People v. Bradford

• Citation: 22 N.E.2d 691,372 Ill. 63
• Decision Date: 04 October 1939
• Docket Number: No. 24994.,24994.
• Parties: PEOPLE, by BARRETT, Auditor, v. BRADFORD et al.
• Court: Supreme Court of Illinois

372 Ill. 63

22 N.E.2d 691

PEOPLE, by BARRETT, Auditor,

v.BRADFORD et al.

No. 24994.

Supreme Court of Illinois.

June 15, 1939.

Rehearing Denied Oct. 4, 1939.

Action by the People, by Edward J. Barrett, Auditor, against Ralph F. Bradford, former Director of the Department of Conservation, and another to recover for the named defendant's failure to pay fines, fees, and penalties into the state treasury. From a judgment for defendants, plaintiff appeals.

Reversed and remanded, with directions.

STONE and SHAW, JJ., dissenting.Appeal from Circuit Court, Livingston County; Clyde H. Thompson, judge.

John E. Cassidy, Atty. Gen. (Joseph A. Londrigan, of Springfield, and P. C. Otwell, of Belleville, of counsel), for appellant.

Hal M. Stone, of Bloomington, Adsit, Thompson & Herr, of Pontiac, and Dent, Weichelt & Hampton, of Chicago, for appellees.

JONES, Justice.

The People, by Edward J. Barrett, Auditor of Public Accounts of the State of Illinois, filed a complaint in the circuit court of Livingston county against Ralph F. Bradford, former Director of the Department of Conservation, and the National Surety Company, surety on his bond in the sum of $10,000, alleging that, as such director, Bradford had, on January 23, 1933, collected fines, fees, and penalties in the sum of $37,654.81, which he has not paid into the State Treasury, though it was his duty to do so within thirty days after receipt of same. The defendants answered, denying the principal allegations of the complaint, and setting up twelve special defenses. Plaintiff filed a motion to strike these defenses, and the motion was sustained except as to four of the defenses. Plaintiff elected to stand by its motion to strike and judgment was entered for defendants. This appeal followed.

The People have filed a motion to strike the statement, brief and argument of appellees for the reason that they have argued the defenses stricken by the trial court, and urge that these cannot be considered, on review, because appellees took no cross-appeal. They did assign cross-errors. Appellees have moved to strike this motion because a copy of appellant's motion and suggestions in support thereof were not served on opposing counsel at least twenty-four hours before the motion was presented for filing, as required by rule 49 of this court, Ill.Rev.Stat.1937, c. 110, § 259.49. Both occurred December 13, so the motion of appellees to strike the motion of appellant is sustained.

Moreover, it was unnecessary for appellees to cross-appeal in order to save for review all the defenses interposed in their answer. The judgment appealed from was for appellees, and no part of it was adverse to them. They were, therefore, in no position to prosecute a cross-appeal. Having obtained all the relief they deemed themselves entitled to, they may sustain the judgment upon any ground warranted by the record, though they may wish to show the court below erred in not giving it to them on different or additional grounds. Bullman v. Cooper, 362 Ill. 469, 200 N.E. 173; McCaskill, Civil Practice Act Ann.1936, (Supp.) p. 209. All of the defenses interposed related to the defense of estoppel, the ground on which the decision of the trial court was based. The refusal of the circuit judge to consider certain elements claimed to create an estoppel does not preclude us from considering them. We shall later discuss the acts which appellees urge create an estoppel against the State.

Bradford, as Director of the Department of Conservation, received from county, city and village clerks the proceeds of fees, fines and penalties collected by them pursuant to the Fish and Game Codes. He had a deposit account with the Livingston County National Bank at Pontiac, in the name of ‘Ralph F. Bradford, Director of the Department of Conservation.’ When this bank closed January 23, 1933, there was a balance of $37,654.81 in the account. The State brought suit against the receiver of the bank to establish a preferred claim on the theory of a trust ex maleficio. A consent decree was entered allowing a preferred claim of $3,000, which was all that could be traced, and the remainder as a general claim, on which dividends in the sum of $12,129.18 have been paid. This total of $15,129.18 was held by the trial court to be a good defense of part payment.

The rule is well established in this State that a public officer is liable on his bond for the loss of public funds coming into his hands by virtue of his office and deposited by him in a bank and lost through its failure, though the bank was reputed solvent, and nothing can relieve him of his obligation to safely keep and pay over such funds, but the act of God or of the public enemy. People v. West Englewood Trust & Savings Bank, 353 Ill. 451, 187 N.E. 525;Estate of Ramsay v. People, 197 Ill. 572, 64 N.E. 549,90 Am.St.Rep. 177;People v. McGrath, 279 Ill. 550, 117 N.E. 74; Oeltjen v. People, 160 Ill. 409, 43 N.E. 610;Thompson v. Board of Trustees, 30 Ill. 99. This is true even though the officer rightfully deposited the funds. A fortiori, the rule applies if, as contended by the People here, the deposit was wrongfully made.

The statute then in effect (Smith-Hurd Stat.1931, c. 120, § 142), provided: ‘The revenue for State purposes shall be collected in gold and silver coin, United States legal tender notes, current National bank notes and Auditor's warrants and in no other currency.’ The statute also provided (Smith-Hurd Stat.1931, c. 127, § 171), that every officer, department, etc., receiving money for or on behalf of the State ‘shall pay into the State treasury the gross amount of money so received without delay and not later in any event than thirty days after the receipt of same, without any deduction on account of salaries, fees, costs, charges, expenses or claims of any description whatever.’ Nowhere is any authority given the Director of the Department of Conservation to accept checks or drafts or to deposit them in a bank for collection. The State Treasurer may deposit State moneys only in banks approved as State depositaries, and then only when the bank shall have deposited securities with the State Treasurer equal in market value to the amount of moneys deposited. Ill.Rev.Stat.1937, c. 130, § 29. Bradford's duty was to collect the money from the county, city and village clerks and turn it over to the State Treasurer. It was no part of his duty to select a depositary for such funds. Town of Cicero v. Hall, 240 Ill. 160, 88 N.E. 476.

Appellees contend that section 31 of the Fish Code (Smith-Hurd Stat.1931, chap. 56) and section 40 of the Game Code (Smith-Hurd Stat.1931, chap. 61) impliedly authorized Bradford to accept checks and drafts, and, of necessity, to deposit them for collection, by providing that ‘county, city and village clerks shall not be permitted to make deductions from remittances sent to the department for either postage or for the cost or fees for drafts or money orders.’ These negative provisions cannot be held to have repealed, by implication, the express provision of the Revenue Act as to the manner in which revenue for State purposes shall be collected.

Appellees insist that the rule of absolute liability does not apply here for the reason that the State is estopped, by the acts of its officers, from asserting its rights against Bradford. The general rule in this State is that the doctrine of estoppel is not applicable to the State acting in its sovereign capacity. In People v. Brown, 67 Ill. 435, the People brought suit against the sureties on a sheriff's bond. Defendants claimed an estoppel, on the ground that because of a mistake of the Auditor in stating the sheriff's account, defendants were prevented from obtaining indemnity against the State. We held the defense of estoppel not available against the State and said: ‘Its rights, revenues and property would be at a fearful hazard, should this doctrine be applicable to a State. A great and overshadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine. If it can be applied in this case, where a comparatively small amount is involved, it must be applied where millions are involved, thus threatening the very existence of the government.’

In People v. Woods, 354 Ill. 224, 188 N.E. 369, 370, the defendant taxpayer had given the county collector two checks in payment of his taxes, but because of the collector's negligence they were not presented to the drawee bank until it had failed. We held the State was not estopped and said: ‘The general rule is that the neglect or omission of public officers cannot work an estoppel against the state (10 Ruling Case Law p. 705), and we can see no reason for departure from that general rule in this case.’ In People v. Illinois Women's Athletic Club, 360 Ill. 577, 196 N.E. 881, 882, we said that ‘public policy forbids the application of the doctrine of estoppel to a sovereign state where the public revenues are involved.’ We have never held the State estopped, and have never held a municipal corporation estopped in a case involving its revenues.

Appellees cite State v. Illinois Central Railroad Co., 246 Ill. 188, at pages 234, 235, 92 N.E. 814, 835. There it was contended the State was estopped from inquiring into the correctness of the railroad's semi-annual statements. We held the State was attempting to collect revenue acting in its governmental capacity and that public policy requires that the State shall not lose through the laches or negligence of its officers. We then said: ‘While cases may arise of such a character that right and justice will require that equitable estoppel may be asserted even against the state when acting in its governmental capacity * * * no such showing is made here in the bill as will bring this case within that class.’ Appellees argue that this is such an exceptional case. They point out that, here, not...