32 Neb. 818 | Neb. | 1891
The county of Wayne brought this action on April 17, 1889, against John T. Bressler, late county treasurer, and David C. Patterson, late deputy county treasurer, alleging that as such officers they received large sums of money for
Lots 7, 8, block 3, Washington Hill addition to Omaha.
Lots 3, 19, block B, Sanders & Himbaugh’s addition to Omaha.
Lots 5, 6, Joestwer’s sub., Shinis addition to Omaha.
Lots 22, 23, block 3; lots 20, 24, block 6; lot 6, block 11; lot 13, block 8, Douglas addition to Omaha.
Lot 11, block 1; lots 3, 7, block 7; lot 11, block 9, Lincoln Place addition to Omaha.
Lots 1, 2, 3, 4, 5, 6, 7, block 1; lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, block 2- lots 2, 5, 6, 7, block 3, West Side No 3 addition to Omaha.
Lots 17, 24, 25, 32, Mayfield’s addition to Omaha.
Lots 3, 6, block 1, Folsom Place addition to Omaha.
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, block 1; lots 3, 4, 5, 6, 7, 8, 9,10,11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, block 2; lots 1, 2, 3, 5, 6, 7, 10, 11, 13, 14, 15, 18, 19, 20, 21, 23, 24, block 4, Fayette Park addition to Omaha.
The N. £ of the W. 44 feet of lot 3, block 177; the middle 44 feet of lot 1, block 192, and the W. 22 feet of lot 7, block 117, in Omaha, all situate in the county of Douglas, in the name of defendant Patterson.
Also the following lands and lots in the county of Wayne: The N. £ of the N. W. £ of sec. 10, Tp. 25, R. 4; the S. W. £ of sec. 4, Tp. 26, R. 3; the S. E. £ and S. £ of S. W. £ of sec. 32, Tp. 27, R. 1; the N. W. £ of sec. 26, Tp. 26, R. 1; the E. £ and S. W. £ of the N. E. £ and W. £ of the S. E. £ of sec. 25, Tp. 26, R. 4, and the E. £ of lots 4, 5, and 6 in block 8, and lot 12 in block 6, Crawford & Brown’s- addition to the city of Wayne, in the name of defendant Patterson.
Also the S. £ of S. W. £ of sec. 14, and the N. £ of the N. W. £ of see. 23, Tp. 27, R. 2; the N. £ of the N.*E. £ of sec. 11, and the N. £ of N. W. £ of sec. 12, Tp. 27, R. 2; the E. £ of N. E. £ of sec 4, Tp. 25, R. 5; the S. E. £ of sec.
Also the N. £ of N. W. £ of see. 10, Tp. 25, R. 4; lots 1 and 2, sec. 2, and lot 1, sec. 14, Tp. 26, R. 5; the N. £ of N. W. £ of sec. 10, Tp. 25, R. 4; the W. £ and N. E. £ of sec. 35, Tp. 26, R. 2; the N. £ of N. W. £ of sec. 23, Tp. 27, R. 2, and lot 3 in block 13, lots 4, 5, and 9 in block 25, lot 3 in block 13, in the town of Wayne, and lots 24 and 25 in block 4 in the town of Winside, in the name of defendants- Bressler and Patterson jointly. And that this course of dealing was, at the time, fraudulently concealed by the defendants from the plaintiff, and had not come to the knowledge of the plaintiff, or of its authorities, until shortly before the bringing of this action.
It is prayed that the defendants hold the land purchased by them with the plaintiff’s money in trust for it, and that upon being paid their expenditures on account of it, they convey the lands to the plaintiff; that an account be taken of the gains and profits of the defendants arising from the use of the public money, and that judgment be entered against them for the amounts thereof.
On May 22, 1889, James Britton, alleging that he was, and, for ten years past, had been a taxpayer and owner of real and personal property in the county of Wayne, exhibited his petition, intervening with the plaintiff and setting up the same cause of action against the defendants, and the intervenor’s motion to be made a party plaintiff being overruled, he excepted on the record. The cause being further heard and argued, the defendant’s demurrer was sustained, and the cause was dismissed and exceptions taken by the plaintiff.
The plaintiffs in error maintain, by argument, that the defendants are trustees for the county, and, as such, must account for any gains and profits they may have made in the receipts and disbursements of the county’s funds; and, in support of this, they cite those wise saws and modern instances which apparently authorize their views, and which they claim have been applied to every conceivable class of trustees, and more especially wherein trustees have made use of trust funds in their business in trade, making gains and profits, that they cannot so appropriate the avails to themselves, and that their beneficiaries are entitled to the net proceeds. The counsel argues first: “ That upon these grounds where a trustee, or other person, standing in a fiduciary relation, makes a profit out of any transactions within the scope of his agency or authority, that profit will belong to his cestui que trust. (Story, Equi. Jurisp., sec. 1261.) And the very eminent commentator, Aaron E. Perry, in his work on Trusts, states the general rule in these words: “All persons who stand in a fiduciary relation to others must account for all the profits made upon moneys in their hands by reason of such relation,” and adds that “ agents, guardians, directors of corporations, officers ot municipal corporations, and all other persons clothed with a fiduciary character are subject to this rule,”
The proposition is not disputed that a county treasurer is entrusted with the care of the public funds which are by law paid to him, and which he is by law required to receive and disburse, and required to pay the remainder over to his successor in office. This duty the defendants performed according to law. The other proposition, that he is a trustee for the county, and, as such, must answer to his principal for any gains and profits he may have made in dealing with the public funds, was not, established at the date of the trial of the question in the court below. .
By a recent act of the legislature, section 6, chapter 50, of the Session Laws, to take effect August 1, 1891, it is provided that the county treasurers of this state shall deposit and at all times keep in deposit for safe keeping, in state or national banks, or in some of them doing business in the county, and of approved and responsible standing, the amounts of money in his hands belonging to the several current funds of the county treasury, subject to payment when demanded by the county treasurer on his check, and shall be required to pay to the county, for the privilege of keeping such deposits, interest amounting to not less than three per cent per annum upon the amounts so deposited, to be computed on the average daily balance of the public moneys kept on deposit therewith, and shall be paid and credited to the county on the first day of January, April, July, and October of each year. (Consolidated Statutes, sec. 4275.) This statute has no bearing on the present inquiry. Section 124 of the Criminal Code, entitled “ Embezzlement,” of public money, provides that “ If any officer, or any other person charged with the col
At the October term 1878, in an action of State v. Keim & Grable, to recover a deposit of $2,000, with defendants as bankers, deposited for safe keeping, to be paid on demand, it was held, as in this case, on demurrer, that an unauthorized or unsatisfied loan or deposit of public money constitutes no cause of action in the name of the state. (8 Neb., 63.)
In a latter case the plaintiff in error had recovered a judgment against L. J. Gandy, who, as treasurer of York county, had on deposit in the Farmers & Merchants Bank of- York $1,500 of the public money which was garnished by the plaintiff. It was held that in the face of the Criminal Code, prohibiting the depositing of public funds, the defense that the money was deposited by the judgment debtor as county treasurer, and as public funds could not be heard either from the judgment debtor or the garnishee, and that the money was subject to garnishment by the plaintiff.) First Natl. Bank, South Bend, Ind., v. Gandy, 11 Neb., 431.)
In the more recent action of the County of Cedar v. Peter Jenal, late county treasurer, and others, sureties on his bond, for the recovery of the remainder due the county, on being succeeded in office, it was-held “that the mere delivery of certificates of deposit of a banker, no money having been realized from them, even if assented to by his successor, is not a payment; nor will it relieve the outgoing
From these precedents we conclude that the plaintiffs had no cause of action in the form pleaded at the hearing of the issue on demurrer in the court below. And however much we may respect the maxims of counsel, that public office is a public trust, and that county treasurers are trustees to account for the net proceeds of the gains and profits of the public money, we have no doubt that the present action is erroneous, and that the bill of complaint, if it could charge the defendants, is too inexact and multifarious to be supported. The judgment of the district court is
Affirmed.