*1 which, by tendency jury, structions have to restrain such action given. They instructions should have been these given appellants. covered other instructions Finding supported

The verdict is the evidence. no error CC., record, judgment Henwood, is affirmed. Davis and concur. adopted foregoing by Higbee,

PER opinion C., CURIAM: The judges opinion as the All of court. concur. Gentry, North Todd Attorney-General, Appellant, State ex rel. County, v. Cantley, of St. L. Louis S. Commissioner (2d) Finance, et al. 14 W. 597. S. Two,

Division March 1929. *2 Janes, Assistant Attorney-General, and David Shartel, P. Stratton Stockard and Howard for Fenton T. appellant; Attorney-General, Jennings counsel. respondents; W.

Ralph Haley Harry Baxter for & and John H.

CXastlen counsel.

33 by Missouri at the the State of DAVIS, proceeding is a C. This Deputy Commis- the before Attorney-General, filed relation Page himby Bank allowed and charge of the sioner of Finance St. Court of to the Circuit only, and certified as a common claim 11719, 1919, de- to Revised Statutes County, Section Louis under payment assets of from the State termine the to of deposited trial therein. The of the amount the defunct bank to general a claim. allowed it as priority and court denied the of claim appealed. The State finding that dispute. They warrant facts are not in The Becker, registration and Secretary State, collected Charles U. of through vehicles, daily, his accumulated for which license fees motor city sum St. The total representative in of Louis. accredited deposits deposited made at times $45.579.49. and the were various was 23, April Page The Bunk into 1927. went between March and Ex. liquidation page 79', Laws 1st on 1927. Section May by Seas., appointment Secretary provides of of State for the vehicles, pleasure at and under commissioner of serve his motor to direction, general supervision and of act Section said his prescribes registration motor "all vehicles fees provided payable trailers herein made to the state treas for shall be by promptly urer and to transmitted the commissioner the state fund,” deposited treasurer and the credit of the road state provides: provided further act "All other in this shall fees for payable promptly made to the state transmitted treasurer and commissioner to the state treasurer and to the credit of Secretary state road fund.” impracticable, It was deemed so the daily says, messenger due to hire and the want of time to list therefor, persons to whom licenses issued and received fees provide money daily. data and forward the State Treasurer Thereupon situation, he consulted bankers to the the scheme registration of depositing money in various from license fees banks was devised, to be followed at intervals reasonable State, Secretary of upon completion drawing upon lists, delivering funds in the banks and Treasurer checks Page drawn to his order. The St. Louis solicited appointment depository, accordingly as such which made. was Bank, together six sure *5 contract, deposit, ties. executed a and- in bond of which recited the Secretary tention fees; of the of State to collect automobile license Page agreement the depository selection of the Bank to as and its pay two uer per cent interest annum on current automobile deposits; less, with said more deposit $30,000, and that or it was intended to' the effect that said bank. to Then followed the recitals of the bond Becker, Secre bank to firmly said are held and bounded sureties safely tary the bank State, $50,000, of the of on in sum conditioned Becker, by Secre keeping promptly paying when demanded out tary Missouri, authority, said funds of other lawful State of or interest thereon. every part deposited with said bank thereof Secretary by The * commissioner selected1 * * the * State, deposited pursuant bond, of in said contract bank to the money,aggregating $45,579.49 bank’s of of at the the time various- sums liquidation, part paid inuredto the no of has been or has ever which was benefit the account referredto of The of Missouri. Becker,Secretary maintained the in U.Charles of State. name of representatives deposit, prior It understood, by was to the theofficersand bank, deposited1, of the derived the funds to be from the Louis,belonged licenses, city of motorvehicle issued of St. in collection the property Page andwas the Bank of the State.The was one to of money Secretary a of number in which the of to Statecaused banks processtransmitting Treasurer, of theState the in it to because, said, impracticable as it it was to transmit as received. he transmitting Thebank instrumentality usedas in was an thus money. Treasurer, of State to executed checks the they protested liquidation. but were after bank into An the went assignment deposit Page the pleaded funds in was Bank of on the assignment appended petition written exhibit. was as an relating assignment question No to arises.The disclosesthat record May7, insolventand was on closedits doors consequence andas it ceasedto its do businessa.nd taken affairs charge liquidate in of Financeto its Commissioner assets andclose its affairsin accordance applicable question right the statutes thereto. I. The of of theStateto priorityto the fundsin the hands Finance'Commissioner presented. law, prerogative right is At common it wasthe sovereign priority payment fromthe assets against of an insolvent debtor unsecured general York, creditors.As is said in Marshallv. New 254 U. S. 1. c. 382: "The property debtor, was effective alike whether remained in the handsof placed possession person, or had been in the of a third or was legis." priority, however, cusiodiaThe State to undar law, question. representative commonbe- comesa moot sovereignty, Legislature, prerogative, of declaratory our has exercised its (Sec. 7212, of the common law. the enactmentof a statute Assignment: Prk~rity Right. any person "Whenever indehted theState solvent, any Missouri in- or whenever estate of deceased debtorin the hand.'~of theexecutors or administrators is insufficient

35 State of Missouri shall deceased, the debts due from the due established, as hereby extend priority shall and satisfied, first the be having pay to property not sufficient to in which a debtor well cases thereof, assignment in which voluntary or the all makes a his debts or debtor are absconding, and concealed absent effects of an estate bankruptcy act in an of law, of as to cases which process attached in shall Provided, nothing this article contained is that committed: as the United States be to with of construed interfere the sickness, expenses by law, payment of the last secured the or the of wages servants, medical attendance of for medicine and demands deceased, expenses.” during the last of the nor funeral sickness Respondents has waived its contend, however, that the State 307, Banking Company, 313 Mo. priority, to and cite Holland In re County v. United National Bank 702, 281 S. and Cook E. Rep. 2 445, 537, Sup. 561, as

States, 107 27 L. Ed. Ct. U. S. presented by respondents are for our postulates controlling. Three consideration. 1919, provides a II, 123, Revised Statutes Chapter First: Article custody in the of depositories in which funds of of selection method require- may deposited, among which is the Treasurer the State loss, against which statutes indemnify to the ment of securities priority by State. a waiver of the constitute 1919, 11714, 11691 Revised Statutes 11688, and Sections Second: banks, insolvent state regulating of affairs of administration the the unpaid State priorities including without therein designate specified contention, alleged, is which it also a deposits, which is waiver supra. supported States, Bank v. United National Cook 1919, is to 13345, Revised Statutes tantamount Third: Section adjusted audited, every waiver. It reads: “The amount of account State, I according provisions Article the of found to due the penalties thereon, is declared chapter, and interest II of this with the person charged' the same upon with be a lien the real estate of the to ’’ recovery thereof. be commenced for from the time that suit shall the paragraph foregoing in II. We have set forth the matter the respondents’ justification merely develop theory to of of the trial any in court’s decision. Whether there is substance by respondents seeking an affirmance theories advanced judgment adjudge, o f we not need postulate, State advances and briefs a which we consider determinative. general assignee

It is a rule of law of credi- that an for benefit every property subject tors takes an dis- insolvent debtor to subject abilitv to which it would' have been in the hands of the debtor principles himself. Equitable applied R. C. L. to 720.] deposits develop by registration the facts fees license for supervision motor vehicles collected under the direction and of part Bank. of tbe Secretary of a trust on tbe ex maleficio money source bank knew the question is no There comprehended and, perceived or not it, with whether it respect Sess., with Laws 1st Ex. of Section constraint prompt thereof payable and; fees made transmission charged constructively it imbued was Treasurer, a mere collector knowledge. such State was *7 extend a authority given him did not fees, nothing more. The fees to the deposit, promptly and transmit duty it was his under whose Treasurer, they payable were and to whom made Notwithstanding placed custody control and them. an statute Secretary part of State as to the de- intent on honorable posits, against law deposits such made the admonition and, illegal, deposits, and were knew the as the bank source of the Smith, it a deposited. became as fees v. trustee to the [Harrison 83 210, Rep. 571; Coates, 514; Page Mo. 53 Am. 88 Mo. Stoller v. 744, 5 Rose, Iowa, 296, 114, v. 130 106 N. W. 8 R. Ann. L. Cas. 886; (N. S.) Center, 51 Myers Clay A. v. Board Education of Kan. 87, 658, 263; Marquette 32 Pac. 37 Wilkinson, Am. v. 119 St. Mich. 413, 78 474, N. 43 840'; Bank, W. L. A. v. Midland R. 52 1, Neb. 71 1011, 484; W. 66 Am. St. Watts v. Commissioners N. (N. S.) of Cleveland 21 County, 231, 771, 95 16 Okla. Pac. L. A.R. 918; Ormsby Finney, 281 v. Fed. 840.] 1-laying IlL determined that the bank became a trustee relative deposited it, question to the fees the of State with

naturally ability (the arises as to the of the State cestwi que trust) to trace and follow trust funds converted intermingled by moneys the bank with other held distinguish in its coffers. Four classifications the rul ings subject. of the courts on the The interested will find an excellent treatise on the different rules Lawyers Reports 19160, page 21, sequ~& Annotated et While other jurisdictions greater degree, variate the rule in a or less Missouri proved follows the rule that> if a trust fund is to have been mass, wrongfully illegally mingled therewith, in a even though indistinguishable, may it be recovered and taken from the insolvent, ground into, estate of the on the it went increased chargeable and swelled the volume of the insolvent's assets> and it is against the insolvent estate to the amount of the converted fund as a preferred Draper, below, develops demand. Paul v. cited the difl legal illegal deposit. Smith, tinction between a and an IHarrison v. 219, Rep. 571; Ooates, 514; 83 Mo. 53 Am. Stoller v. 88 Mo. Evan gelical Synod Schoeneich, 652, 647; v. 143 Mo. 45 S. W. Pundmann Schoenich, 149, 1112; v. 144 Mo. 45 S. W. Tierman's Executor v. Security Assn., 135, 1072; Draper, B. & L. 152 Mo. 53 S. W. Paul v. 197, 77; Latakaw, 359, 158 Mo. 59 S. W. Tufts v. 172 Mo. 72 S. W.

37 642; 236 383, 291 Mo. S. W. 679; Co., Orr v. St. Louis Union Trust 733; Poplar 313 281 W. Millspaugh, Bank Bluff v. Mo. S. 706; 314 282 Millspaugh, Mo. S. W.

Federal Reserve v. 289 MeCallister, 814; 316 S. Trust v. Mo. W. Huntsville Bartlett rule, in connection Noel, Applying with v. Mo. Co. 749.] illegally deposited foregoing that Becker motor our determination Page its registration Bank to vehicle and license fees with the knowledge, promptly transmitting instead of them to State Treas urer, required, whereby as the statute the assets of said bank were augmented, deposits the amount of the made Becker increased $45,520.54 out the common payable extent of assets of Deputy Bank in the hands of Finance Commissioner preferred bank in $58.95 claim. Interest allowed the sum of protest deposit respect on fees of $47.76 fund and to dis checks, part money deposited consequent honored were no ly fund, cannot be included within the trust and the two items dis are allowed. statutes, We 11722, inclusive,

IY. think the Re Sections 1919, contemplate against vised that all Statutes claims a bank in *8 may liquidation filed with his the Commissioner of Finance, or deputy charge. original jurisdiction Whether he has sole hear claims, and determine [However, we need not determine. Sec. see VI, present Art. Constitution of In the instance the Missouri.] him, provisions claim with was filed and in with accordance Section Revised Statutes the claim of the State was approved by deputy heard and commissioner, and certified and presented to Circuit County Court of St. Louis for determination priority payment. as to While the claim filed with the commissioner general nature, must tend to show naturally its it is an informal matter. The jurisdiction commissioner was denied determine lodging priorities, power the statute in the circuit court. The power priorities equitable included of an nature. judgment It follows that the is reversed and the cause remanded directions,

to the Circuit Court St. Louis allow a preference claim of the State as against $45,520.54 or in the sum of the estate of the Bank. Higbee Henwood, CC., concur.

PER foregoing opinion CURIAM: The by Davis, C., is adopted opinion as the of the court. judges All concur.