189 N.W. 626 | N.D. | 1922
Lead Opinion
Statement.
This is one of several proceedings brought against a former county treasurer and a national bank. Through mandamus, the relator seeks to compel the payment of county funds by the defendant Larson, a former treasurer of Burke county, and, by the defendant bank, a depository of county funds upon time deposit.
The relator, as county auditor, has instituted this proceeding upon instructions received from the state auditor, pursuant to § 3359, C. L. 1913, which, in such case, imposes upon the auditor the duty to institute suit, where a county treasurer has failed to pay over all money with which he may stand charged. The record is long; the exhibits voluminous. No attempt will be made herein to state money figures with exactitude as if
In his testimony, the defendant Larson stated that the reasons for. so doing were that there was no immediate use for such county funds, and that the county would thereby secure a higher rate of interest. The defendant, upon the surrender of his office, delivered the certificates of deposit to his successor, who refused to receive them, and demanded the money therefor. Demand was also made upon the county commissioners that suit be commenced against the former county treasurer.
On July 8, 1921, the county commissioners adopted the following resolution:
“The following named banks of Burke county, North Dakota, are*1149 designated as depositaries to receive deposits to create a sinking fund to retire the seed and feed bond of $125,000.00 due April 1, 1926, to which certificates of deposits have been issued as follows, as there is now over fifty thousand dollars ($50,000.00) in the said seed and feed grain fund:
It appears that there'was then something over $50,000 in the seed and feed fund, the same being the unexpended proceeds of a seed and feed county loan negotiated by the county in March, 1921. The county auditor, accordingly, on July 21, 1921, instituted proceedings against the former county treasurer and the banks. The petition for the writ alleges many of the facts above stated, that the petitioner has no adequate remedy at law, and that the county will be unable to pay obligations to the state and other political subdivisions and to carry out its various governmental functions without registering warrants, unless a writ issue. The defendant interposed a demurrer, a motion to quash and an answer wherein is alleged the legality of the time deposits made. Trial was had commencing July 25,1921. The testimony taken was made applicable to all of the cases instituted. The trial court overruled the demurrer and motion to quash. The present county treasurer testified that, on May 7, 1921, there were over $32,000 in registered warrants; that since that time $76,000 in registered warrants, had been issued; that on April 20, 1921, there were due the political subdivisions of the county about $109,000. The defendant Larson testified that, on April 15, 1921, there were due the state about $26,000 for hail insurance moneys; that when he left office there were, exclusive of the certificates of deposits, about $145,000, con
The trial court found that the placing of the county funds upon time deposit in defendant bank was unlawful and without authority; that such action operated to deprive the county of necessary funds to conduct its ordinary business and the business of its various political subdivisions; that if such moneys should be permitted to be withheld on time deposit, the county would be unable to pay the state, and the various political subdivisions of the county, and it would be necessary for the county to register warrants and to suffer substantial and material loss of interest necessary to be paid on such warrants. A writ of mandamus was authorized and issued, directing the defendants to pay to the present county treasurer the sum of $22,000, moneys so placed on time deposit. This judgment was entered August 29, 1921. The defendants, on December 31, 1921, appealed from the judgment and orders of the trial court, and furnished a supersedeas undertaking upon appeal.
Contentions
The defendants-contend that the record does not justify the issuance of a writ of mandamus; that the relator, in any event, has no cause of action at law and no right to a writ of mandamus; that § 3359, C. L. 1913, pursuant to which the relator commenced this proceeding, does not authorize nor contemplate a mandamus proceeding; that neither of the defendants are public officers; that there is no legal duty shown resulting from an office, trust, or station such as permit the maintenance of mandamus; that the right of the defendant Larson to make the time deposits with the defendant bank as a legal depositary and to tender the
Decision.
Mandamus — Section 8457, C. L. 1913, provides that the writ may be issued to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station. This same statutory provision has been in effect since territorial times. Section 695, Terr. Code Civil Proc. 1877. The statutes of many states have a similar provision. 26 Cyc. 163. It is, of course, a prerogative writ denominated in our statute a special proceeding. See State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834; 26 Cyc. 143. The prerequisites 01 dinarily necessary for the issuance of the writ are: First, the clear right of the relator to compel the performance of a particular duty; and, second, that the law affords no other plain, speedy, and adequate remedy. Strauss v. Costello, 29 N. D. 215, 150 N. W. 874. As a county official the county auditor is the proper person to institute mandamus to compel the-performance of official duties with which he is concerned. 26 Cyc. 298. By law he is required to keep an accurate áccount current with the treasurer of his county. Section 3367, C. L. 1913. The duty to pay or account for county funds was a public duty, which concerned the county auditor as well as the county treasurer in the performance of their duties. Accordingly it was proper for the county auditor to appear as the relator in this proceeding, even if, perchance, § 3359, C. L. 1913, should be construed to refer to an action at law or to an action against a county treasurer as an existing official.
It is fairly well settled that mandamus will lie against a former official to compel the surrender of the insignia of the office, including funds belonging thereto. 26 Cyc. 258; 18 R. C. L. p. 261; State ex rel. Langer v. McDonald, 41 N. D. 389, 391, 170 N. W. 873; Frisbie v. Fogg,
Legal Depositaries.
Were the time deposits, made by the former county treasurer, authorized and legal? Was the resolution of the county commissioners concerning such time deposits in all respects legal and effective? The an
Pursuant to constitutional, as well as statutory, provisions, the duty to supervise and control fiscal affairs of the county is imposed upon the county commissioners. Section 172, Const.; § 3276, C. L. 1913; Boettcher v. McDowall, 43 N. D. 178, 174 N. W. 759, 761.
Pursuant to article 11 of chap. 42 of the Political Code (§§ 3315— 3329, C. D. 1913) the county commissioners, concerning depositaries of county funds, were empowered to designate either national or state hanks as county depositaries in which all of the funds of such counties should be deposited, and, further, concerning sinking funds and other county funds in excess of $1,000 for which there was no immediate use, to direct time deposits thereof for a period'of one year in a county depositary as created by law or in such state or national bank as the county commissioners might designate.
The act creating the Bank of North Dakota (chap. 147, Daws 1919) became a law February 25, 1919.' Section 7 thereof provides as follows:
“All state, county, township, municipal and school district funds, and all funds of all penal, educational and industrial institutions and all other public funds shall be, by the person having control of such funds, deposited in the Bank of North Dakota within three months from the passage and approval of this act, subject to disbursement for public purposes on checks drawn by the proper officials in the manner now or hereafter to be provided by law; provided, however, that on a proper showing made by any officiai having control of public funds, the Industrial Commission may permit a postponement * * * not to exceed six months. And provided, further, that if any such funds are now loaned by authority of law under a contract terminating at a future time, then the deposit of such funds in the Bank of North Dakota shall not be required until two months after time of expiration of such contract.”
Section 25 thereof provides as follows:
All acts and parts of acts inconsistent with this act are hereby repealed.”
Did the Bank' of North Dakota Act wholly or partially repeal the provisions of said article 11 (§§ 3315 — 3329, C. D. 1913) ? This act required the deposit of all county funds in the Bank of North Dakota. Manifestly, pursuant to its terms, legal depositaries that had been designated, or that might be designated, within a period of three months
Pursuant to the initiated law, adopted by the electors at the general election on November 2, 1920, § 7 of the Bank Act (chap. 147, Laws 1919) was amended and re-enacted (Laws 1921, p. 255) so as to read as follows:
“All State funds, and funds of all state, penal, educational and industrial institutions shall be, by the persons having control of such funds, deposited in the Bank of North Dakota.”
Accordingly, when such initiated act became a law, no mandatory requirement remained that county funds be deposited in the Bank of North Dakota. The Bank of North Dakota, however, continued to be a proper bank, wherein deposits of county, funds might be made. Section 9, chap. 147, Laws 1919.
Chap. 56, Laws 1921, became a law March 8, 1921: It provides, among other things, that all state and national banks complying with the provisions of the act, and the Bank of North Dakota, are declared to be legal depositaries of public funds of counties, etc.; that before any deposit shall be made in any depository, such depository shall furnish a bond subject to approval as to its amount and sufficiency by the governing board of the corporation (for a county meaning the county commissioners). In this opinion the word “depositary” has been used to denote a person with whom, and the word “depository,” to denote a place in which, public moneys may be deposited for safe-keeping. 18 C. J. 562. It may be noted that the legislative acts have also used these words advisedly. This act (chap. 56, Laws 1921) by law, makes all banks legal depositaries. Such banks may qualify as depositories by further complying with the terms of the act. Such act, at least impliedly, recognizes duties and powers of the county commissioners and of the county treasurer, as prescribed in said article 11. This act does not prescribe concerning the deposit of sinking funds, or other funds, of a county, upon time deposit, although the act otherwise requires reports to be made by the depository showing time deposits and demand deposits and rates of interest paid therefor. The act does not prescribe concerning the duty
These statutory provisions hereinbefore mentioned accordingly were applicable when the former county treasurer deposited upon time deposit the sum of approximately $166,000. There is evidence in the record that such time deposits were made with the consent or advice of the whole or part of the county commissioners. This consent and advice, however, does not appear from the record to have been through any formal action or at any meeting of the county commissioners. The powers conferred upon the county commissioners to designate legal depositories, or to direct time deposits, is a power requiring formal action by the county commissioners. They act as a board, and through action taken at proper meetings. Section 3290, C. L. 1913; 15 C. J. 460. See State ex rel. Lemke v. Ry. (N. D.) 179 N. W. 378; State ex rel. Lemke v. Power Co. (N. D.) 182 N. W. 539; Schwanbeck v. People, 15 Colo. 64, 24 Pac. 575; Schumm v. Seymour, 24 N. J. Eq. 143. Accordingly, the treasurer may not successfully assert the deposit of county funds upon time with the consent and advice of the county commissioners, unless he is able to establish in. the record that the county commissioners, as a body, so gave its consent and advice. The record does not so establish. Consequently, the action of the former county treasurer in depositing such county funds upon time was unauthorized and improper.
The formal resolution of the county commissioners, dated July 8, 1921, placed $50,000 out of the certificates of deposits issued, pursuant to the arrangement made with the former county treasurer in a sinking fund for the seed and feed bonds. All of these certificates are dated April 28, 1921, and become due December 1, 1922. The relator maintains that the county commissioners had no authority to place unexpended proceeds of the seed and feed bonds in the sinking fund therefor. It is unnecessary to either consider or decide this question. As hereinbefore discussed, the county commissioners did have power and authority to place money upon time deposit pursuant to the provisions of § 3319, C. L. 1913; either moneys of a sinking fund or other county funds for which there was no immediate use. The county commissioners, as hereinbefore stated, also have supervision and control over the fiscal affairs of the county, subject to the limitations imposed by statute. Section 3319, C. L- 1913, imposes the limitation of one year as a period of time
The county commissioners “shall direct a time deposit of such funds for a period of one year, as they may deem expedient, either in one or more of the county depositories as created by law, or such state or national banks as said board of county commissioners may designate.”
This specific provision, before its amendment by legislative act in 1903, provided as follows:
“The board of county commissioners are authorized and empowered to direct a time deposit of such funds for a period of one year, or six months, as they may deem expedient, either in one or more of the county depositories as created by law, or such state or national bank as said board of county commissioners may designate.” Chap. 75, § 1, Laws 1903.
It will be noted that under the former law a deposit upon time could be made for a period of one year or six months; that the words “as they may deem expedient,” present both before and after the amendment was made, refer to the succeeding phrase, and do not serve to enlarge a discretion which the legislature intended to limit. Considerations of public policy also apply in holding, upon construction, a definite limit of time to apply. 5 C. J. 542. It is readily observable that the interest rate upon a time deposit due in one year (and which is capable of being renewed) is greater than time deposit for a longer period, although the interest rate prescribed be the same for both. It follows that on July 8, 1921, the moneys placed on time deposit in the various banks by the former county treasurer were really in law deposits payable on demand; that on July 8, 1921, the county commissioners had no authority to place such deposits upon time deposit for a period of more than one year. At this time it is manifest that all moneys so placed upon time deposit by the former county treasurer have become due and payable, excepting the certificates of deposit due December 1, 1922. It is to be presumed that the banks have paid such certificates that have become due. The questions upon such certificates, therefore, have become moot, excepting those due December 1, 1922. Full consideration, however, has been given in this opinion to the proper construction and interpretation of the present depositary laws applicable to county funds, by reason of their importance in the administration of public funds in this state, and as affecting the
Dissenting Opinion
(dissenting). I dissent. In my opinion mandamus does not lie under the facts in this case. In this state “the writ of mandamus may be issued by the Supreme Court and district courts to any inferior tribunal, corporation, board or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” (Section 8457, C. L. 1913.) The writ of mandamus cannot be employed to supersede legal remedies, but is intended to furnish a remedy where no adequate legal remedy is provided. Strauss v. Costello, 29 N. D. 215, 150 N. W. 874; § 8458, C. L. 1913. In this case the defendant Lawrence Larson, while county treasurer of Burke county, made certain time deposits of funds in his hands as such county treasurer. Among others he made such deposits with the defendant bank, and received therefor time certificates of deposit. It is undisputed that, at the time his successor in office qualified, said Larson turned over to him everything then in his possession as county treasurer, including such certificates of deposit. In this case it is sought to have the said Lawrence Larson and the bank which received such deposits and issued such time certificates compelled by writ of mandamus to pay over at once the moneys so deposited. In the petition herein the petitioner prays that—
“An alternative writ of mandamus issue out of and under the seal of. this court, directed to the said Lawrence Larson and to his agent, First*1159 National Bank of Bowbells, commanding them forthwith to turn over and deliver to the said J. R. Jensen, the duly elected, qualified, and acting treasurer of Burke county, N. D., the sums of money and funds rightfully belonging to the said J. R. Jensen, as treasurer of Burke county, N. D., which are so wrongfully and unlawfully withheld and retained by the said Lawrence Larson and the said First National Bank of Bow-bells.”
The alternative writ issued upon the petition states:
“I do command and enjoin you, Lawrence Larson, and First National Bank of Bowbells, that immediately upon the receipt of this writ, to turn over and deliver to the said J. R. Jensen the duly elected, qualified, and acting county treasurer of Burke county, N. D., the sum of $r 9,000, being the funds and money rightfully belonging to .the said J. R. Jensen, as treasurer of Burke county, N. D., or in default thereof to show cause,” etc.
It is not contended that the said Lawrence Larson did not at the expiration of his term of office turn over all the records and property held by him as county treasurer to his successor in office. Gn the contrary, it is undisputed that the said Larson did turn over to his successor in office everything in his possession as county treasurer, including the •certificates of deposit which he had received from the different banks. It is also undisputed that the present county treasurer has collected a large number of such certificates of deposit when and as they became due. Larson has had no possession of or control over any of the funds which he formerly held as county treasurer or over the certificates of deposit at any time since his term of office expired. Hence this is not a case where a county treasurer at the expiration of his term refuses to turn •over to his successor in office either property or moneys in his possession or under his control, and mandamus is invoked for the purpose of compelling him to surrender the same to his successor, and authorities dealing with that situation are not applicable here. The real object of this proceeding is to compel a county treasurer, whose term of office has expired, to make restitution of certain moneys, which he, while in office, placed on time deposit, and to compel the bank in which such time deposit was made to pay over the funds so deposited in disregard of the terms of the certificates of deposit. In other words, it sought by mandamus to undo that which has been done. Manadmus is a writ to compel action, and not to undo that which has been done. 19 Am. & Eng. Ency. L. p. 743; 13 Ency. Pl. & Prac. 497; Merrill on Mandamus, §§ 42,
In Gow v. Bingham et al., supra, the court said:
“In the absence of special statutory authority, a writ of mandamus only lies to compel one to do what ought to be done in the discharge of a public duty, and not to undo what is improperly done, even though it may have been done under the color of performance of public duty.” 57 Misc. Rep. 75, 107 N. Y. Supp. 1018.
Nor will mandamus issue against an officer, after the expiration of his term of office, unless the power and the duty to act still continue. 19 Am. & Eng. Ency. L. 763; 18R. C. L. pp. 120, 121.
Concurrence Opinion
(specially concurring). In my opinion the principal question presented is whether the trial court properly issued the writ of mandamus. I am of the opinion that the writ was properly issued.
