88 Neb. 280 | Neb. | 1911
Lead Opinion
Action by Hamilton county against the Aurora National Bank to recover interest on public funds placed by the county treasurer in the Aurora State Bank for safe keeping. The plaintiff had judgment, and the defendant has appealed.
The record discloses the following undisputed facts: That one J. B. Cunningham took office as trea,surer of Hamilton county in January, 1902, and served four years: that he was succeeded by one George Wanek, who was still in office when this action was tried; that the defendant bank is the successor of the Aurora State Bank, with which the transactions on which the plaintiff bases its right of action were had; that during the incumbency of the above named treasurers the county had on hand a sum of money largely in excess of the amount for which it. could obtain county depositories under the provisions of article III, ch. 18, Comp. St. 1903; that it was agreed upon the trial, and is now conceded, that the county’s safe and vault were manifestly unsafe for the keeping of large sums of money; that the treasurer and the county board used their utmost endeavors to secure depository banks which would take all of the county funds and pay interest thereon according to the terms of the depository law; that they succeeded in securing some depositories, but not a sufficient number having the necessary financial strength to take all of said funds, and there was thus left a large amount of public money in the hands of the county treasurer to be otherwise kept and cared for; that after the efforts of the county treasurer and the county board to secure depository banks, not only in Hamilton county, but in adjoining counties, sufficient in amount and finan
The only disputed question involved in this controversy, as shown by the record, is the contention made by the plaintiff that there was an agreement or conspiracy be
It follows that, if any authority exists by which the judgment of the district court can be sustained, it is found in the provisions of section 18, art. Ill, ch. 18, Comp. St. 1903, which then read as follows: “The county
Counsel for plaintiff strenuously contend that the
In State v. Hill, 47 Neb. 456, in paragraphs 16 and 17 of the syllabus by Post, C. J., we held: “(16) A state treasurer who on taking charge of the office, instead of demanding the funds due from his predecessor in cash, accepts
“(17) Such a transaction, if in good faith by both parties, amounts to a settlement within the meaning of the statute, which will, to the extent of the payment so made, relieve the retiring treasurer, since the state is not entitled to concurrent remedies upon the bonds of successive officers to enforce the same liability, and whatever is in such case sufficient in law to charge the incumbent will operate per se to discharge his predeccessor.”
We think the rule there announced is applicable here. Under that rule the deposit by Mr. Cunningham of the money in the bank for safe-keeping upon certificates of deposit issued by the bank did not affect his liability nor that of his bondsmen upon his treasurer’s bond. Even if so depositing the money were contrary to law, which we do not decide, such act could be ratified by the county, and if such transaction were in good faith on the part of both himself and the county board fully adjusted and a settlement between them had, and the money so deposited all received by the county, such settlement, under the above rule, absolutely relieved Mr. Cunningham from all liability to the county for such transaction, and we have so held in Hamilton County v. Cunningham, 87 Neb. 650. This being true, then by parity of reasoning the bank, by its prompt payment of the funds on demand, was also relieved of all liability. If this transaction of depositing the money in the bank by Cunningham was in violation of law, as claimed, both Cunningham and the bank were parties to such violation, and would be equally liable therefor; and if the transaction, being in perfect good faith, were such that by its ultimate result either of the parties thereto was released, we see no escape from holding that both were released.
Reversed.
Dissenting Opinion
dissenting.
I am unable to concur in the majority opinion, and briefly state some of the reasons for my dissent. In construing statutes the court should take account of the conditions existing prior to their enactment, the mischief sought to be prevented thereby, and the means adopted to accomplish that purpose. To that end courts are required to make use of the knowledge common to all persons of such existing conditions. It is a well-known fact that for many years prior to the enactment of our depository law, in its original form, it had been the universal custom of our state and county treasurers to deposit the public moneys in such banks as would pay them the highest rate of interest thereon, to convert this interest to their own use, and thus increase their salaries and fees beyond the compensation allowed them by law. This practice had, in many instances, resulted in loss of the public funds, and many unsuccessful suits liad been instituted to recover the interest thus converted to the use of such officers. It therefore seems clear that the legislative purpose in passing the depository act of 1901 was to provide a safe place for keeping the public money, to obtain interest thereon to the use and benefit of the public, and prevent the appropriation of such interest by the public officers. The effect of the original act was to immediately put a stop to the payment of interest to treasurers on public funds deposited in banks, and interest at the rate of 2 per cent, per annum was thereafter paid to the counties by depository banks. In' the course of time it was ascertained, and it became a well-known fact, that many banks were practically annulling the provisions of the depository law by assisting in the election of county treasurers who were friendly to them, and by
I am of opinion that the defendant bank should be held liable for the payment of 2 per cent, annual interest on the daily balances of the public money of Hamilton county deposited therein from and after the adoption of the amendment of 1903; that the judgment of the district court should be reversed and the cause remanded to that court, with directions to take an account of the amount of interest thus due from the bank to the county and render a judgment accordingly.