In re State Treasurer's Settlement

• Decision Date: 18 March 1897
• Citation: 51 Neb. 116,70 N.W. 532
• Parties: IN RE STATE TREASURER'S SETTLEMENT.
• Court: Nebraska Supreme Court

51 Neb. 116

70 N.W. 532

IN RE STATE TREASURER'S SETTLEMENT.

Supreme Court of Nebraska.

March 18, 1897.

Syllabus by the Court.

1. The rule is well settled that where authority is conferred by law upon three or more persons to execute a public trust or agency,and, in the execution thereof, all are assembled to deliberate, or had notice and opportunity to be present, the act of a majority is binding, unless the statute expressly requires the concurrent action of all.

2. To constitute a bank a state depository of public funds, it must give a bond for the safe-keeping and payments of such deposits and the accretions thereof, conditioned as required by law, and approved by the governor, secretary of state, and attorney general, or any two of them, where all were present and conferred upon the subject.

3. The depositing by a state treasurer of public funds in a state depository bank in excess of one-half of the amount of the penalty of the bond given by said bank will not have the effect to release either the principal or sureties from their obligation to repay the moneys deposited to the amount of 50 per centum of the bond and the accretions thereof.

4. A deposit of public moneys by a state treasurer in a legally constituted depository for public funds, in compliance with the provisions of the depository law, is in substance and legal effect a loan of the moneys so deposited.

5. Public funds so deposited and remaining in a state depository at the termination of the office of a state treasurer he is not required to withdraw therefrom, and physically deliver the possession thereof to his successor in office.

6. The state depository law is not amendatory of subdivision 8, § 2, art. 4, c. 83, Comp. St., in such a sense as to render it inimical to section 11, art. 3, of the constitution.

Submission of controversy between J. S. Bartley and J. B. Meserve to the supreme court.

John H. Ames, for relator.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen. for respondent.

NORVAL, J.

This is a submission to this court without action, under the provisions of section 567 of the Code of Civil Procedure, upon an agreed statement of facts, accompanied with the necessary affidavit of merit, of a controversy between J. S. Bartley, late state treasurer, and J. B. Meserve, his successor in office, to determine matters of difference relating to the settlement between the outgoing treasurer and the incoming officer. The stipulation of facts discloses that, at the expiration of said Bartley's term of office, certain of the current funds belonging to the state were on deposit in a number of state and national banks, all but four of which then, as well as at and prior to the depositing of the moneys therein by said Bartley, it is conceded, were duly constituted state depositories, under and in pursuance of the provisions of the act of the legislature entitled “An act to provide for the depositing of state and county funds in banks,” the same being chapter 50, Laws 1891 (page 1036, Comp. St. 1895); that the other four banking institutions doing business within the state, to wit, First National Bank of Plattsmouth, First National Bank of Lincoln, First National Bank of Greenwood, and the Buffalo County National Bank of Kearney, for the purpose of complying with the provisions of said law, and constituting them state depositories to hold state moneys, each had given to the state a bond in due form, which had been approved by the secretary of state and attorney general alone, and not by the governor, although he was present at the time the decision to approve said bonds was made; that said Bartley deposited, in each of certain of the state depositories which had given bonds as required by law, more than 50 per centum of the amount of the bond given by it, and that said Bartley refuses to withdraw from each and all of the several state depositories, and physically deliver to said Meserve, any of the current funds of the state on deposit therein.

The following questions are presented for our consideration and adjudication: (1) Is a bond conditioned and signed as by law required, which has been approved by the secretary of state and attorney general alone, and afterwards deposited in the office of the auditor of public accounts, sufficient to constitute the bank giving such bond a state depository, within the meaning of the act to which reference has been had, or is the approval of the governor indispensable to the validity of such bond, he having met with the secretary of state and attorney general for the purpose of considering, and did consider, such bond, and was present when the decision to approve the bond was reached, but dissented therefrom? (2) Did the fact that said Bartley deposited in a lawful state depository moneys of the state in excess of 50 per centum of the penalty of the bond given by such bank release the principal or sureties on said bond as to the 50 per centum thus deposited? (3) Are the current funds duly deposited by a state treasurer, in accordance with law, in regularly constituted state depositories, and which remained on deposit therein at the time of the expiration of the term of such officer, to be considered and regarded as in the state treasury, in such a sense as that the said funds are not required by law to be produced by the outgoing treasurer, and the physical possession thereof delivered to his successor in office? Attention will be given to these propositions in the order in which they have been stated.

Section 1 of the legislative enactment already mentioned, known as the “Depository Law,” provides, inter alia, for the depositing, and keeping on deposit, in banks of approved standing, moneys belonging to the several current funds in the state treasury. Section 3 declares that, “for the security of the funds so deposited under the provisions of this act, the state treasurer shall require all such depositories to give bonds for safe-keeping and payments of such deposits and accretions thereof, which bond shall run to the people of the state of Nebraska, approved by the governor, secretary of state, and attorney general.” The section prescribesthe conditions which the bond shall contain, and sets out the form of the bond, after which the section reads thus: “The treasurer shall not have on deposit in any bank, at any time, more than one-half of the amount of the bond given by said bank; said bond shall be deposited with and held by the state auditor.”

It will not escape notice that, by the portion of the section above quoted, the governor, secretary of state, and attorney general, are the three persons designated by their names of office to approve the bonds of state depositories, and that, as to the bonds given by four of the banks claimed to be such depositories, but two of the three officers designated in the law joined in their approval. The present state treasurer insists that it was indispensable to a valid execution of the authority conferred that all three of the officers named should act together, and all concur in exercising such power. It is a familiar rule of law, and one which has been applied in numerous cases, that where a body or board is constituted by law to decide upon matters of public interest, in the absence of a provision to the contrary, a majority of its members may act, if all were present and consulted, or at least were duly notified of the time and place of meeting. In such case the act of the majority is the act of the body. People v. Coghill, 47 Cal. 361;State v. Trustees of Wilkesville Tp., 20 Ohio St. 288; Ex parte Rogers, 7 Cow. 526;State v. James, 4 Wis. 408; 19 Am. & Eng. Enc. Law, 465, and numerous authorities there cited. In note 1 on page 466 of the last authority it is said: “The dispatch of public business is not to be prevented, and the interest of the public is not to suffer, because one or more members, after being notified, are unable to attend. If all have been duly notified, it is a meeting of all the persons; and, if a majority of the whole number attend, it is competent for that majority to do any act or exercise any power conferred by law to the body collectively. As respects those who cannot, who neglect to, or who refuse to attend, it is the same as if they had attended and dissented from the act of those who were present.” The same doctrine has been recognized and applied in People v. Peters, 4 Neb. 254; Hopkins v. Scott, 38 Neb. 661, 57 N. W. 391; and State v. Bemis, 45 Neb. 724, 64 N. W. 348. In the case last cited, there was under consideration section 145, c. 12a, Comp. St. 1895, entitled “Cities of the Metropolitan Class.” This section provides for the appointing of a board of fire and police commissioners for each city of the metropolitan class, “by the governor, commissioner of public lands and buildings, and attorney general, sitting as an appointing board, of which the governor shall be ex officio chairman.” In pursuance of said provision, the last two officers named, sitting as a board (previous notice of the meeting having been given to the governor, but who refused to attend), appointed three fire and police commissioners for the city of Omaha. This court held the action of the two state officers as binding as if each member of the board had participated and joined in the making of the appointment. The present chief justice, in the course of his opinion in that case, observed: “It is argued that the concurrent action of the three state officers named in the act is essential to a valid appointment thereunder; hence the selection of the new board at such meeting, in the absence of the governor, is without authority and void. But to that proposition we cannot give our assent. On the contrary, it is clear that the presence and participation of the governor was not indispensable, he having been notified of the meeting, and requested to attend. The action of the majority is, under the circumstances, the action of the...