138 Ky. 735 | Ky. Ct. App. | 1910
Opinion ok the Court by
Reversing.
Tlie appellant, Walters, succeeded the appellee, Dorian as treasurer of tlie city of Paducah, a city of the second-class, and brought this action against Dorian on Ms bond ■ as treasurer to recover $44,-790.86, alleging that there was in the hands of Dorian as treasurer this amount of money which he had wrongfully failed to pay over to his successor in office. He also joined as a defendant the Citizens’ Savings Bank of Paducah, and charged as to it that it was the depository selected by Dorian in which to deposit funds that came into Ms hands as treasurer, and that there was in its custody as such depository the amount sought to be recovered. Dorian and the bank filed a joint answer in two paragraphs. In the first, they traversed the averments of the petition, and in the second set up, in substance,' that the
Erom a consideration of the record and the briefs of counsel, it appears that the rights of the parties depend upon the proper construction of certain sections of the Kentucky Statutes, to which we will presently call attention; it being the contention of Walters that all funds due the city should be paid to the treasurer, and that he as the successor of Dorian was entitled to have turned over to him any fund in possession of Dorian at the time he surrendered the office. On the other hand, it is the contention of Dorian and the Citizens’ Savings Bank that the fund in controversy belonged to the sinking-fund of the city, and, as it was deposited by the commissioners of the sinking fund in the bank, it should remain there to the credit of that fund until withdrawn upon the orders of the commissioners, to be applied to the purposes for which the sinking fund was created, and that Walters as treasurer had no right to the custody or control of it.
Section 3132 of the Kentucky Statutes reads: “The treasurer shall give such bond and receive such salary as the general council shall by ordinance provide. In addition to such other duties as may be required herein, or as may be provided by ordi
It is provided in section 3190 of the Kentucky Statutes that: “The mayor, and-president of the board of aldermen, and president of the board of councilmen, shall constitute the commissioners of the sinking fund. It shall be their duty to see ihat at all times the proper amount of money to pay the principal and interest of the bonded indebtedness of the city, as such may mature, is provided in due time, and preserved excliisively for the payment of said liabilities.
“Sec.'3191. It shall be the duty of the general council to levy annually a tax for sinking fund purposes upon all property returned by the board of equalization as subject to taxation for municipal purposes, sufficient in amount to pay interest on the bonded indebtedness of the city, and which, by accumulation, shall be sufficient to pay the principal of such indebtedness as it may mature.
“Sec. 3192. All money, bonds and securities belonging to the sinking fund shall be kept in a separate account, and such money, bonds and securities shall only be paid out or disposed of by the order of the commissioners of the sinking fund, and in case of money upon a warrant signed by the city clerk, countersigned by the auditor and approved by the mavor.”
Sections 3193, 3194, and 3195 of the Kentucky Statutes also relate to the duties of the sinking fund commissioners, but a recital or consideration of them is not necessary to the disposition of the question before us.
As the statute gives to the treasurer the right to select the city depository, it follows that he has the right at any time to change the depository, and, of course, the right to remove the funds .deposited by him, whether it belongs to the sinking fund or any
And when the city treasurer desires to remove from cue depository to another funds to the credit of the sinking fund, the sinking fund commissioners should s’gn the necessary warrant to enable him to do so. As the city treasurer is liable upon his bond for all moneys that come into his hands, no matter from what source or to what fund it belongs, it is right and proper that he should have the right to select the bank in which to place it. The reasonable meaning and construction of the various sections of the statute is that the funds shall at all times be in the control of the city treasurer, as well as in the actual possession of the city depository, so that it may be protected by the bond required to be executed by each of them.
Upon a return of the case, a judgment should be entered awarding to Walters as city treasurer the right to withdraw from the Citizens’ Savings Bank the funds in its possession that were placed there to the credit of the sinking fund, and that had not been paid out for the use of the sinking fund, to the end that he may place them in the city depository selected by him, if it has executed the bond required by the statute.