55 P. 858 | Idaho | 1898
Lead Opinion
(After Stating the Facts.) — The contention of the respondent that public money deposited in a bank on general deposit, by a public officer, in violation of law, becomes the estate and property of the bank, the owner of the money so
“Sec. 6975. Each officer of this territory, or of any county, city, town, or district of this territory, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:
“1. Without authority of law, appropriates the same or any portion thereof to his own use, or to the use of another; or,
“2. Loans the same or any portion thereof; or, having the possession or control of any public money, makes a profit out of, or uses the same for any purpose not authorized by law; or,
“3. Fails to keep the same in his possession until disbursed or paid out by authority of law; or,
“4. Deposits the same or any portion thereof in any bank, or with any banker or other person, otherwise than on special deposit; or,
“5. Changes or converts any portion thereof from coin into currency, or from currency into coin or other currency, without authority of law; or,
“6. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same; or, “7: Fraudulently alters, falsifies, conceals, destroys, or obliterates any such account; or,
“8. Willfully refuses or omits to pay over, on demand, any*329 public moneys in his hands, upon the presentation of a draft, order, or warrant drawn upon such moneys by competent authority; or,
“9. Willfully omits to transfer the same, when such transfer is required by law; or,
“10. Willfully omits or refuses to pay over to any officer or person authorized by law to receive the same, any money received by him under any duty imposed by law so to pay over the same; is punishable by imprisonment in the territorial prison for not less than one nor more than ten years, and is disqualified from holding any office in this territory.
“Sec. 6976. Every officer charged with the recipt, safekeeping, or disbursement of public moneys, who neglects or fails to keep and pay over the same in the manner prescribed by law, is guilty of felony.
“Sec. 6977. The phrase 'public jnoneys/ as used in the two preceding sections, includes all bonds and evidence of indebtedness, and all moneys belonging to the territory, or any city, county, town, or district therein, and all moneys, bonds, and evidences of indebtedness received or held by territorial, county, district, city or town officers in their official capacity.”
The former treasurer, C. Bunting, had no authority to deposit public money in the bank of C. Bunting & Co., bankers, on general deposit. The bank had, and was charged with express notice that the state treasurer had, no authority to make such general deposit. More than that; the bank, nor the officers of said bank, after receiving said money, could mingle it with the funds of the bank, or loan it, or make profit out of it, or appropriate it, without committing a felony. If a bank receives public money, it must do so on special deposit. It must keep such money separate from its own funds. It must not use it or loan it. If any of these acts are committed, the persons or officers who participate are guilty of a felony. Now, it must necessarily follow that, the state treasurer, having no authority to deposit public money with a bank on general deposit, but he being authorized to deposit such money with a bank on special deposit, the instant that C. Bunting & Co. received public money from the state treasurer, it did so
The respondent insists that the motion for nonsuit was properly granted on the ground of variance between the allegation and proof. It is true that the evidence shows that some or all of the money in question was deposited with C. Bunting & Co., bankers, by the former treasurer, and not by the present one. In this respect the petition is defective. But such defect is cured by the allegations of the answer, wherein it is alleged that such money was placed in said bank by C. Bunting, former treasurer, who gave his check therefor to Treasurer Storer. The judgment- appealed from is reversed, and the cause remanded to the district court, with instructions to enter judgment in favor of the state as demanded in the petition, and to direct the respondent, C. E. Thum, as receiver, to pay the said judgment out of assets of the said C. Bunting & Co. in his hands before any distribution of such assets among the creditors of said banking corporation. Costs of appeal to be paid out of funds in the hands of said receiver.
Rehearing
ON REHEARING.
— A rehearing is asked in this ease principally upon the ground that the respondent had no opportunity of presenting any evidence in the court below. It seems to us, this claim comes a little late. The record shows that when the
“I am the receiver in the cause of First National Bank of Pocatello v. C. Bunting & Co., Bankers, and have been since February 15, 1897, and prior to that time had been, an employee in the bank of C. Bunting & Co. Have charge of the books of that bank. C. Bunting was state treasurer of Idaho prior to the beginning of the term of office of George H. Storer, the present treasurer. In January, 1897, Bunting, as treasurer, turned over to Storer, as his successor, the office of state treasurer. Part of the state money was on deposit in the Capital State Bank of Boise City, and part in the Bank of C. Bunting & Co., Black foot. The books of C. Bunting & Co., bankers, show that there was deposited to the credit of George H. Storer, as state treasurer, on January 6, 1897, the sum of $32,702.58, and that afterward there was deposited by said treasurer the sum of $8,477.27, and that there was paid out upon the checks of the treasurer and for stale warrants all of said amounts except the sum of $12,683.93, shown by the books to be due, but which has been reduced by reason of certain interest amounts paid out, and not determined at the time the bank was closed, but which I have, as receiver, since ascertained to be the sum of $11,022.38.
“The account of C. Bunting, as state treasurer for 1897, as shown by the book of original entries, in which said account was kept, is as follows:
*333 
“The account of George H. Storer, as state treasurer, as shown by said book, is as follows:
“ (To the introduction of said accounts as evidence the defense objected on the grounds that it was incompetent, immaterial, and irrelevant. Objection overruled, and exception taken.)
“The book from which these accounts are taken is the general ledger of the bank, which is a book of original entries, and the only book of the bank which shows accounts. The entry on the Storer account of $32,702.50 represents that part of the fund which was on deposit in the bank at Blaekfoot, turned over by C. Bunting to Storer at the time Bunting turned over the office of state treasurer. This sum was turned over by means of a check drawn by C. Bunting, state treasurer, on C. Bunting & Co., bankers, and payable to George H. Storer, treas*334 urer. The other entries in the Storer account represent checks turned into the bank by Storer. It was the custom in the bank to credit the checks received, when they were considered good, at the time of their receipt. There is nothing in the bank to show any of these' cheeks were dishonored, and, as a matter-of fact, they were all paid.”
The testimony of the respondent was the only oral proof offered in the case, and, together with the exhibits produced by him, constitute all the evidence in the record. After the evidence was closed, the respondent moved for a nonsuit, which was granted.
How can the respondent claim that he had no opportunity to-present any evidence? While respondent was upon the stand he was subjected to a very rigid cross-examination by his own attorney, during, which, in answer to certain interrogatories propounded to him, he stated, in substance: That on the sixth day of January, 1891, the amount of money in the bank of C. Bunting & Co. was about $11,000; that, up to a short time before-failure, the daily balance averaged about $10,000. The contention of respondent is that there never was anjr money deposited by Storer; that he only deposited checks. These checks were-under the provisions of section 6911 of the Revised Statutes' of Idaho, “public moneys,” and as such were deposited by the treasurer, Storer, in the bank of C. Bunting & Co., and were so received by said bank, and were made available by the treasurer in paying the indebtedness of the state; $41,410.04 was so deposited by the treasurer, and of this amount, according to the testimony of respondent, all but $11,022.38 was checked out by the treasurer, and yet counsel contends that no m-oney was ever deposited. This contention seems to us a non sequitur. The law made the checks of Bunting or anyone else in the hands of the treasurer “public moneys.” As such they were deposited by the treasurer, and were checked against by him in paying liabilities of the state, and all such cheeks were paid. Respondent appears to lay considerable stress upon the fact that the-average daily balances in the bank from January 6th to the time of the failure were only about $10,000. While not as com versant with the details of the banking business as the learned
We are unable to see that any different result could be reached in this ease from further argument. In fact, the question in this case does not seem to be so much one of fact as the application of the law to facts about which there is no contention. Counsel for respondent contends that the deposit of the checks by Storer was not a deposit of money such as would create a trust fund on the part of the state. With this contention we cannot agree without abrogating the provisions of our statutes. The plaintiff would, we think, have been entitled, on motion, to a judgment on the pleadings in this case. The depositing of the checks by Storer is admitted by the answer, and, said cheeks being “public moneys” in the hands of said Storer, and,
Dissenting Opinion
Dissenting. — Bespondent contends, in his petition for a rehearing, that the only question of law presented on appeal was: Did a trust relation arise from a deposit of money in the Bunting bank by Storer, as state treasurer, and which had come to the receiver’s hands, which would allow the state to pursue and take it? It is contended that it never was claimed that a deposit by Storer’s predecessor in office, Bunting, could be shown, or was shown, as a basis for recovery in this action, or that there was any admission in respondent’s answer that would reheve the appellant from proving his allegations. That it appeared from the opinion of the court that an actual deposit of money belonging to the state was a necessity to the state’s recovery. That as there was no proof of Storer’s having made any deposit, the court then considered whether recovery could be had upon the evidence or admissions that Storer’s predecessor had deposited money there. And in support of this contention quotes from the opinion the following: “The respondent insists that the motion for nonsuit was properly granted on the ground of variance between the allegation and proof. It is true that the evidence shows that some, or all, of the money in question was deposited with C. Bunting & Co., bankers, by the former treasurer, and not by the present one. In this respect the petition is defective. But such defect is cured by the allegations of the answer, wherein it is alleged that such money was placed in said bank by C. Bunting, former treasurer, who gave the check therefor to Treasurer Storer.” And contends that the court misapprehended petitioner’s position in this, to wit, that it is not a variance between allegation and proof, but that it is a clear failure of proof. Also contends that the court mistakes the fact when it says: “It is true that the evidence shows that some, or all, of the money in question was deposited .... by the former treasurer, and not by the present
In Bagley v. Eaton, 10 Cal. 149, it is held as follows: “It is not our practice to direct the entry of a judgment in the court below in actions at law, except when the facts have been found by the judge who tried the cause, or by the special verdict of a jury, or when, from the character of the action or pleadings, one of the parties is entitled to judgment without proof.” In Cooper v. Shepardson, 51 Cal. 300, the court reversed the case, but declined to order final judgment, saying: “It may be that upon a new trial a different case will be made out.” Hayne, in his work on New Trial and Appeal (section 296), holds that, when all of the material facts are established in the court below, the supreme court, in reversing a judgment, may, in its discretion, direct final judgment. In the case at bar the material facts were not found by the court below. Judgment of nonsuit was entered against the plaintiff at the close of its evidence. The court found no facts upon which a judgment could be based in favor of the state; and in that ease this court must find such facts in order to direct a judgment against the defendant, who is respondent here. To do so would be to exercise original, rather than appellate, jurisdiction. Of course, a different question would be presented if, under the pleadings,
The opinion of the court is based on the ground that Bunting, Storer’s predecessor, deposited state money; and that conclusion is reached by holding that the answer cures a defective allegation in the complaint. On a careful re-examination of the pleadings, I am of the opinion that the answer does not admit that the predecessor of Treasurer Storer deposited said money in said bank. The admission that said bank-books show credit to said predecessor is not such an admission as would warrant the court in finding that said Bunting did make a deposit of state money when such deposit is specifically denied by the answer. The averment is that there was a credit on the books of the defendant bank to C. Bunting, as state treasurer, of a considerable sum of money. That admission is not sufficient to hold that Bunting deposited therein over $3.3,000 of the state’s money, or of any amount whatever, without proof.
While it is true the evidence introduced by the state tends to show that Bunting, as state treasurer, had a credit in said bank, and of the amount thereof, the defendant had a right, under his answer, to show that said credit was a fictitious one, or that no public money had, as a matter of fact, been deposited in said bank. This is not an action between the Bunting Banic-ing Company and the state, but against the receiver, who represents all of the creditors of said bank; and the creditors, through the receiver, have the right to make any legal defense that will defeat the state’s claim.
This court has in this case only appellate jurisdiction, and, as the court below has found no facts on which a judgment can be based, this court cannot usurp the jurisdiction of the nisi prius court, and in the first instance find facts on which to base a judgment. I do not think the pleadings are such as would warrant a judgment on them without proof. The cause should have been remanded, and the receiver given an opportunity to present his defense.
While it is true the receiver, as a witness for the plaintiff, testified that said ledger was a book of original entry of said
The opinion of the majority of the court on the petition for a rehearing presents an additional reason for an opinion in favor of the state that was not suggested in oral argument or by brief on the hearing of the case, and that is that the checks .deposited by Storer were “public money,” under the provisions rof section 6977 of the Revised Statutes. That point was not : mooted on the hearing of this ease, and it is only right and fair ■.to the respondent that he should be heard upon points on which dhe decision rests. If it be said the cheek was public money, and must be considered such in this case, it may be that the receiver will be able to return said cheek — “public money” — to the plaintiff, and thus return to the state the identical “public money” deposited by Treasurer Storer; and, if the state gets the identical “public money” which it deposited by its treasurer, it ought not to complain.
The circumstances' under which the case was presented to this court were most unfavorable, and the-importance and far-reaching effect of the decision demand that the parties should be fully and fairly heard, and I think a rehearing should be granted.
