*1 1070 public its involved in in True, said suits. suits State rights
own behalf are not limited in to those which its or pecuniary involved, interests are but suits are certainly such distinguished rights limited those public interests, to in which or rights private from is interests, So, involved. conclusion are our “in injunction that said suits not suits instituted State are behalf,” meaning quoted. its own within the of the statute above 227, 120 221 connection, Williams, this ex v. Mo. see State rel. [In S. Ry. W. 176 75 W. 740; Co., State ex inf. v. Mo. S. 776.] statutory pre requirement indemnifying condition bond as a an injunction, “except in suits temporary cedent to the of a issuance behalf,” jurisdictional. instituted in its own [State the State is Sup.), supra; (Mo. Williams, ex ex rel. Westhues rel. v. State v. temporary restrain Therefore, cases S. W. cited.] ing January 35, 1932, without court on orders issued the circuit And, con requiring indemnifying void. in view our bonds, are by the injunction suits are not suits instituted clusion that said incidentally, though necessarily, behalf, its own we must State maintain attorney is prosecuting not authorized conclude acting in public officers behalf acts of said suits. “The authority them, on conferred State, within limits [Throop duties, the acts of the State.” performance of their say prose will that the Officers, on “It not do Public section 21.] injunction pro attorney properly institute cuting' ex may officio required give bond. still State, be ceedings behalf of prosecuting all as proceeding at He no to institute has ex rel. State.” attorney so in unless he does [State behalf of italics.) (Our 141 W. l. c. Lamb, v. Mo. S. l. c. 670.] prohibition in each preliminary rule of follows It so It be made absolute. proceedings should entitled above All ordered. concur. Company, etc.,
In the Matter the Cameron School Trust Company Cameron, Appellant, v. District Cameron et al. 51 S. W. 1025. July 7, Two, Division 1932.
Frank B. Klepper and Paul D. Kitt appellant. *3 John Muster Culver, Phillip <& respondent. Voorhees for *4 City of
WESTHUES, C. The School appellant, District Cameron, Missouri, pro- Counties, Clinton and seeks in this DeKalb ceeding of have preferred in its favor a claim the sum allowed against $19,238, Company, a bank- of assets the Cameron ing appel- corporation, Cameron, denied of Missouri. The trial court preferred judgment appealed. it lant claim. From such district, city appellant Tt is admitted this case that Missouri; organized operating of that the such under the laws January 31, many prior to Company was for years Cameron Trust company engaged general banking business in 193.1, trust in the Cameron, Missouri; January on that it ceased do business of placed were in the hands insolvency assets on account of and its appellant that liquidation; the Commissioner Finance company date, that in the trust on deposit on with the had district Treasurer,”' Education, Brown, sum R. S. “Board of name this company knew that the officers of the trust $19,238; that district; $19,238 the sum of money of the school property was the company and property of the trust commingled with the was extent, augmented and so to that company were trust assets of Finance; Commissioner hands of the augmented into passed money over Finance took Commissioner that the $400,000. amounting to company about of the trust preference is claims a appellant upon which theory funds district depositary of the school company not the was trust company a rendering trust illegal deposit was and therefore appellant. for the benefit funds ex trustee maleficio first, company de- contends, trust was the Respondent *5 district; second, if should the court school positary funds designated legally deposi- as the company not was trust that the hold depositan- the had treasurer of the funds and no was there tary then ha,ye may any money bank reputable in deposit the he chosen and under such appellant circumstances not was 'entitled ato preferred claim. The evidence discloses that the school district many years had for
deposited money its in company; the'trust the evidence also discloses that in April, 1927, the school board advertised for bids, inviting bank- ing institutions to bid for the funds of the school district. The Cameron Company submitted a- bid May, 1927, and in was designated the of depositary the funds. The is somewhat evidence meager question on the of company whether the trust a filed sufficient bond, will, but purposes we for the case, of this it was assume that legally qualified designated depositary as the of funds. In the school district did not advertise as is required by for bids Section 12184, (Sec. 9582, Revised Statutes 19.19), R. S. but continued to deposit its funds with the trust company and receive the same rate of daily interest on paid balances as during had been two previous October, years. In 1929, company signed trust a bond executed by deposited three sureties and the bond with the treasurer of school district. record ever The does not disclose that was this bond by accepted approved the school board. Chapter governs IX
Article of Revised Statutes which depositaries by the selection of of school funds of virtue Section 1929, requires depositary Revised school boards to a Statutes select every years. provisions mandatory and two The' the statute are by into, respects.' with in all The contract entered complied must be board, case, trust representing appellant in this and the the school two-year May, 1927, at the end of the company April expired consent. or continued common period, and could not be extended with required entered into in accordance A to be new contract vras 85, supra. Chapter IX of prescribed Article proceeding Trust Com In re North Missouri Respondent to the case of cites us Ap the St. Louis Court opinion an pany, 39 S. W. had bonding company which was preference denied
peals wherein a com trust board. The claim from a school assignment of a an taken depositary of the school funds ease, designated the was pany in that bidding as the competitive advertising for without board by the school with complied statute was that the court held requires.- The statute good into was entered contract respects and all other deny the estopped to be district should school and hence faith company empowering the trust relation contractural existence of a may be said Whatever funds. depositary serve holding any disapprove we case result ultimate designation in the board into entered can be contract statute of the. provisions unless funds depositary ad- advertising for bids. reference with with complied *6 1076 vertising for prerequisite bids a authority is to the school the designate
board to bank or any company depositary trust a funds of the advertising district. a Such contract made, without bids, utterly is void parties and all parties illegal thereto are to an good contract and such a contract not be into in could entered faith. v. Langford, 19; 277 Mo. v. S. W. State ex rel. [Harris Thompson (Mo. (2d) App.), So, S. W. in this case the 196.] school whatever, acquiescence, district had authority, no common beyond express contract, consent an contract to continue the old period October, the giving the fixed statute. The of a bond in significance has no place in this case. In first the trust com- the pany legal depositary, secondly, was not was the bond not such required. respondent as the statute first The contention company legal trust depositary is therefore without merit. was the may correctly respondent’s position For fear we not state second quote we will in It it full. reads:
"(2) as though was Company Even never selected Trust depositary money by education, neverthe- of the school the board of selected, legal less, legal depositary until its treasurer had a was right deposit Company, in relation to the funds the Trust creditor, que of trustee and cestui and not the relation debtor trust, right no a exists.” preference resulted and therefore to may way or manner a question presents In what itself:
The banking so to ob funds of a school district institution receive the creditor? Our of debtor and thereto and create the relation tain title creditor, respect, in this of debtor is that the relation answer is, only: compliance a with the may way in one be created Chapter 85, supra. Article IX provisions of [Huntsville Township 751; (2d) W. Harrison 321 Mo. 12 S. Noel, Co. v. We Bank, 165, l. c. 46 W. People’s 329 Mo. S. v. State 166.] done, that sight fact, which is so often miist not lose any the hands of in public funds trust funds or other safeguards placed Legislature in its Wisdom has The officers. Every dealing one protect as to them. these funds so about charged knowledge with of these funds are and the with the officers was in the funds this case statutory title The to provisions. He had no au them as trustee. district, the treasurer held any way except save and these funds transfer title thority to Bank, v. Jackson District School provides. law [Clearmont as the of these custodian funds treasurer was the The (2d)W. 37 S. 1006.] depositary. designate a The him not authorize did law but the not does board select the school in case made is argument what to do with know loss to at a treasurer depositary deposit funds not the has treasurer if the and, funds, in some bank, By only, where is keep way he to them? suggestion, not as establishing say may we principle, the treasurer deposit the Legis- funds bank property. some vault as trust The lature provided has not for such contingency. reason it has *7 probably not is granted that it has taken for that the will officers law. the If the obey treasurer of school district under such circum- right deposit stances had the in a the funds bank of his own choosing right and the bank had the to use these funds it would destroy nullify Legislature protection placed and the has about these funds.
It argued is respondent that the relation of trustee and cestui que trust “by created operation of law” as announced in Huntsville Trust Co. v. Noel, 321 Mo. 12 749, (2d) S. (3, W. l. 754 4) legal c. is fiction and if this doctrine is extended to cases of this kind it will bring absurdity. about an Bespondent says that because the school ignores board the law in not selecting a depositary permits but its money put to be in a bank its treasurer and the bank fails a court equity evolves the fiction that bank is a places trustee and premium neglect upon dishonesty by or ruling that the district that violates the law is preference entitled to a expense at the of innocent depositors, obeys while a school district the law is not entitled preference. Bespondent to a making argument this has over looked the fact that bank in such a case when it received deposits and used the funds of the school district knew the funds property were trust knew it and also had no whatever appropriate money legally receive the title thereto. bank wrong. as well as the officers of the district was a to the party Noel, supra.] Trust Co. v. Under such circumstances the [Huntsville que create the relation of trustee and cestui trust. law does [Harrison 165; (2d) 329 46 W. Bank, Mo. S. Township People’s v. State 2) (2d) (1, 14 l. c. 599 Page Bank, rel. 322 S. W. State ex v. Mo. We the funds. The bank is ex
and cases a trustee cited.] maleficio court overlooking this fact, as has so often been held are not is between courts, in eases of this nature that the contest and other general v. Bank que creditors. trust and [Mann the cestui 2) (1, 875 and eases 46 l. c. cited.] S. W. Greenfield, Mo. pref granting of a in the pointed out that
However, have also we equity nature, a court trust, cases of this que to a oestui erence the school que trust, in this ease restoring cestui simply to the ex belongs trustee rightfully to it. The district, Company, never obtained the Cameron maleficio, in this case general therefore the district of the school to the funds title [Horigan thereto. law, entitled not, a matter creditors Haydel, Realty Pearson v. Flynn, Co. v. 253 S. W. l. c. (2); App. l. Mo. c. 261.] re- cause judgment and the
Tlie of the circuit court is reversed judgment granting appellant, manded with directions enter against preferred prayed amount district, a claim Fitzsimmons, CC., Cooley Company. Cameron Trust assets of the concur. C., is foregoing opinion Westhues,
PER CURIAM: The judges concur. All of the adopted opinion of the court. as the of St. Louis Com at Relation Amusement State Missouri Henry Rosskopf Albert Relator, v. Corporation, pany, A. Louis. City of St. Judges of Circuit Court D. Nortoni, (2d) 178. 52 S. W. *8 July Banc, 7, 1932.
Court en James A. Reeci, Bryan, Taylor, Williams, James E. Care & Mc- Vheeters, Je/fries, Bimpson (cid:127)& Plummer for relator.