| Wis. | Mar 9, 1926
The legislative scheme of designating county depositories was to relieve the county treasurers from liability for the loss of public funds deposited therein, provided the conditions imposed by the legislature were followed. Previous to its enactment county treasurers and their bondsmen were absolutely liable for loss of public funds in their custody. Sub. (3), sec. 59.74, Stats., provides :
“Before it shall be entitled'to receive county funds on deposit a depository so designated shall, on or before the first day of December next following designation, file with the county clerk a personal or surety company bond, to be in effect on and after the first day of January next succeeding,'and shall be subject to the approval of a committee of the county board appointed therefor.”
It is the contention of the defendants that the clause “and shall be subject to the approval of a committee of the county board appointed therefor” means that the designated' depository shall be subject to the approval of the committee and not the bond. We think this interpretation is clearly erroneous for a number of reasons. So construed, the
“If at any time after a designation is made the board shall, for good arid sufficient reasons, deem the security given insufficient, it may require a new bond, and if, in its opinion, the public interest requires it, may vacate, revoke or modify such designation. ...”
“If after a depository has been _designated by the county boards it shall fail to furnish a bond, as provided in this section, or if at any time after a depository has been designated and has filed the bond herein provided for, such bond is withdrawn by the sureties thereon, or is deemed insufficient by the committee provided for in subsection (3), said committee shall have power to- vacate, revoke, or modify the designation of the- county b.oard, and such committee shall have power to designate a depository or depositories for the remainder of the calendar year. In making such designation, such committee shall be governed by the procedure outlined in this section to be followed by the county board, and such committee shall, for the purpose of making such designation, have all the powers conferred upon the county board by this section. The bond of any depository designated as provided in this subsection shall be subject to the approval of the committee.”
“Whenever any county board shall have designated a county depository or depositories in accordance with the provisions of section 59.74 the county treasurer, as soon as*377 the bond required by that section has been approved and filed, shall deposit therein as soon as received all funds that come to his hands in that capacity in excess of the sum he is authorized by such board to retain and any sum so on deposit shall be deemed to, be in the county treasury, and such treasurer shall not be liable for any loss thereon resulting from the failure or default of such depository without fault or neglect on his part.”
It seems so plain from the statutory declaration; from the legislative scheme and the reasons therefor, as well as from the grammatical construction of sub. (3), sec. 59.74, that the words “and shall be subject to the approval of a committee of the county board appointed therefor” relate to the approval of the bond and not to the approval of the depository, that further discussion would serve but to becloud the proposition.
It follows that the trial court was right in concluding that the designated depository had not furnished the statutory bond, namely, one approved by the committee of the county board, and not having furnished such bond the county treasurer was not protected from liability because of the deposit in the designated depository. It was the duty of the county treasurer to see that the statutory bond, properly approved, was filed before making deposits in the bank. The bond not having been approved as required by statute, the treasurer was liable for the safety of the funds deposited.
It is elementary that a custom of depositing public funds extending over several years cannot annul clear statutory provisions.
As to the right of the treasurer and surety to recover upon the bond of the bank, we express no opinion, as that question is not in the case.
Neither do we deem it necessary to decide whether or not Henry E. Rohlf was a competent surety.
By the Court. — Judgment affirmed.