56 Neb. 82 | Neb. | 1898
From January, 1891, to January, 1895, Eugene Moore was auditor of public accounts of the state of Nebraska; and during his term of office he collected from various insurance companies about $25,000, being fees which the law required of insurance companies doing business in the state. Moore converted the fees so collected to hi 8
1. The record presents two questions, one of which is: Did the law authorize or make it the duty of the auditor to collect these fees? The district court held that it did not, and upon that theory released the auditor’s sureties. By section 32, chapter 43, Compiled Statutes, which went into effect in 1873, every insurance company doing or desiring to do business in the state was required to pay for the privilege of transacting business certain enumerated fees. This section of the statute further provided that the required fees should be paid to the auditor, and should “go to the auditor;” that is, become his property, as a perquisite of his office. In November, 1875, section 24, article 5, of the present Constitution took effect; and this provided that the auditor should not receive to his own use any fees, “and all fees that may hereafter be payable by law for services performed by an officer, provided for in this article of the constitution, shall be paid in- advance into the state treasury.” The state caused Moore to be- indicted for embezzlement for converting to his own use the fees sued for herein. He was convicted, and prosecuted error to this court. (See Moore v. State, 53 Neb. 831.) And, though the court was divided on the question as to whether the judgment of conviction for embezzlement should stand, it ivas the unanimous opinion of the court that the constitutional provision just quoted not only prohibited the auditor from receiving the insurance fees to his own use, but prohibited him from collecting those fees; that the only officer authorized to receive such fees was the state treasurer. The majority of the court was therefore of opinion that the judgment of conviction for embezzlement was erroneous, because the auditor, in' collecting the insurance fees,
2. A second question presented by the record is whether the sureties are estopped from interposing the defense that the auditor was neither authorized nor empowered by law to collect the insurance fees which he did collect and embezzle. The attorney general insists that, if Moore is estopped, his sureties are. Conceding, without deciding, this proposition, we state the position of the attorney general by a quotation from his brief: “We believe that the authorities are practically unanimous in holding that an officer who has received money under and by virtue of a statute cannot be heard to question the validity of that statute when called upon to account for the money thus received.” The argument is that the auditor, having demanded of the insurance companies the payment of the fees which the law required them to pay, and having collected these fees, is estopped from saying that the adoption of the constitution of 1875 repealed said section 32 of the statute which authorized him to collect these fees. In support of his contention the attorney general cites us, among others, to the following cases: Chandler v. State, 1 Lea [Tenn.] 296; Village of Olean v. King, 116 N. Y. 355; Swan v. State, 48 Tex. 120; Morris v. State, 47 Tex. 583; Waters v. State, 1 Gill. [Md.] 302; Commonwealth v. City of Philadelphia, 27 Pa. St. 497; Middleton v. State, 120 Ind. 166; Hoboken v. Harrison, 30 N. J. L. 73; Ferguson v. Landram, 5 Bush [Ky.] 237; Mississippi County v. Jackson, 51 Mo.
The judgment of the district court is
Affirmed.