*1
he admitted,
tweñty-two
had
gallons
day of
he
in his car on the
his
objection
sup-
arrest. The
it
to the confession that
ported by independent evidence
corpus
delicti is
based
inadmissibility
the jugs
and bottles of moonshine seized
car
jug
and the
found in the
But we
held
house.
have
them
objection
admissible.
objection
Therefore this
The
falls.
further
prosecuting
attorney
appellant
did not inform
he
right
signed
attorney
consult an
before he
state-
written
ment has been
Robinson,
overruled and without
is
merit.
v.
[State
IY. Appellant objectionable complains arguments to the jury of prosecuting special attorney prosecutor. objection sustained a argument prosecuting of the
attorney but appellant discharge jury overruled a motion of argument special Prejudicial on account of prosecutor. of the statements of prosecuting over-zealous appear officers to recur with increasing frequency in the records in appeals in criminal cases. They seem to be most common in in which cases the facts in evidence speak eloquently tongues more regret than the of the orators. It is table speakers that the upon eloquence power seem to set more their than Be may, opinion the evidence. we that, that as are case, rulings instant of the trial court were within its being sound discretion in these matters. error, There reversible no judgment Cooley Westimes, (7(7., is affirmed. concur. PER C., The foregoingopinion CURI A M: Fitzsimmons, adopted opinion judges as the All of the court.' concur. Secretary State, C. rel. Charles U. Becker, ex Don Behalf, Appellants, in Their
McVay, Exchange The Farmers’ L. Cantley, Liquidation, Gallatin, Bank Joseph Martin, N. Finance, Deputy Com Commissioner (2d) 129. g W. Finance, 56 S. missioner in Char e. Two, December 1932.
Division *2 Atwood, Walter Shartel, Attorney-General, B. E. Stratton Smith ap- Sloat, Dudley Assistant & Brandom for Attorneys-General, and pellant.
Ed. Hyde G. respondents. and Earle W. Frost for
692- *4 Becker, U. Sec
COOLEY, C. The Stateof Missouri and Charles bank retary State, liquidation of an insolvent petition of filed which asking belonging State to the money of account the demand in The allowed was the bank when it closed.- circuit court judgment the as From this preference. a common claim it but denied claimants, City Court appeal Kansas appealed. The was to the allowed ground on the Appeals of which to this court the cause transferred jurisdiction party to officer it a is a that was without because State designating Secre to the whether it referred the action but without It has tary Finance. of or the Commissioner of State proceedings the relation that in of this character been decided controversy give not this Commissioner of Finance the does the to Atwood, jurisdiction. Darlington 325 v. appellate [Bank Doniphan 1029; 123, Cantley, City (2d) 330 Mo. 27 S. W. v. Mo. 658; 639, 2 (2d) Clin W. School District No. Consolidated S. (Mo.), (2d) County ton v. Gower Bank S. W. We take 280.] jurisdiction officer, his because a-State the of- Secretary of State in proceeding. capacity, v. party ficial Butler Board [See (Mo.), (2d) of Cons. Dist. Education Sch. W. 44.] formally either The determinative facts were admitted sufficient- Gallatin, ly proved, Exchange The Farmers’ Bank of follows: as Missouri, incorporated bank, engaged an state was in a bank- ing 4, insolvent, 1926, when, having business until March become placed in closed its and itself the hands of Commis- doors the State proceeded liquidate who In sioner Finance it. time claims due aggregating greatly were filed and allowed an amount in excess of the collectible bank. assets money
Claimants’ was for Becker, demand collected Mr. Sec State, through retary agent, McVay, his C. Don for sale of auto licenses, is, mobile license fees collected from owners of motor vehicles, deposited McVay and all Ex was Mr. in said Farmers’ change Bank February 1926, at 1, various times between and March 4, deposits 1926. were an styled made in account “Gallatin Account,” Company money Motor License deposited in no was except that so derived and which no checks were drawn except money to transmit the to the State depository Treasurer or to a for such funds which Mr. Becker had established at Trenton. The bank at all times knew source money from which the was derived belonged and that it bank designated State. The had been depository as a for such and funds had no bond as such. [The then provide in deposit force did not for the in banks of moneys so Secretary taking collected of State of bond's depositories provided, required as is now but that such fees payable should be made State Treasurer promptly trans mitted to that The amount of such so on deposit officer.] when the bank $2157.86. closed was At February 1, all times from 4, 1926, inclusive, to March bank in vaults in its other solvent banks cash in deposit excess of amount so on said account passed and cash excess of such amount into the hands charge. the Commissioner of Finance when ’Except took he this ease no bond taken from facts relative to the deposit and its nature are similar to those in Gentry State ex rel.
Page County, St. Bank of Louis 14 S. W. 597. The statutory provisions relative to collection' disposition of motor deposits vehicle license fees were same question here in e . Page were made as in the Bank cas *5 going into is Without detail it in stated respondents’ substance in additional abstract that the circuit general court ag- allowed claims gregating $487,952.85, disallowed aggregating claims $246,788.18 or preferred claimed as common claims is not [whether and stated] aggregating $22,264.65. preferred allowed It is further stated in that: abstract said additional the as statutory preferred preference
“These claims consist of of other liquidation deposits in the of the Commissioner of Finance and $12,134.81; notes banks; claims, etc., aggregating failed labor bank the after Finance by other assets Commissioner of collected col- $3,446.36; closed, belong bank, aggregating which did not was bank days city during two banks, lections the last made bank aggregating claims where operation, $5,643.48; and other possession of during days operation few the last of its obtained in escrow property, for, or held other which it accounted had not aggregating $1,040.” probably have out appears
It further will that the Commissioner $170,000 about coming assets into his hands other among a con- creditors. For pay distribute costs when it closed bank and assets of the densed statement of the condition Gallatin, Exchange Bank of is In re Farmers’ reference made to in which 936, which was claim filed 640, 37 W. facts liquidation of bank. preference was this same asked abstract appearing respondents’ as additional therein stated here appear abstract herein. In addition is also in the additional coming $106,433.07 collected from notes into shown that only $11,749.83 of the commissioner was loans made hands 1926. Respondents appellants’
I. concede that claim entitled ruling preference in State over claims of under the creditors Bank, against Farmers’ Page supra, ex rel. “as the assets of the Commissioner, which Exchange coming Bank the hands of the into 1926,” acquired February 1, were and went into the said after they appellants’ having that date. But deposited funds been after any against paid insist out should not be allowed ap-' prior They to that that it assets held the bank date. contend by by “originating acquired pears from the record that assets bank, during 1926,” the amount which reached the- commissioner $28,762.92; pre that of the total amount of could not have exceeded by $10,129.84 “on allowed trial account ferred claims ’’ of trust which went into bank in 1926: and funds the assets they (though further state in their brief abstract natur of record this) ally appeals does not and not show other could taken appellate subsequently claimants the courts allowance directed the $44,000 aggregating of preferences funds over “on account of trust during 1926.” which went into the bank preferences trial appear ordered any It does say respondents have since been ordered court or of those paid any particular out of assets. appellate courts were directed they simply preferred So far allowed as the record shows were *6 paid out of assets in tbe bands of tbe commissioner. cash money part Neither is it shown that the State’s tbe was not specific money deposited held in tbe tbe closed. Tbe question placed account in it was of course not be after could traced bank, having commingled moneys in tbe the bank been there with had funds sources, including perhaps received from other other trust money as legally well as which it took title. deposited with it and to money But the placed State’s was all in bank within á short time prior closing. dissipated to its It is not shown to have been existence, bank. during The bank at all account had times of that on hands cash it closed in excess the amount of that fund and when into, passed in its safe more than that amount of cash and this deposit addition, the hands of the commissioner. In it then had on $15,772.88, applied in solvent banks which those banks retained and Exchange debts the Farmers’ Bank to them. The thus retained did not reach commissioner in the form of cash respondents argue that the it. therefore never received commissioner But if those creditor banks held collateral of the bank secur debtor ing the them, they did, pay debts of the latter to as doubtless such ment of the debts released the collateral to that extent. if Even security such creditor banks had not taken the payment to them en pro hanced tanto the net value of passed the assets which .into the principle commissioner’s hands. The involved is thus in stated In re Exchange Bank, 640, (2d) Farmers’ 327 Mo. quot S. W. l. 943, c. ing from Nichols v. Bank 1019, of Syracuse, App. Mo. 278 S. W. 793, 797: “ money arising general ‘When all of the deposits and from mass, receipt goes of a trust general fund one into and is used general in bank, business of the case, as done this then subject whole assets of the bank are to a lien in favor of the que cestui trust. In order to have a dissipation been of the trust fund, it must be shown either that that fund can be specifically, traced and that it dissipated, has been without augmenting the funds of trustee, or that fund with which the trust fund was wrongfully mingled has all dissipated, been and the entire estate of ” the insolvent trustee has arisen from other . . sources .’
Similarly, in Noel, Huntsville Trust 749, Co. v. 12 S. W. 754, court, 751, speaking deposit this county of a money, said.: “If, therefore, company qualified the trust had not so on June deposit county with unlawful; funds it was it, receiving being county funds under color of depository, wrongfully possession county moneys obtained of them. The so ob- thereupon became, tained the hands company, trust a trust by operation fund of law. These into, funds entered became com- mingled with, and to that augmented, extent company’s the trust may impressed
assets a whole. Such with assets therefore be wrongfully trust com extent the funds obtained so mingled effect, with also to Mann Bank them.” the same [See *7 862, (2d) 874, Twp., 329 Ver Greenfield, 875; Mo. 46 W. Harrison S. 165, 46 W. People’s 968, v. S. County Bank, non State 166.] bring instant point So this is case far as concerned the facts Respondents cite, foregoing it within the cases. rule announced among Bank, others, Page supra, but that decision State ex rel. respond- preference by does limit not the allowed as contended for judgment cited, ents. Nor in our the where the facts do of cases analogous respondents’ presented, are to those sustain conten- here point against tion. the respondents We rule this and hold that State’s preference general claim to as is entitled over claims of creditors against generally of the assets the bank in the commissioner’s hands. Appellants’
II. claim be petition that asks the State’s pre over other priority payment but only general of not over But by appellants. precise question ferred claims. This not briefed is the appeals it in taken respondents’ brief many stated that determined not been judgments denying preferences trial court’s be may will not sufficient when that this case was briefed. It be there the conten preferred claims, to in which event pay funds full all in the determined tion made in claimants’ have be petition will to ordering the extensive circuit in To end that distribution. the un not may litigation of this growing of out the now question that dispose of necessarily prolonged we it best to deem presented petition insofar as it is the herein. general upon the to be based
Claimants’ contention seems
that
providing
(Sec.
1929,
Stat.,
4969),
3152,
p.
R.
7 Mo. Ann.
S.
leaving
dies
any person
is insolvent or
State
indebted to the
debts,
to the State
pay
his
an
insufficient to
all
“the debts
estate
due
neces-
exceptions not
(with
shall
of Missouri
satisfied”
certain
be-first
theory
the
that
sary
note.)
petition
upon the
to
is not drawn
the
under
of the bank
upon
real estate
a lien
State is entitled to
1929,
at-
does not
Statutes
provisions of
Revised
11439,
Section
section
o£
invoking
application of
tempt to state facts
not
whether or
attempt to determine
shall not
We therefore
statute.
real
on
bank’s
to
lien
might
a claim a
have asserted
State
that statute.
estate under
702,
was
Banking Co.,
307,
W.
313 Mo.
S.
re Holland
In In
1919),
R.
(See.
Statutes
Revised
held that Section
lawfully
made
State
deposit apply in case of a
not
did
statutory
governing
provisions
because
the State Treasurer
legislative
a
intent
money by
evinced
treasurer
deposit
such
right
priority
to
due
payment
the State’s
debts
waive
to
it, which it would otherwise have under said Section 3152. In
Banking
legally
Company
deposit
question
case
Holland
the relation of debtor
made and created
and creditor between
right
pref
In the
a
bank and the State.
instant case the State’s
deposit
question
proposition
erence is based
that the
did
the relation of debtor and creditor but that of trustee
create
que
Respondents
applies only
cestui
trust.
contend that Section
term,
respondents
it,
phrase
debts
the strict sense of
“merely provides
priority
amounting
preference
to the State
ato
obligations arising
relationship
out
the debtor and creditor
ordinarily
general
simply
and otherwise would constitute
’’
claim
to no
entitled
over other
creditors.
In view
principle
public policy underlying
right
the common-law
sovereign
priority
payment
and said statute which is sub
*8
stantially declaratory
(In
Banking
thereof
313
Co., supra,
re Holland
321), respondents’
say
Mo. l. c.
is,
least, open
said contention
to
the
question.
to serious
The statute seems to
been
have
a more
liberal construction in favor of
Greeley
the State in
v. The Provident
Savings Bank,
458,
98
11
980,
Mo.
S. W.
wherein it was held that the
obligation
pay
personal property
to
taxes on
pur
within
comes
the
priority
view of said
statute.
In State ex rel. Karrenbrock v. Miss.
Valley
Co., 209
472, 490,
97,
Tr.
108 W.
quotes
the court
Picot,
Carondelet
v.
130,
to Use
Mo. l. c.
in effect that a tax
is
technically
(209
says
491)
a debt, but
Mo. l. c.
that under the con
present Greeley Bank,
ditions
supra,
v.
purview
comes within
it
the
priority
of said
statute. That a similar United States
be
statute is to
government
liberally construed in favor of
purpose
the
and that “its
by unnecessarily
restricting
not to be defeated
the application meaning,”
within a narrow
word ‘debts’
or technical
see Price
500,
States,
Sup.
United
U. S.
180,
Ct.
Section 5301 to the otherwise 1929) requires peri- Commissioner make to be R. S. Finance to banicing institutions, fees odical for which certain examinations charged are paid be the institution examined. assessed, to they pay to required, incorporate, Such institutions are also incorporation provide banks fees. Various sections of specified comply shall for forfeit to State sums with failure to statutory requirements requirements or with lawful the Commis- [See, illustration, 5310, 5357, 5371, 5373, sioner for Secs. of Finance. be other such not above There sections noted. may 5399.] By pursuant Section when the Commissioner of Finance, powers upon him, any conferred shall have levied assessment duly shall have the bank amount notified thereof the liability paid by so shall become a bank and levied be commissioner. required
By pay Section the commissioner is or cause treasury paid directly into the the State credit of *9 Department incorporation moneys Finance fund all fees all re- and by corporations private ceived him from or payment bankers in of against charges or any penalties his or assessments them or for- them; moneys by brought all feitures incurred recovered in actions (for Attorney-General by collection of penalties) forfeitures and may except penalties by and such forfeitures as the Constitution be required into paid county funds; school to be fees, per- and all quisites money by Department Finance any and received or employee thereof, any salaried officer or from source, on account of by department by services such employee. or rendered officer or moneys provides Section 540'9 that all forfeited provisions under the 2, (banks) recovered, when paid of Article shall be into the State treasury Banking for of the State Department, the use not where by provided otherwise the Constitution. foregoing statutory
It will that under provisions be seen fees, penalties, etc., assessments, forfeitures, to, paid, referred n belonging moneys to If paid they constitute the State. are ob- in- will become may that a bank happen It due the State. ligations liquida- for Finance by be over the Commissioner and taken solvent chargeable against penalties charged or or with assessments tion remaining unpaid. provides: Section involuntary liquidation voluntary or or “In ease of the insolvency ap- chapter this private to which any corporation or banker by the 'com- charges against it unpaid lawfully assessed
plicable, all by it incurred forfeitures penalties and unpaid and all missioner priority pay- any chapter be entitled to section of this shall under equality on an corporation, or banker from the of such ment assets given chapter.” by any priority this with other ours.] [Italics governing the which the statute law chapter, contains (cid:127)In the same institutions, prefer- other banking we find department and finance private to individuals and for whiishinure specifically provided ences corporations. may hold as
By take and trustee Section the commissioner by creditors, remaining to and unclaimed any due money the owners completion of banks depositors or stockholders of insolvent money to in a solvent state required deposit he is liquidation, in- savings subsequent In bank. case of the bank, company trust or deposit be solvency liquidation depository, such “shall such any equality priority of ... an with payment entitled chapter.” given by this other priority [Italics ours.] commissioner by 5331, money Similarly, by collected Section by deposited from liquidating a him course of bank is bank, company, or saving's time trust time to state liquidation deposits insolvency of the depository case of priority payment equality with by given “on an are the statute by priority given chapter.” other this necessarily will deposits to in and 5331 referred Sections entirely, belonging composed mostly, private if not by express apparent provision It is thus the statute owners. in said claims of the State referred to statute are same as, greater than, but priority no those Sec- embraced in moneys belonging 5331 for private’ As to tions owners. given preference governing so specifically such claims statute liquidation provision express and their the State is banks equality private an with claimants. placed on statute complete provision view of the and exclusive made In insolvent banks and the distribution of their for assets and obligations of the fact that certain due such banks *10 arising State not out the relation debtor and to the creditor are provision priority only equality of said express on priorities specified private persons, with other with no provision liquidation any or higher statute for other priority case, Legis- seems to us unreasonable to believe the lature intended that Section 3152 obligations should still apj)ly to arising due to the State not out of the relation of debtor and creditor other specifically placed than those thus equality private on with obligations claims. As to such thus given priority specifically equality private general with super- claims said necessarily statute is specific provisions seded the later statute, of the bank provides priority for a different from and inconsistent with that of the statute. We Legis- can conceive of no reason the intending give lature could have had for greater higher the State priority obligations for one class or kind- arising out of the debtor relation of and creditor than for some other class or kind obligations proceeds similar go nature of all alike into treasury. the State application We that Section 3152 has hold no in a situation such presented that here and that claimants’ demand herein should preferred claim, paid, allowed as a however, proportion with preferred if prove other there should to be insufficient funds in the commissioner’s hands for distribution pay preferred all judgment claims in full. The of the circuit denying a is therefore reversed and cause is remanded to that court to be proceeded with in accordance with the views herein expressed. West- CC., Fitzsimmons, hues and concur. PER The foregoingopinion CURI A M: adopted is C., Cooley, opinion
as the All judges the court. concur. Appellant, Toroian, Company, Parkview Rose Amusement Murp y. Corporation, and D. D. h 56 S.W. 134 . Two,
Division December 1932.