Commonwealth v. Godshaw

• Decision Date: 03 December 1891
• Citation: 92 Ky. 435,17 S.W. 737
• Parties: Commonwealth v. Godshaw et al., (four cases.)
• Court: Kentucky Court of Appeals

17 S.W. 737

92 Ky. 435

Commonwealth v. Godshaw et al., (four cases.)

Court of Appeals of Kentucky.

December 3, 1891

Appeals from circuit court, Franklin county. Appeals from circuit court, Jefferson county. Reversed.

"To be officially reported."

Actions by the state against Charles Godshaw and his sureties as trustee of the jury fund, to recover for interest received by him on deposits of public moneys. Defendant had judgment, and plaintiff appeals.

Pryor J.

The state brought two actions in the Franklin circuit court against Charles Godshaw and his sureties, on his official bond, as the trustee of the jury fund for Jefferson county. The court was sitting as the fiscal court of the state, and the commonwealth was seeking to recover moneys, as alleged that had been collected by Godshaw as trustee of the jury fund, and had not been paid over. The court below adjudged that the commonwealth failed to state a cause of action, and dismissed the petitions. Upon the dismissal of the petitions Godshaw, the trustee of the jury fund, there being money in the hands of the clerk of the Jefferson circuit court belonging to the fund, moved that court to require this money to be paid over to him, claiming that the act authorizing the clerk to pay the sum left after paying the trustee of the jury fund a sum sufficient to pay the jurors into the treasury of the state was unconstitutional. There were two motions, one at each settlement, made by the trustee, and both sustained, and the money directed to be paid over to him. From the judgment on the two motions, rendered in the Jefferson circuit court, and the judgment dismissing the two actions in the Franklin circuit court, the commonwealth has appealed. The four appeals will be considered together, as they involve the same question.

During the period Godshaw, the appellee, was trustee of the jury fund, he collected and received large sums of money as such and, when collected, would deposit the funds in bank or some other safe depository, and realized, in addition to his commission, 3 per cent. interest on this money. He settled his accounts regularly, and at the time required by law, and made his payments to the auditor in the same manner, but failed to account for the interest received on the deposits made by him. To recover this interest is the object of the two actions in the Franklin circuit court, and the question we shall first consider on this appeal is his liability for this interest up to the time the law was changed under which the clerk was required to pay the money into the treasury after paying to the trustee of the jury fund a sum sufficient to pay the jurors. This change in the law was made to take effect from the 14th of September, 1886. Should Godshaw be made liable for this interest received by him from his qualification in 1880 up to the change of the law made in September, 1886? It is conceded in argument, and in fact admitted in the pleadings, that his settlements were regularly made, and that he paid into the treasury at the stipulated periods required by the statute all the money that was in his hands but the 3 percent. received on the deposits, less his commission. The trustee of the jury fund is a public official, required to be appointed by the circuit court of each county, holding his office for four years and until his successor is qualified. He is required to give bond, with security, that he will discharge the duties of his office, and account for and pay over all public money in his hands. Chapter 62, art. 6, § 2, Gen. St. He is required to collect fines and forfeitures and other sources of revenue that are to be applied to the payment of jurors by law; to settle with the auditor, and pay the balance in his hands at the period fixed by law. That he is a public officer, charged with the collection of public dues, is a conceded fact. It is claimed by the commonwealth that his relation to the state is similar to that of a private trustee, and subject to the same rules of law, and that, where he makes profit on the fund in his hands, he should be held to account for it in the same manner. There is a plain distinction between the liability of a trustee, charged with the control of private property for the benefit of others, and public-officers, who are charged with the duty of collecting the public moneys. If the trustee of property for the benefit of others loses the estate or the money, he is not liable for the loss where it appears that he has exercised prudent care in preserving it. If it is money, and kept in a safe or other proper place for the time being, and is stolen without any fault on the part of the trustee, he is not responsible; but in the case of a public official, whose duty is to collect and receive money, (unless he is required by law to place it in some safe depository as the money of the state,) if the money should be stolen or lost his plea of the greatest care and diligence in its preservation constitutes no defense. He becomes liable for the loss and must account for it. To hold that the specific money vested, as soon as it reached the trustee's hands, in the state, would be to make his plea of care and diligence a sufficient defense; and to adopt such a rule would enable corrupt public officials intrusted with the collection of public money to rob and defraud the state at their will and pleasure. We find no provision that this money shall be treated as the money of the state; nothing is prescribed as to the mode of keeping it, or the place of depositing it.

Money paid into the treasury becomes the money of the state because it is required to be paid into the treasury as such; and, the law requiring the money to be deposited in certain banks when the treasurer...