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Constitutions, Laws, Statutes and Hope

Bonding laws required by the NM &

US constitutions and New Mexico Statutes.

Penal bonds vs insurance.

JURISDICTION

Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)

Judges as Criminals

The Seventh Circuit Court of Appeals held that the Circuit Court of Cook County is a criminal enterprise. U.S. v. Murphy, 768 F.2d 1518, 1531 (7th Cir. 1985).

The United States Supreme Court recently acknowledged the judicial corruption in Cook County, when it stated that Judge "Maloney was one of many dishonest judges exposed and convicted through 'Operation Greylord', a labyrinthine federal investigation of judicial corruption in Chicago". Bracey v. Gramley, case No. 96-6133 (June 9, 1997).

Since judges who do not report the criminal activities of other judges become principals in the criminal activity, 18 U.S.C. Section 2, 3 & 4, and since no judges have reported the criminal activity of the judges who have been convicted, the other judges are as guilty as the convicted judges.

The criminal activities that the Federal Courts found in the Circuit Court of Cook County still exist, and are today under the care, custody and control of Judge Greylord II (Chief Judge Donald O'Connell). The Circuit Court of Cook County remains a criminal enterprise.

LAWS

63C Am Jur 2d PUBLIC OFFICERS AND EMPLOYEES § 130

1. IN GENERAL. [§§ 130-133]

§ 130. Generally; nature of bond

Public officers may be required to give a bond for the performance of their official duties,68 even when re-elected or reappointed to succeed themselves.69 There is, however, a statutory prohibition against requiring or obtaining surety bonds for officers or employees of the Federal Government in carrying out their official duties.70

The bond of a public officer is in the nature of an indemnity bond rather than a penal or forfeiture bond;71 it is, in effect, a contract between the officer and the government, binding the officer to discharge the duties of his or her office.72 The bond is also an obligation binding the sureties to make good the officer's defaults.73 Official bonds are required not for the benefit of the office holder, but for the protection of the entire citizenship,74 and are designed to indemnify those suffering loss or injury by reason of misconduct or neglect in office.75

While some cases have taken the position that a public officer's official bond creates a primary contractual obligation between the injured party and the of-

67. 5 USCS § 2902(c); 5 USCA § 2902(c).

As to the qualification and selection of judges, generally, see 46 Am Jur 2d, Judges §§ 6 et seq.

As to the appointment of United States Marshals, generally, see 70 Am Jur 2d, Sheriffs, Police, and Constables § 12.

As to the appointment of military officers, generally, see 54 Am Jur 2d, Military, and Civil Defense §§ 150-153.

68, American Surety Co. v Independent School Dist. No. 18 (CA8 Min») 53 F2d 178, 81 ALR 1, cert den 284 US =683, 76 L Ed 577, 52 S Ct 200; Kansas Amusement Co. v Eddy, 143 Kan 988,57 P2d 458, 105 ALR 702.

For a discussion of the forth and sufficient of official bonds and liability on such bonds, see §§ 130 ct seq.

As to action's on official bonds. sec §§ 480 et Seq.

69. § 123.

70. 31 USCS § 9302; 31 USCA § 9302.

71. State ex rel. Switzer v Overturn', 239 Iowa 1039, 33 NW2d 405, 4 ALR2d 1343; Springfield

v Brown, 365 Mo 854, 289 SW2d 48; Pennsylvania Turnpike Corn. v United States Fidelity & Guaranty Co., 412 Pa 222, 194 A2d 423.

72. Motley v Callaway County, 347 Too 1018. 149 SW2d 875; Chappell v Fidelity & Depusit Co., 194 Sc 124, 9 SE 2d 592.

73. § 352.

74. Janes v Hadfield. 192 Ark 224, 96 SW'2cl 91,9, 109 ALR 488, ccrt den 300 US 667. 81 I. Ed 875, 57 S C;t 506.

75. Springfield v Brown. 365 Mo 854, 289 SW2d 48.

569

fiver and surety,76 other cases have taken the position that the official bond is merely collateral security for the performance of the officer's duty.77

In any case, official bonds are treated differently than private bonds.78 Thus, for example, while parties to a private- bond may contractually limit the time in which suit may be brought on the bond to a period less than the applicable statute of limitations,79 public officials do not have the power to contract away the rights of the public for whose benefit the official bond is required.80

§ 131. Common-law bonds

The conditions and terms of official bonds are sometimes prescribed by statute.81 Although a particular bond given by an officer may be different from the statutory bond, it may be enforceable as a common-law obligation,82 for the interests of the public justify the enforcement of a common-law bond when it has been substituted for a statutory bonds83 Such a bond may also he construed as including the terms required by the applicable statute.84

§ 132. Construction and validity

A bond of a public officer is to be construed in accordance with the rules governing tilt construction of bonds general,85 and should be construed to accomplish what the law requires of it.86 A statute providing for the giving of a bond by a public officer, and a bond given pursuant to such statute should, in case of doubt, be given such interpretation as will preserve the public funds.87 Thus, provisions in official bonds which tend to limit or restrict the surety's liability are void.88

It has been stated that bonds guaranteeing the fidelity of officers and employees, if written for profit and in the course of business undertaken therefor, are essentially insurance contracts and will be construed as such.S' The language of the bond is to be strictly construed against the surety, although

76. Washburn v Foster, 87 Ga App 132, 73 SE2d 240, revd on other grounds 90 Ga App 211, 82 SE2d 724; National Surety Co. v Hester's Adm'r, 241 Ky 623, 44 SW2d 563; Herkimer v American Surety Co. (4th Dept) 18 App Div 2d 94, 238 NYS2d 290; Commonwealth use of Fayette County v Perry, 330 Pa 355, 199

A 204; Maxwell v Stack, 246 Wis 487, 17 NW2d

603.

77. Oaks v American Sur. Co., 58 Idaho 482, 76 P2d 932; Dolton v Harms, 327 III App 107, 63 NE2d 785; Motley v Callaway County, 347 Mo 1018, 149 SW2d 875; Pierce County v Newman, 26 Wash 2d 63, 173 P2d 127.

As to the effect of this difference of opinion on which statute of limitations applies in an action on an official bond, see § 486 et seq.

78. State v Lidster (Ind App) 467 NE2d 47. As to private bonds, generally, see 12 Am Jur 2d, Bonds.

79. 12 Any Jur 2d, Bonds § 37.

80. State v Lidster and App) 467 NE2d 47.

81. § 13.1.

570

82. Jones v Hadfield, 192 Ark 224, 96 SW2d 959, 109 ALR 488, cert den 300 US 667, 81 L Ed 875, 57 S Ct 506.

83. Jones v Hadfield, 192 Ark 224, 96 SW2d 959, 109 ALR 488, cert den 300 US 667, 81 L Ed 875, 57 S Ct, 500.

84. § 133.

85. As to the construction of bonds, generally. see 12 Am Jur 2d, Bonds §§ 25 et seq.

86. American Surety Co. v Independent School Dist, No. 18 (CA8 Minn) 53 F2d 178, 81 ALR 1, cert den 284 US 683, 76 L Ed 577, 52 S Ct 200; Holland v American Surety Co., 149 Fla 285, 6 So 2d 280, 140 ALR 1451.

87. Holland v American Surety Co., 149 F1a 285, 6 So 2d 280. 140 ALR 1451.

88. State v Lidster (Ind App) 467 NE2d 47-

89. Troy v Anicrican Fidelity Co., 120 Vi 410. 143 A2d 464; American Surety Co. VV Commonwealth, 180 1'a 97, 21 SE2d 748.

As to fidelity bonds and insurance with regard to private employers. officers. and

63C Am jur 2d PUBLIC OFFICERS AND EMPLOYEES § 133

the entire contract is to be construed together for the purpose of giving force and effect to each clause. 90 Ambiguities in the wording of' an official bond are resolved against the party which drafts it, normally the surety.91

§ 133. —Effect of statutory requirements

All of the provisions of the statute upon which an official bond rests and to which it relates are deemed to be written into the bond,92 and as becoming a part of the bond to the same extent as though incorporated in the instrument, regardless of the intention of the parties.93 Yet, this has been held not to be the case where the bond is not a statutory public officer's performance bond, but rather a contract of indemnity, in the nature of a fidelity bond.94 Even so, ordinarily, the obligations of both the principal and the sureties on official bonds are controlled by the statutory language.95 Thus,'words relating to the officer's duty which are by statute prescribed to be included as part of the condition of his or her bond, but which have been omitted from the bond, will be regarded as having been intended to be included, so as to justify reading them in for the purpose of determining liability, even though the omitted words are not of a cumulative nature.96

If contractual provisions and limitations in contravention of the statutory requirements are inserted in an official bond, they are not enforceable, even as a common law bond.97 The fact, however, that an official bond differs in some respect from the requirements of the statute, or contains limitations not authorized by statute, does not necessarily render it invalid, since where the added conditions and provisions can be separated from the statutory ones, a good and enforceable bond may remain, and the rest can be treated as surplusage.98

employees, see 35 Am Jur 2d, Fidelity Bonds and Insurance; as to the construction of insurance contracts, generally, see 43 Am Jur 2d, Insurance §§ 269 et seq.

90. Troy v American Fidelity Co., 120 Vt 410, 143 A2d 469.

91. Scotland Neck v Western Surety Co., 301 NC 331, 271 SE2d 501; Troy v American Fidelity Co., 120 Vt 410, 143 A2d 469.

92. American Surety Co. v Independent School Dist. No. 18 (CA8 Minn) 53 F2d 178. 81 ALR 1, cert den 284 US 683, 76 L Ed 577,52 S Ct 200: Dogarin v Connor, 6 Ariz App 473, 433 P2d 653; Jones v Hadfield, 192 Ark 224, 96 SW2d 959, 109 ALR 488, cert den 300 US 667, 81 1. Ed 875, 57 S Ct 506; Holland v American Surety Co., 149 Fla 285, 6 So 2d 280, 140 ALR 1451; State ex ref. Switser v Overturif, 239 Iowa 1039, 33 NW2d 405,'4 ALR2d 1343; State v Moody (Miss) 198 So 2d 586; Grimes v Basque County (Tex Civ App) 240 SW2d 511, writ ref n r e; Miller v State (Tex Civ App) 53 SW2d 792, writ ref.

93. Grimes v Basque Counts' (Tex Civ App)240 SW2d 511, writ ref n r e; Miller v State (Tex Civ App) 53 SW2d 792, writ ref.

As to the application of this rule to cases where the amount of the bond is less than that required by statute, see § 363.

94. Langley v Patrick, 238 NC 250, 77 SE2d 656.

95. Dogarin v Connor, 6 Ariz App 473. 433 P2d 653.

A bond requiring the faithful performance of official duty is as binding on the principal and his or her sureties as if all the statutory duties of the officer were inserted in it. Avert_' County v Braswell, 215 NC 270, 1 SE2d 864.

96. Jones v Hadfield, 192 Ark 224, 96 SW2d 959, 109 ALR 488, cert den 300 US 667, 81 1. Ed 875, 57 S Ct 506.

97. Jones v Hadfield, 192 Ark 224. 96 SW2d 95(3, 109 ALR 488, cert den 300 US 667, 811. Ed 875, 57 S Ct 506.

98. Jones v Iiadfic)d. 192 Ark 224, 96 SW2d 959, 109 AI.R 488. cc rt den 300 US 667, 81 1. Ed 875, 57 S Ct 506.

571

2. REQUIREMENTS OF BOND AND EXECUTION THEREOF L 13i4-1361

§ 134. Generally

A bond of a public officer should he executed in conformity with whatever statutory provisions there may he governing the matter.99 It ,should be signed,1 and, where required by law, sealed.2- While the bond should substantially comply with whatever statutory or ordinance requirements there may be as to its form, terms, and conditions,3 unless the applicable statute provides that a bond not executed in the form prescribed will be void, a substantial compliance with the statutory requirements is generally sufficient.4

Bonds, generally, must be supported by a sufficient consideration.5

§ 135. Signatures and acknowledgment of parties

It has been stated that the statutory requirements that every bond must be signed by the principal and acknowledged by the principal and sureties 6 apply to bonds required of public officials.7

There is a difference of opinion as to the binding effect of an official bond not signed by the officer. Some decisions affirm the binding obligation upon the sureties of official bonds lacking the signature of the principal obligor.8 In some cases, the sureties on an official bond not signed by the principal have been declared not bound, because the bond was joint, and not joint, and several.9 In this regard, if the bond is joint, the signature of the officer is essential to its validity, and without his or her signature it has no binding force on the sureties,10 while a joint and several bond will bind the sureties without his or her signature.11 Sureties executing an official bond which is not signed by their principal may, by their conduct, be estopped to deny their liability thereon.12

§ 136. Delivery, approval, and acceptance

As a rule, both delivery and acceptance are essential to the validity of a bond which takes effect from the date of delivery.13Statutes providing for the approval of official bonds have been said to be directory and not mandatory, so that the failure of an officer or a court to approve an official bond as required by statute does not affect its validity,14 unless the statute specifically provides

99. Jones v Hadfield, 192 Ark 224, 96 SW2d 959, 109 ALR 486, cert den 300 US 667, 8] L Ed 875, 57 S Ct 506.

1. § 135.

2. § 129.

3. Jones v Hadfield, 192 Ark 224, 96 SW2d 959, 109 ALR 488, cert den 300 US 667, 81 L Ed 875, 57 S Ct 506; Scotland Neck v Western Surety Co., 30) NC 331, 271 SE2d 501.

7. In re Guardianship of Hampton (Minn App) 359 NW2d 740, afrd in part and rend in part on other grounds (Minn) 374 NW2d 264.

8. Whitlock v Wood, 193 Ark 695, 101 SW2d 950, 110 ALR 955.

9. Berlin Tp. v Neidermcier, 281 Mich 450, 275 NW 204.

10. Berlin Tp. v Neidermeier, 281 Mich 450, 275 NW 204.

4. Linz v Eastland County (Tex Con App) 39 11. Hampton v Gausinan, 136 Neb 550, 286

SW2d 599, 77 ALR 1466. NW 757.

5. 12 Am Jur 2d, Bonds § 10.

6. As to the necessity of the signature of the principal to a bond. generally,, sec 12 Am Jur 2d, Bonds § 14,12, § 365.

13. 12 Anr.lur 2d, Bonds § 15.

14. Slate ex rd. ,ones v Farrar, 146 Ohio St

572

63C Am Jur 2d PUBLIC OFFICERS ANI) EMPLOYEES § 137

that the officer may not discharge the duties of his or her office until the official bond has been approved.15 Thus, the failure of the proper officers to approve an official bond, or its approval by a person different from the one whose duty it is to approve it, may not invalidate the bond or release the sureties from their liability.16 Also, where an official bond is executed and delivered to the proper representative of the government, it becomes obligatory upon the parties signing it unless it. is disapproved l.by such representative.17

An acceptance or approval of an official bond should be made in the manner prescribed by statute. It may be in writing, but unless the statute requires a writing, it may be verbal.18 An implication of approval and acceptance may arise from the facts and circumstances. Thus, when an officer whose duty it is to approve a bond accepts the bond for filing places thereon his filing stamp and records it in his or her office, it is presumed, in the absence of competent evidence to the contrary, that such officer approved the bond.19

VII. TERM. OF OFFICE OR EMPLOYMENT; TENURE [§§ 137-151]

A. IN GENERAL. [§ § 137-145]

Research References

ALR Digest: Officers §§ 38, 39, 41, 42; Public Employees § 3 ALR Index: Public Officers and Employees

15 Am jur Legal Forms 2d, Public Employees § 210:46

§ 137. Generally; definitions and distinctions

There is a distinction between the words "term" and "tenure" as applied to a public officer.20 The "term," as applied to a public office, refers to a fixed and definite period of time.21 That is, the "term" is the fixed period of time the appointee is authorized to serve in office, a period that is established by law and specified by the executive in his or her letters of appointment.22 The "tenure," on the other hand, is the time the appointee actually serves in office;23 the

467, 32 Ohio Ops 542, 66 NE2d 531; Linz v Eastland County (Tex Corn App) 39 SW2d 599,77 ALR 1466; American Surety Co. v Cormmonwealth, 180 Va 97, 21 SE2d 748.

149; State ex rel. Rushford v Meador,165 W Va 48, 267 SE2d 169 As to tenure of office of persons within civil service laws, generally, see 15A Am Jur 2d. Civil Service § 47.

15. Linz v Eastland County (Tex Con) App) 39 SW2d 599, 77 ALR 1466.

16. Linz v Eastland County (Tex Corn App) 39 SW2d 599, 77 ALR 1466.

17. Prucka v Eastern Sarpy Drainage Dist., 157 Neb 284, 59 NW2d 761,

18. Prucka v Eastern Sarpy Drainage Dist., 157 Neb 284, 59 NW2d 761.

19. Prucka v Eastern Sarpy Drainage Dist., 157 Nei) 284, 59 NW2d 761.

20. Denish v Johnson, 121 NM 280, 910 P2d 914; State ex Tel. Spaeth v Olson (ND) 359 NW2d 876; St• wav'v Schultz (SD) 268 NW2d

21. Collison v State, 39 Del 460, 2 A2d 97, 119 ALR 1422; State ex rel. Racicot v District Court, 243 Mont 379. 794 P2d 1180: State ex rel. Rushford v Meador, 165 W Va 48, 967 SE2d 169.

The term of an office had been defined as the fixed and definite period of time which the law describes that an officer may hold an office. State ex ref. Spaeth v Oran (ND) 359 NW2d 876.

22. Denish v Johnson. 12) NM 280. 910 } 2d 914.

23. State ex ref. Racicot v District Court. 243 Mont 379. 794 P2d 1180; Denish v Johnson. 121 NM 280. 910 P2d 914.

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