Naylor v. Crabbe, No. 2792

No. 2792 | Utah | Apr 24, 1915

STRAUP, C. J.

A demand has been made on the County Commissioners of Salt Lake County to pay, or to direct to be paid, out of funds of the county treasury, the cost or premium of the official bond of the County Treasurer. It is alleged that the official bond as fixed by law and required to' be given by the Treasurer, and approved by the County Commissioners, is in the sum of $1,686,100, and that the annual cost or premium of the bond is $4,265. They refused. .We, on application for a writ of mandate, are asked to direct them to so pay it.

We have a statute (chapter 105, Laws1 Utah 1913) which reads:

“Any public officer having public funds in his custody may deposit the same, or any part thereof, with any bank incorporated under the National Banking Act and doing business in this state, or with any bank or trust company incorporated under the laws of and engaged in business in this state: Provided, that he requires such depository to pay interest on all funds so deposited at a rate of not less than two per centum (2%) per annum, and that he take from such depository collateral security or a good and sufficient surety company bond or a personal bond approved by him and sufficient in amount to fully protect such funds: Provided, that the cost of any official bonds required to be furnished by any public Treasurer shall be paid out of funds in the respective treasurers [treasuries] : Provided, that the interest received under the provisions of this act * * * shall be placed in the general fund.”

It is averred that the funds coming into the hands of the County Treasurer have been deposited with a bank as in the act provided, and that “interest will be paid upon said funds so deposited at the rate of 2 per cent, per annum, provided the premium of said bond is paid out of public moneys,” that the annual interest on the deposits will be about $8,000, and that the interest for the first quarter, or for the months of January, February and March, 1915, amounts to the sum of $833, which, it is averred, “may now be available,” but it is not averred that it or any sum has been “placed in the general fund,” or that it even has been collected. In other respects the conditions enumerated in the statute ^to bring the case within the proviso requiring the cost or premium of official bonds to be paid out. of funds in the treasury are alleged to have been complied with.

1 The petition for the writ is demurred to. The point raised by the. demurrer is the validity of the act. That portion requiring the payment of the cost of the official bonds is claimed to be invalid on the ground that it is not sufficiently “expressed in the title” of the act, and as required by article 6, section 23, of the Constitution. The title of the act is:

“An act permitting any public officer having public funds in his custody to deposit same in banks within the state; requiring the collection of interest and security from depository banks. ’ ’

That, it is contended, does not express or indicate anything in respect of the payment of costs or premiums of official bonds, or the payment of them out of funds of the treasury, and thus it is contended that no such subject is expressed or indicated in the title.

The question is not free from doubt. There is much to support the contention made. The statute, to say the least, is peculiar and confusing. It is with reluctance, however, that courts declare acts unconstitutional, especially on the ground that the sube jet is not sufficiently expressed or indicated in the title. If the act means that the Commissioners, or other authorities of the county, are, in all events, required to pay, or cause to be paid, the cost or premium of official bonds out of funds of the county treasury or otherwise, then do we think that such a subject is not or fairly sufficiently expressed or indicated in the title. But we do not think it means that. Fairly considered, we think it means that a public official may deposit public funds with a bank or trust company. It is not now necessary to consider whether the word “may” in the statute is directory or mandatory. Considering it directory, if the official does that, he then shall exact interest at the rate of not less than two per cent, per annum. It is noticed that the act does not, at least not in express terms, require him to pay such interest into the general fund, or otherwise to account for it, except as may be implied from the language that if the funds are deposited he shall require the depository to pay interest at a rate not less than two per cent, per annum. Then comes the proviso that the cost of his official bond shall be paid out of the funds in the treasury, conditioned, however, that the interest received by him shall have been placed in the general fund. The subject of the act as indicated and expressed in the title relates clearly enough to' the subject of depositing public funds and the collection of interest thereon. Whatever conditions may be imposed as to that, of course, may be expressed in the act itself. If the payment of the official bond is conditioned upon, or relates to, the subject of interest and the collection of it, then is such payment germane thereto, and hence germane to the subject expressed in the title. We think the payment is so conditioned and that the cost of official bonds shall be paid out of funds of the treasury only in the event that public funds are deposited, interest collected thereon by the official, and placed by him in the general fund. The act as worded is but another way of saying that the cost or premium of the official bond shall be paid out of interest collected by the official .on public funds, if he places such interest in the general fund. That is what we think the act means. If it does not mean that, it is hard to conceive that it means anything.

2 With that meaning, we think that portion of the aqt claimed to be invalid is germane to the subject expressed in the title, and therefore valid. Thus the conclusion that the County Commissioners are required to pay, or to cause to be paid, the cost or premium of the official bond out of funds in the treasury to the extent or amount of interest collected by the official on public funds and placed by him in the general fund. It also follows that the Commissioners cannot be directed to pay the full amount of the cost or premium of the official bond until that amount of interest has been collected and placed in the general fund by the official. They, of course, can pay such part of the cost or premium as is equal to the amount of interest collected and placed in the general fund, but cannot be directed to pay the whole of it, until such an amount of interest shall have been collected and placed in the general fund by the official.

Upon the averments it follows that the County Commissioners cannot now be directed to pay the whole of the premium or cost of the official bond, nor now be directed to pay any part thereof, because it is not averred that any interest has as yet been collected or paid, or that any has as yet been “placed in the general fund” by the County Treasurer. Because of a want of such averments we think the demurrer should be sustained, and, unless leave to amend is asked the proceedings will be dismissed.

Such is the order.

FRICK and McCARTY, JJ., concur.