205 P. 951 | Mont. | 1922
prepared the opinion for the court.
This proceeding was commenced in the district court of Glacier county by the plaintiff to procure a writ of mandate to compel the defendant to pay over to the plaintiff forthwith the sum of $9,599.85, city taxes collected by him for the city of Cut Bank in said county, in his capacity as county treasurer.
The city of Cut Bank has never provided by ordinance for the collection of taxes levied by such city by its city treasurer, and it therefore became the duty of the county treasurer of Glacier county to collect them. During the year 1920 the defendant, Bruce R. McNamer, as ‘treasurer of Glacier county, collected for and on behalf of the city of Cut Bank, a city of the third class, the sum of $24,405.20, being the taxes levied and assessed by the city for the years 1919 and 1920. Of this
On December 23, 1920, and before defendant had accounted to said city for the balance belonging to it, to-wit, $9,599.85, the First National Bank of Cut Bank, one of the depositories that had qualified under the law to receive deposits from the county treasurer, suspended operations and became insolvent, and on or about the first day of February, 1921, said bank passed into the hands of a receiver appointed by the comptroller of the currency. The defendant, on December 31, 1920, had on deposit in said bank as county treasurer the sum of $78,332.78 representing forty-seven per cent of all moneys in his possession on that date and belonging to the various county, state and agency funds which he, as county treasurer, is required to handle. Defendant testified that he did nothing toward keeping these funds separate in the bank or banks, and the moneys belonging to the city of Cut Bank were deposited in said banks as he received them, and intermingled with moneys belonging to the county. The moneys in the defunct bank being unavailable, defendant charged off as a loss forty-seven per cent of the total amount of ■ each fund, as shown by his books to have been in his possession as county treasurer on December 31, 1920. By this method he determined that there was approximately $9,599.85 in the First National Bank on said last-mentioned date belonging to the city of Cut Bank. These various amounts so charged off as a loss have been carried upon his books as an “escrow fund.” There was a
On the seventeenth day of March, demand having previously been made upon the defendant that he pay to the city of Cut Bank the balance due it, the city instituted the present proceeding to compel him to deliver and pay over to the proper officials of the city the balance still due on account of taxes so collected. On April 21, 1921, being the return day of the writ, the defendant filed a return and answer thereto, in which he set forth the depositing of said moneys with the First National Bank of Cut Bank, the insolvency of said bank, and alleged that by reason thereof there were no funds in his hands available for the payment of the amount as directed by the writ of mandate. To this return the plaintiff interposed a demurrer which was by the court overruled. The plaintiff served and filed its reply to said return and answer, and alleged, among other things, that the moneys due the city of Cut Bank had been intermingled with the moneys of Glacier county, and that the same can be drawn out by said county treasurer and paid to the city of Cut Bank.
Upon the issues thus framed, a hearing was had before the lower court; and thereafter the court rendered and caused to be entered its judgment and order therein, in which it found that the cause shown by the defendant was and is good and sufficient, and that the plaintiff is not entitled to a peremptory writ of mandate, and decreed that such writ be refused, and the action dismissed. This appeal is taken from the judgment of the lower court.
It is earnestly insisted that the court erred in denying plaintiff’s petition for a peremptory writ of mandate, and rendering and entering judgment for the defendant.
The city of Cut Bank not having made provision by ordi
Defendant does not take issue with the statement that it was his duty as county treasurer to collect the city taxes, but asserts that the claim that it was his duty to turn them over to the city treasurer must be accepted with some qualifications. He urges that under section 3003 of the Revised Codes of 1907, as amended by Chapter 88 of the Session Laws of 1913, it became his duty as county treasurer to deposit “all public moneys in his possession and under his control” in certain depositories designated by the board of county commissioners, which he did, and that, having done so, he is not liable for the loss of such moneys not due to his neglect, fraud or dishonorable conduct, and further that the taxes were received by him as a mixed fund in which state, county, city and school districts have an interest, but to no part of which either the state, county, city or school district can claim title until he as treasurer, in the discharge of his duty, has had time within which to segregate and appropriate from this general fund the particular portion to which each political subdivision is entitled.
Now, conceding that it is the duty of the county treasurer under the statute just quoted to deposit all moneys collected by him for the city, it goes without saying that he has not then discharged his full duty toward the city. There remains the further duty to account to the city for the moneys so collected. It is further perfectly apparent from a reading of statutes that the city treasurer, and not the county treasurer, is the proper custodian of the city’s moneys. (Chap. 88, Laws 1913.) Section 3257, as amended by Chapter 88 of the Session Laws of 1913, imposes upon the city treasurer substantially the same duties with reference to the handling of public moneys coming into- his hands as is imposed upon the county treasurer. He is obliged “to receive all moneys that come to the city or town, either from taxation or otherwise” and “to deposit all public moneys in his possession and under his control” in substantially the same manner as is required of county treasurers, and the sums so deposited shall bear interest at the rate of two and one-half per cent p.er annum, payable “quarterly-annually.” (Chap. 88, Laws 1913.)
Not being the custodian of the city’s funds, but simply acting as a collector of city taxes, it is plain that, as soon as
While the statute (sec. 3356, Eev. Codes 1907) makes provision for the collection of city taxes by the county treasurer, where the city has not provided by ordinance for the collection of the same by its city treasurer, there is no specific provision as to when the money so collected shall be turned over to the city or its city treasurer. It is unfortunate that this matter should have been overlooked by the legislature, but a careful reading of all of the provisions of the statutes dealing with tbe subject under consideration, leads us irresistibly to
In the case at bar it is undisputed that on December 31, 1920, when the First National Bank of Cut Bank closed its doors, being one month after the great mass of the city taxes had been collected, the defendant had neglected to pay over to the city treasurer the moneys which he had collected for the city. Under such circumstances we unhesitatingly declare that an unreasonable time had elapsed for the performance of a plain duty, namely, the computation of the amount of city taxes collected and accounting therefor to the city, and that, in contemplation of law, this money was at the time of the demand by the plaintiff therefor, and the issuance of the alternative writ, in the county treasury, and should have been turned over to the city treasurer of the city of Cut Bank.
It will be noted in this connection that Chapter 8-8, stúfira, not only provides that the city treasurer must receive all moneys that come to the city from taxation, and deposit the same in certain designated depositories, but also provides that the city shall receive interest on all sums so deposited by such treasurer in banks which have qualified under .the Act to receive such deposits. From this it is apparent that the legislature intended that the city, and not the county, should receive all interest on the city’s moneys. To say that the county treasurer, after having collected the city taxes and deposited the same in designated depositories, could be considered to have performed his full duty, and not obliged to account therefor until demand made upon him by the proper city officials, would in our opinion be running counter to, and would in a measure defeat the purpose of, the above provisions of our statutes. In other words, under this Act it is evident that the legislature intended that both the county and city should profit by the deposits made in the designated depositories, and to say that the county should be permitted to retain and reap a profit from the money in the county treasury belonging to the city
But, says the defendant, the county treasurer has no available funds out of which to pay the amount due the city of Cut Bank. This argument is likewise based on a false premise. He argues thus: That of all moneys collected by him on December 31, 1920, forty-seven per cent thereof was on deposit in the defunct First National Bank of Cut Bank. He testified that two courses were open to him: One was to pay out the money he had on deposit in other banks, as fast as it was called for, and keep on paying until there was no money left, disregarding the fact that about forty-seven per cent of the money was unavailable, that is, tied up in the First National Bank; and, second, to consider that forty-seven per cent of the city’s money, as well as forty-seven per cent of the money belonging to the various other funds, was on deposit in the defunct First National Bank. He chose the latter course. He deducted from each fund of which he was custodian, as well as from the amount collected for the city, this forty-seven per cent representing the amount on deposit in said defunct bank. He does not call to our attention any law or rule which would authorize him so to do. It is perfectly apparent that he arbitrarily selected this method and distributed all moneys available pro rata to the various funds, and assumed that forty-seven per cent of all moneys he had collected were on deposit in the First National Bank. To our minds he had a perfect
The above also disposes of the point made by defendant that
"While we are fully aware of the rule that mandamus will not lie to compel the doing of something unauthorized by law or impossible of performance, yet in the instant ease such a rule is inapplicable. In contemplation of law the city’s money is still in the county treasury, and the fact that -the money has been diverted by the arbitrary act of the county treasurer into some other fund or funds does not excuse the treasurer from the duty of paying the same over to the city.
In People ex rel. Martin v. Brown, 55 N. Y. 180, mandamus was held to be the proper remedy to compel a tax collector to pay taxes collected to make payments on bonds issued in aid of a railroad to the railroad commissioners of the town, although the collector had already paid the funds to the wrong officer. In that case the court said: “The payment to the supervisor of the town was unauthorized; and it is not a
Again, in People v. Comptroller, 77 N. Y. 45, it was said: “It is a general rule that the writ of mandamus will not be awarded, when it appears that there are no funds out of which the warrant can be paid if drawn. (High on Remedies, sec. 352.) But when money has been appropriated for a specific purpose it is not in all cases a sufficient answer to an application for a mandamus to compel its payment for that purpose to set up that the money has been wrongfully applied to other purposes. It may be regarded in contemplation of law, as still in the treasury. (People v. Stout, 23 Barb. 338; Hohl v. Town of Westford, 33 Wis. 324; Campbell v. Polk, 3 Iowa, 467; Lansing v. Van Gorder, 24 Mich. 456; Risley v. Smith, 64 N. Y. 570.)”
The same principle was announced by the court in the case of People ex rel. Rohr v. Owens, 110 App. Div. 30, 96 N. Y. Supp. 1034: “ ‘The money which was raised for the purpose of paying said draft was diverted from its proper purpose to the payment of other drafts.’ And no part of the money came into the official hands of the present treasurer. His contention is that under such circumstances this proceeding [mandamus] will not lie. As the money was raised and appropriated for a specific purpose, I think that the eye of the law still regards it as- in the treasury, and applicable to the discharge of the draft, and that this case must be decided upon the authority of People ex rel. Dannat v. Comptroller, 77 N. Y. 45.”
That mandamus is the appropriate remedy in a ease of this
For the foregoing reasons we recommend that the judgment be reversed and the cause remanded to the district court, with directions to grant the peremptory writ of mandamus as prayed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment appealed from is reversed and the cause is remanded to the district court, with directions to grant the peremptory writ of mandamus.
Reversed.