63 P.2d 1235 | Colo. | 1936
AN action by the people, on relation of the board of county commissioners of the county of Jefferson, to recover from the county treasurer, Koenig, and Fidelity and Deposit Company of Maryland, surety on his official bond, the sum of a balance to the credit of the county with Kountze Brothers, a failed New York banking copartnership, for which the treasurer and surety, disclaiming liability, refused to account. The defendants had judgment at trial.
In all essentials the controversy parallels Patterson v. *458 People, ex rel.,
[1-3] It is urged, however, that because, pursuant to section 8366, C. L. 1921, certain school districts of Jefferson county had made their bond coupons payable at the banking house of Kountze Brothers in New York, the treasurer of the county was bound to keep funds on deposit with that institution to meet such obligations as they matured and were presented for payment. We are not of that view. Since there is no express statutory requirements to that end, which is frankly conceded, we think that in no responsible sense can the county treasurer be concerned about the place, the manner, or the fact of payment of school district obligations. Of course, by virtue of his office the county treasurer collects tax levies made by or for the school districts of his county, *459 and is required to credit each district with collections made for it, but his only further duty is to make disbursement on warrants or orders drawn by school district officers. §§ 8301, 8302, C. L. 1921. School districts and their boards are solely responsible for the creation of district debts, and the time, manner and place of payment is of their uncontrolled action. They discharge their obligations by means of orders or warrants drawn against funds to their credit in the county treasury. If, through making certain coupons payable at Kountze Brothers in New York and others there or at the county treasury at the option of holders — both conditions obtaining here — uncertainty should arise as to when or in what sum their warrants should be drawn, the county treasurer may not relieve the school districts of their embarrassment by making a general deposit of county funds with some depositary to which the school district creditors may resort for payment of due obligations, as was done here, and escape the consequences should the depositary fail, as eventuated in this instance.
[4] But it is contended that the county treasurer had a responsible care for the credit of school districts in his county having obligations payable in the circumstances of the record here, constituting their agent indeed, and, premised so, not only was he legally justified in making the deposit of funds in the New York bank, the failure of which worked discomfiture, but in the interest of the districts was bound to do so. We cannot think that position is sound. Only incidentally, if at all, does a county treasurer know of school district indebtedness and how or where it is to be paid. The credit of such an entity, important of course, as well as the burden of the ways and means of its protection, rests with itself and its board. In whatever view considered, therefore, as we think, when the county treasurer deposited county funds with Kountze Brothers he acted gratuitously, and since loss attended his unauthorized action, the situation is *460 controlled by the Patterson decision and the Colorado cases there cited.
[5, 6] We do not regard as sound the view that an exception exists in relation to those school districts which made their coupons payable only at the banking house of Kountze Brothers, and that in forwarding money to it, in the circumstances here, so far as required to meet those particular coupons, the treasurer was justified. For accounting purposes, as we have uniformly held, all money, state, county, school district, and whatever, collected by a county treasurer, as such, belongs to the county. Patterson v. People ex rel., supra; Cooper v.People,
[7] The sole assignment of error, being general only, may be said to be insufficient under our rule 32, as emphasized by counsel for defendants in error, but in view of the public nature and importance of the major question involved, we have elected to proceed under rule 35, which is to the effect that in our discretion we may notice any error appearing of record.
In fairness to those concerned we observe that the judgment of the trial court was given prior to our pronouncement in the Patterson inquiry.
Let the judgment be reversed, the trial court to enter instead the judgment prayed for in the complaint.
MR. CHIEF JUSTICE CAMPBELL, MR. JUSTICE BURKE and MR. JUSTICE YOUNG concur.
MR. JUSTICE BUTLER concurs in part and dissents in part.
MR. JUSTICE BOUCK and MR. JUSTICE HOLLAND dissent.