upon the trial of an action in such court to administer oaths to witnesses upon such trial,” citing Code of Civil Procedure, § 2093, which authorizes “a clerk of any court” to administer an oath.

The conclusion which follows from these two lines of authority, the one that the office of clerk of the superior court is a separate office from that of county clerk, and the other line holding that the official bond given by an officer does not cover the duties of the office held ex officio, is plain: for the loss of the exhibits placed in the hands of his chief deputy as chief deputy clerk of the superior court, the defendant Lampton and his surety are not liable on the bond he gave as county clerk. Two cases might well cast doubt upon this conclusion but for one fact, explicit in one, implicit in the other. These two cases are City and County of San Francisco v. Mulcrevy (1910) 15 Cal.App. 11, 113 P. 339, and County of Alameda v. Cook (1916) 32 Cal.App. 165, 162 P. 405, in each of which recovery was authorized against the county clerk and his bondsmen for his failure to turn over to the county treasurer naturalization fees received by him. In the latter case it is stated: “It is conceded that the corporation defendant is liable upon its bond if it be held that the complaint states a cause of action against the defendant Cook,” the county clerk. It is evident from the opinion in the Mulcrevy Case that it, likewise, was concerned only with the question of the clerk's duty to turn the naturalization fees over to the county treasurer, not with the capacity in which he had received them, whether as county clerk or as clerk of the superior court. These cases do not decide, because they did not consider, whether or not a failure of duty as clerk of court gives rise to an action on the county clerk's bond.

We have concluded not only that a judgment may not be had against defendant Lampton and the surety on his bond, given by him as county clerk, but also that there is not to be a recovery against him on the common–law theory that either as county clerk or as clerk of the court he is liable for the misfeasance of his deputies. What we said in the opinion in Van Vorce v. Thomas, 64 P.(2d) 772, filed this day, in support of our decision that the marshal of the municipal court was not liable for the torts of his deputies, applies with equal force here. We would make one further distinction between the relation of the defendant Lampton and his deputies and that relation as known to the common law, taking for our purposes this quotation from Sarter v. Siskiyou County (1919) 42 Cal.App. 530, 183 P. 852, 854, relied upon by the plaintiff: “As stated, the deputy acts for and in the place of the principal, and his (the deputy's) acts are therefore not his, but those of the holder or incumbent of the office. When the holder of a public office dies or resigns, the authority of his deputy ipso facto ceases upon the happening of either event.” Should the Los Angeles county clerk die or resign, his deputies would not cease to function with authority. They are holding positions created by ordinance, as authorized by a charter (St.1913, p. 1484), adopted pursuant to section 7 1/2, article 11, State Constitution. A reading of the provisions of article 9, of the charter (St.1913, p. 1493 et seq., § 30 et seq.), providing for a classified civil service, leaves one with the conviction that a deputy whose probationary period is over, retains his position until something happens to him, not until something happens to the head of the office. Practice has been consistent with our conclusion; the substitution of a new officer for an old has been effected without the status of the civil service employees in the office being affected. The defendant Lampton is a public officer whose deputies do not fall into the category of personal representatives in his private service. Rather, they themselves are servants of the government. For the torts of such, he is not responsible. Michel v. Smith, (1922) 188 Cal. 199, 205 P. 113; Hilton v. Oliver (1928) 204 Cal. 535, 269 P. 425, 61 A.L.R. 297; Noack v. Zellerbach (1936) 11 Cal.App.(2d) 186, 53 P.(2d) 986.

The judgment is affirmed.

BISHOP, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.