Lead Opinion
This is an appeal by John Steen and by the state of North Dakota from a judgment .against them, in favor of the insurance company, for $1,250, and interest at 6 per cent. The $1,250 is the accrued interest received on $25,000 which the insurance company deposited with John Steen in March, 1913, as security for loss. The deposit was under the statute, Comp. Laws 1913, § 4896. The interest money was claimed by the state and by John Steen, and each appealed from the judgment. On the pleadings and the conceded facts the trial court found that John Steen received interest on the deposit amounting to $1,250, that the same is the property of the plaintiff, and that judgment should be given for same in favor of the plaintiff and against each of the claimants. On April 14, 1916, judgment was entered accordingly. By statute it is provided thus: So long as the deposit required by this article is kept good and the depositing company is solvent, the state treasurer may permit the company to collect interest on the securities so deposited. § 4900.
Counsel for Steen and the state contends that this statute does not apply to the withdrawal of interest money. Hence, he says, there is absolutely no duty on the part of the state treasurer, the state, nor anyone else to return the whole or any part of the $25,000 or the interest to the company, unless such duty is created by the statute. That is an extremely narrow view of the legal and moral duty of a • depositary. The counsel forgets that when one gets hold of money or property of another, unless he has a legal right to it, he is bound to return it regardless of any statute j he is bound to return to the owner, if known, money or property that he finds or picks up in the street, though the statute does not provide that he must do so. And, of course, it is not for the state in such a case to play tweedledum and tweedledee by claiming and insisting on the money and then appealing and objecting to the form of the judgment. The state might well have disclaimed the money, and then there would have been no judgment against it. Now it is manifest that the accruing interest follows the principal, and that when the insurance company concluded to retire from doing business in the state it was entitled to its money, the $25,000, with the accrued interest. There is no principle of law or equity on which either Steen or the state can justly make any claim to the interest. True it is that the ex-treasurer was not legally obliged to put the money at interest,
Judgment affirmed.
Concurrence Opinion
(concurring specially). Section 4.896, Comp. Laws 1913, provides: “No mutual insurance company hereafter organized under the laws of this state or now or hereafter organized under the laws of any state or country, shall engage in the business of hail insurance in this state without first depositing and thereafter keeping on deposit with the treasurer of this state the sum of $25,000 in money, or in lieu thereof bonds of this state or of the United States of the par value of $25,000; provided, that domestic mutual hail insurance companies in lieu of said deposit shall be required to file a bond in the office of the commissioner of insurance in the sum of $25,-000, conditional for the carrying out of its contracts and obligations incurred by its policies; said bond to be satisfactory as to form and surety to the insurance commissioner.” Section 4891 provides that “said money or securities so deposited shall be and remain in the hands of the treasurer of this state as a fund to secure the payment of all losses occurring under all policies or contracts for hail insurance, made by such company in this state, or covering property situated within the state. And the treasurer of this state shall not permit said deposit or any part thereof to be withdrawn by said company from his custody except as hereinafter provided.” Section 4899, Comp. Laws 1913, provides that when any company which has made such deposit desires
In March, 1913, plaintiff deposited $25,000 in cash with the state treasurer, under the provisions of § 4896, supra. The defendant Steen was elected state treasurer at the general election held in November, 1914. Upon his qualification in January, 1915, his predecessor in office turned over to him the said sum of $25,000. Steen afterwards deposited these moneys in various banks. The plaintiff subsequently withdrew from the state, and was permitted to withdraw its deposit. The defendant Steen turned over to it the amount of the original deposit. The plaintiff, however, insisted that it was also entitled to receive whatever interest had been earned thereon. From statements made iipon the oral argument it appears that Steen submitted the matter to the then attorney general, and was advised that considerable uncertainty existed as to who was entitled to such interest, and that it belonged either to the plaintiff, to the state, or to the defendant Steen personally. This action was thereupon brought. The action was -originally against Steen individually and as state treasurer, later the state of North Dakota was added as a party defendant. The matter was submitted to the court upon the pleadings. The trial court ordered judgment for the plaintiff. The state and Steen have both appealed, so the entire controversy is before this court.
The questions presented in this case are somewhat perplexing. The various authorities cited by counsel for the contending parties are of little or no value, for they deal with entirely different situations. There are many authorities dealing with the right of state treasurers and other custodians of public funds to receive and appropriate to their own use interest on such funds. The conclusions reached by the various courts are far from uniform. Some of the cases hold that it is not a matter of public concern what use was made of the moneys while in the hands of the treasurer; that he is liable for the principal alone, and that his liability ceases when he accounts for the principal. See
Does the interest belong to Steen or to the plaintiff ? The plaintiff was not required to deposit money. It might have deposited securities. It might, also, at any time have withdrawn all or any part of the moneys, and deposited securities in lieu thereof. Comp. Laws 1913, •§ 4900. It received back the full amount of its original deposit, just as soon as it was entitled to do so under the law. The only legal duty which Steen owed to the plaintiff was to safely keep the deposit and return it in accordance with the stipulations which the law attached thereto. He would have fully discharged his duty by keeping the moneys deposited, and returning them to the plaintiff. He was under no legal or moral obligation to earn any interest on the deposit. In depositing the moneys in banks he — not the plaintiff or the state — assumed all risk. If any of the banks had failed, and loss ensued, Steen would have been liable for the loss. The interest was earned by reason of the fact that Steen deposited the funds in banks and assumed the risk incident thereto. The insurance company owned the money upon which the interest was earned; Steen assumed the risk which made it possible for the money to earn interest. There is much force in the argument that under these circumstances the interest earned belongs to Steen, and my mind is not altogether free from doubt upon the point.
Concurrence Opinion
(concurring specially). I concur in the affirmance of the judgment appealed from. As the other opinions filed do not state the basic reason which has led the writer to this conclusion, a brief statement is deemed necessary. Mr. Justice Grace, in his dissenting opinion, has made it clear that the interest on the deposit did not become the property of the officer under whose direction the money was placed on deposit, and it seems to me that his claim is in no wise strengthened by the fact that he went beyond any duty imposed upon him by statute and incurred (personal risk in so handling the money. Neither, in my opinion, is it strengthened by the fact that he acted reasonably in so doing. In so far as the acts of the officer were official they were the acts of the state and in so far as they were unofficial they were wholly unauthorized, either by the plaintiff or by the state, and could not, therefore, afford a basis for a personal claim.
The ownership of the fund, then, resolves to a question between the plaintiff and the state of North Dakota, and this question in turn depends upon the legal relationship which arose upon the making of the deposit. If the money were advanced upon the general credit of the state, as a depositor deposits money in a bank, it would be perfectly clear that the relation of debtor and creditor would exist from the time the deposit was made, and that the plaintiff would have no claim to any increment that should accrue prior to the termination of its license to do business in the state. But this is not a general deposit on the credit of the state; it is a special deposit which the state holds as trustee for certain purposes, and the legal relationship between the state and the depositor in these circumstances is that of trustee and cestui que trust. In other words, the state holds the fund in trust for the payment of claims, and upon the termination of the right of the plaintiff to do business, and upon its withdrawal after payment of claims in trust for the plaintiff. It seems that this trust relation is expressly recognized by § 4901, Compiled Laws of 1913, which reads:. “Any insurance company which has made such deposit, or the commissioner of insurance in the name of the state, or any person entitled to-
It will be seen that this statute recognizes the right of an insurance company to bring proceedings against the state to secure the administration or termination of the “trust created by such deposit.” This, to my mind, is a recognition of the obligation of the state to act with respect to this fund simply as a trustee, and when the state acts as a trustee it necessarily incurs all of the obligations of a private trustee. It is elementary that a private trustee cannot enrich himself out of the trust estate, and that he is not entitled to any increment or interest arising out of an unauthorized use of the trust property. Comp. Laws 1913, §§ 6282 and 6292. -This principle applies as well to the state as a trustee, and is conclusive against its claim.
Were it not for the recognition of the trust relationship assumed by the state, it would seem to me that the right of the insurance company would be measured by the statute, § 4899, Compiled Laws of 1913, which authorizes the withdrawal of the deposit, as indicated in the dissenting opinion.
Dissenting Opinion
(dissenting). Appeal from the judgment of the district court of Burleigh county, North Dakota, W. L. Nuessle, Judge.
A concise statement of the facts in this case will clearly present the issues involved therein. The Des Moines Mutual Hail & Cyclone Insurance Association is a mutual hail insurance company organized under the laws of the state of Iowa, and has its principal office in the city of Des Moines in that state. It desired to do business in the state of North Dakota. In pursuance of § 4896, Compiled Laws 1913, in the month of March, 1913, it deposited with the treasurer of the state of North Dakota, one Mr. John Steen, the sum of $25,000 in money to secure losses occurring under its policy contracts for hail insurance made by it in the state of North Dakota. Mr. Steen became treasurer of the state of North Dakota about January 1, 1915. Between Jan-
When the matter came on for determination in the trial court, the plaintiff made a motion for judgment on the pleadings. The granting of this motion was strenuously opposed by both the state and Mr. Steen. The court, however, granted the motion of the plaintiff and awarded it judgment on' the pleadings against John Steen personally and as treasurer of the state of North Dakota and the state of North Dakota in the sum of $1,250. The complaint is substantially in accordance with the facts we have outlined; also the answer and cross complaint of the defendant state of North Dakota and the defendant Steen contain allegations of fact largely similar to that of the complaint, the principal difference being that each of the contending parties claims the right to the $1,250. The issue presented is: Who is lawfully en
In order to properly determine that the trial court was in error in granting plaintiff judgment on the pleadings, it will be necessary to examine the entire case as if it were here presented on its merits and in the light of the conceded facts. Section 4896, so far as applicable to this case, is as follows: “No mutual insurance company hereafter organized under the laws of this state or now or hereafter organized under the laws of any state or country, shall engage in the business of hail insurance in this state without first depositing and thereafter keeping on deposit with the treasurer of this state the sum of $25,000 in money, or in lieu thereof bonds of this state or of the United States of the par value of $25,000.”
This section was amended by the legislature in 1915 by the enactment of chapter 174, Laws of 1915, permitting the deposit of bonds or first mortgages upon lands in North Dakota in lieu of the cash deposit. We think it must be clear that, in depositing cash under § 4896, it could not have been contemplated either by the company so depositing or the state that the company should receive or the state pay any interest thereon. This more clearly appears when we consider that that section was .amended so as to permit the depositing of additional securities in lieu of cash and in lieu of securities other than those mentioned in the § 4896.
Section 4897 is as follows: “Said money or securities so deposited shall be and remain in the hands of the treasurer of this state as a .fund to secure the payment of all losses occurring under all policies or contracts for hail insurance, made by such company in this state, or covering property situated within the state. And the treasurer of this state shall not permit said deposit or any part thereof to be withdrawn by said company from his custody except as hereinafter provided.”
Section 4900 is as follows': “So long as any deposit required by this article is kept good, and the depositing company is solvent, the state treasurer may permit the company to collect the interest on the secur
' It is clear from the foregoing sections that a foreign hail insurance company desiring to do business in the state of North Dakota would first be required to comply with the laws of the state of North Dakota relative thereto before it could be admitted to do business within the state. In its compliance with such laws, it would be dealing with the state. The contract would be between the state of North Dakota in its sovereign capacity and plaintiff. The sovereign power, the state, speaking through its law contracts that the plaintiff may transact its business within the state upon the deposit of $25,000 with the state treasurer as a fund to secure the payment of losses in the manner prescribed in § 4897, and upon otherwise complying with the law relative thereto.
It will be noticed from the examination of § 4899, Compiled Laws 1913, what the requirements are, and in what manner they must be complied with, when the foreign hail insurance corporation desires to cease the transaction of business within the state, after having made deposit above required and after having entered on the doing of its business within the state. When the company which has complied with these requirements ceases to do business within the state, and withdraws from the same, and such withdrawal is in accordance with the requirements of law relative thereto, it is entitled to receive back $25,000, or its deposit theretofore made. The insurance company in this case, in all the proceedings and steps by it taken to comply with the law and come into the state of North Dakota to do business, is dealing with the state of North Dakota, and in relinquishing its right to do business within the state and in its legal withdrawal from the state by compliance with all the laws of the state of North Dakota relative thereto, it is also dealing with the sovereign power of the state of North Dakota. The state of North Dakota exercises its sovereign powers not directly, but by and through well-defined agencies. The sovereign powers which are exercised by the state are many and varied, and are exercised through various departments of state, such as state treasurer, state auditor, state superintendent of public instruction, etc. Such officials are placed in those positions by the electorate of the state
In the case at bar, when the $25,000 was received and deposited, it was received by the state through the treasury department, and when it was paid to the state treasurer, he received it for the state, and such reception was a part of his official duties. He received it not in his individual, but in his official, capacity. After the $25,000 was received into the state treasury, whatever Mr. Steen did in the way of taking care of said money and in keeping it safely, or in depositing it with banks which had been designated as legal depositaries and receiving therefor interest-bearing certificates of deposit, was done by him while acting in his official capacity as the treasurer of the state of North Dakota for and on behalf of the state. No other reasonable deduction can be drawn from the facts in the case and from the law of the case as found in the sections above quoted. Those sections are the law of this case. All of Mr. Steen’s acts thus being official acts within the line of his duty as state treasurer, it is clear that he as an individual or as state treasurer is not entitled to receive as his own, any of the accrued interest upon such certificates of deposit.
The only remaining question to be considered in this case is: Which of the two remaining parties is entitled to receive the $1,250 interest money, the state or the insurance company? It is conceded the insurance company has received back the full amount of money which it deposited with the state treasurer. That is all it is entitled to receive
The state was to the trouble and expense of placing it in its depositaries. It had assumed the risk of safely keeping the money to secure it for the purposes for which it was deposited, and to return it to the insurance company under the conditions specified in the law relative thereto. Under the law is assumed no other duty toward the plaintiff. The state cannot be held to he under obligations to perform any other duty than that specified in the law as found in the sections above set forth. All other obligations it was under by reason of said law have been wholly performed by the state. There is no other law applicable to this case. That law was enacted for the purpose, and with the intent to set forth and fix the duty and obligation of such corporations as the plaintiff, which desire to be admitted to do business within the state, and also sets forth the corresponding duties and obligations of the state to such corporations. The plaintiff having, in a proper manner as required by law relative thereto, withdrawn from the state, the state was under no other obligations than those it assumed in the law; that is, to return to the plaintiff the amount deposited subject to the requirements of § 4899, above referred to. It must also be borne in mind that the admission of the plaintiff within this state to do business and all the proceedings had with reference to its admission, the payment of the money into the state treasury and thereafter the state keeping and safeguarding it in the manner above set forth, were all done for the plaintiff’s interest in the furtherance of its business. The state, as such, would receive no benefit other than what had incidentally accrued to it in the safeguarding of the $25,000 by placing it upon deposit as we have seen, and upon which deposit had accrued the interest in dispute, and which the law does not provide shall be returned to the plaintiff. The state has complied with all its obligations to the plaintiff, and should be and is under no further liability to it. We have examined all the authorities cited in the case, but we are fully convinced that the law which must govern this case is that of our statute above set forth.
Concurrence Opinion
I concur in the result.