116 Neb. 533 | Neb. | 1928
Plaintiff in error, hereinafter called defendant, was informed against in the Cass county district court for unlawfully receiving on deposit in the First National Bank of Plattsmouth, of which he was at the time an officer, public money, collected and held by the county treasurer of such county without first having complied with the provisions of article XXIII, ch. 61, Comp. St. 1922, entitled “Deposit and Investment of Public Funds,” as amended by chapter 96, Laws 1925, by furnishing bond or other security for such deposit. At the trial he was found guilty and sentenced to pay a fine of $300; to reverse which judgment, error is prosecuted.
Such article XXIII, as amended, so far as material to this case, in substance provides, that the county treasurers of the respective counties of this state shall deposit for safe-keeping in state, national or private banks doing business in their respective counties, the amount of money coming into their hands as such county treasurers, but shall not make such deposits before the board of county commissioners has selected and approved the depository
The facts, as reflected by the record, and which must have been found by the jury, are in substance as follows: Mia U. Gering was county treasurer of Cass county, and had collected and held in her possession as such, at the dates here in question, public funds amounting to $25,000 and over. The First National Bank of Plattsmouth in such county was a banking corporation duly organized for the purpose, and doing business at the place and under the laws indicated by its name. The defendant was at the time, and had been for some years, an officer of such bank, to wit, its cashier. The bank had been by the county board, on such bank’s application, made a depository of public funds on its giving a guaranty (surety) bond in the sum of $20,000, conditioned as by statute provided, which bond was by the bank procured to be executed, filed with the county clerk, and approved by the county board on and prior to February 7, 1923. From this date, under the above conditions, the county treasurer had deposited in such bank public funds in different amounts, but at no one time had such deposit exceeded the bond until the challenged deposit was had and made. On or about November 15, 1926, defendant went to the office of the county treas
To the judgment entered the defendant assigns seven claimed reasons why it should be reversed. These seven, however, may be resolved into two: (1) Does the article taken as a whole define a crime against an officer of a national bank, admitting that it is within legislative limitations? (2) Is the enactment such an interference with the vested rights, duties and privileges of an officer of a national bank, or of such bank, as to render it unenforceable ? -
As to the first assignment, a consideration of the enactment as a whole leads us to conclude that a felony as to an officer of a national bank is therein defined; and, further, that the information filed in this case is sufficient to charge the defendant with the commission of a felony as in such article prescribed.
As to the second assignment, it may be admitted that “National banks are brought into existence under federal legislation, are instrumentalities of the federal government and are necessarily subject to the paramount authority of the United States. Nevertheless, national banks are subject to the laws of a state in respect of their affairs unless such laws interfere with the purposes of their creation, tend to impair or destroy their efficiency as federal agencies or conflict with the paramount law of the United States.” First Nat. Bank v. Missouri, 263 U. S. 640, 656. The article here under consideration, as we view it, was enacted for the purpose of safeguarding the public funds as they accumulate in the office of the county treasurer; a police regulation enacted in furtherance of the public good. By these enactments, as to the funds mentioned, the powers and duties of the county treasurer are defined and limited, so that he as well as the. bank officer dealing with him are each informed of the scope of such treasurer’s author
National Bank v. Ferguson, 48 Kan. 732, and State v. First Nat. Bank of Clark, 2 S. Dak. 568, while in no manner controlling on the federal courts, have also aided us in arriving at our conclusion herein.
Counsel for defendant relies mainly on Easton v. Iowa, 188 U. S. 220. However, it seems to us that such case is easily distinguishable from the case at bar. There, the state of Iowa had enacted a statute which made it a felony for an officer of a bank (state or national) to receive deposits when the bank was insolvent. In construing this statute the supreme court of Iowa had determined that it applied to national as well as state banks, and that the penal provisions of such statute were applicable to the former as well as the latter. Error was prosecuted to the Supreme Court of the United States, where, in the course of its opinion, it is stated, at page 238:
“Our conclusions, upon principle and authority, are that congress having power to create a system of national banks, is the judge as to the extent of the powers which should be- conferred upon such banks, and has the sole power to regulate and control the exercise of their operations; that congress has directly dealt with the subject of insolvency of such banks by giving control to the secretary of the treasury and the comptroller of the currency, who are authorized to suspend the operations of the banks and appoint receivers thereof when they become insolvent, or when they fail to make good any impairment of capital; that full and adequate provisions have been made for the protection of creditors of such institutions by requiring*540 frequent reports to be made of their condition and by the power of visitation by federal officers; that it is not competent for state legislatures to interfere, whether with hostile or friendly intentions, with national banks or their officers in the exercise of the powers bestowed upon them by the general government.”
Thus, it will be seen that in the Easton case congress had legislated on the subject, and to permit an investigation by a state as to the insolvency of a national bank, whenever such state might deem it wise, would be a direct interference with the operation of such bank, as well as with the duties and privileges imposed upon the secretary of the treasury and the comptroller of the currency, as by statute provided. A different situation is presented when we consider the instant case. As to these public funds of the state, congress had neither legislated in reference thereto, or attempted to do so, and neither could it by force of legislation create a rule governing the disposition of the public moneys of the state. As we view it, the Iowa statute sought to be enforced in the Easton case was not an incidental restriction placed upon the business of the national bank, but rather an attempted interference with the due operation of such bank. In these federal banking laws congress was acting in derogation of the rights of the states only to the extent expressed in its enactments, or as to those things that might be fairly implied therefrom.
While the reasoning in the Easton case is forceful and instructive, as we construe it, it is without application to the article here under consideration which in no manner interferes with, or impedes, the due operation of national banks.
It follows that the judgment of the trial court is right, and it is,
Affirmed.