Dillon

The City of Fresno brought an action against Charles F. Dillon and the Massachusetts Bonding and Insurance Company, surety upon Dillon's official bond, as Commissioner of Finance of the city, to recover license fees alleged to have been collected by Dillon and not accounted for, and the amount of certain illegal payments on municipal bonds authorized by Dillon during his term of office. Judgment was entered in favor of the city, and the defendants have appealed.

The District Court of Appeal of the First Appellate District, Division One, to which the cause was transferred for hearing and determination, affirmed the judgment in toto. On petition for hearing by this court, the appellants do not stress—in fact, we may assume that they concede the correctness of the judgment in the lower court, as affirmed by the District Court of Appeal, in so far as it relates to the shortage in the license fees collected by Dillon. We are of the view that the judgment as a whole should be affirmed, and we therefore adopt the decision of the District Court of Appeal, written by Mr. Justice Spence, pro tem., and concurred in by Mr. Presiding Justice Tyler and Mr. Justice Knight, as follows:

The…

I dissent. The gist of this action is the breach of official duty and not fraud. (Norton v. Title Guaranty & Surety Co., 176 Cal. 212, 215 [ 168 Pac. 16 ].) The bonds here in question were legal and outstanding obligations against the city, and by virtue of the ordinance which directed their issue, both principal and interest were made payable at the office of the city treasurer “upon presentation and surrender,” and the provisions of the charter relating to payment of unliquidated claims against the city “do not pretend to supplant these provisions of the ordinance.” (Commercial & Savings Bank v. Ewing, cited in the majority opinion.) When, therefore, Dillon as Commissioner of Finance, interjected himself into the matter of the payment of the bonds, he was not acting officially but officiously. The loss to the city was as much the result of the second and wrongful payment as it was the result of the unofficial or officious audit and certification by Dillon. It does not seem to me to present a proper case for holding the sureties liable.

Seawell, J., concurred.