People v. Swineford

• Decision Date: 08 November 1889
• Citation: People v. Swineford, 43 N.W. 929, 77 Mich. 573 (Mich. 1889)
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SWINEFORD.

43 N.W. 929

77 Mich. 573

PEOPLE v. SWINEFORD.

Supreme Court of Michigan

November 8, 1889

Error to circuit court, Marquette county.

Action by the people of the state of Michigan against Alfred P Swineford for money had and received. Judgment for plaintiff and defendant brings error.

A. B. Eldredge, (E. E. Osborn, of counsel,) for appellant.

Butterfield & Keeney, for appellee.

LONG, J.

The defendant was appointed a United States commissioner at the New Orleans exposition in the years 1884 and 1885. He was also appointed, by the governor of this state, as one of the commissioners to represent this state at that exposition, and to collect the materials to be represented there as an exhibit on the part of the state. It appears that the managers of the exposition at new Orleans sent to Gov Begole, then the governor of the state, their draft for $5,000, for the purpose of being used in getting up and forwarding an exhibit from this state to that exposition. This draft came to Gov. Begole; was indorsed by him over to defendant, Swineford, who indorsed it over to Mr. Kanter, the treasurer of the commission appointed by the governor. This commission consisted of five persons, who were to represent the state at the exposition, and who were charged with the duty of looking after the exhibits from this state, and of raising money for that purpose. One thousand dollars that came from the managers at New Orleans was turned over to the defendant for the purpose of getting up an exhibit from the upper peninsula. The money received from the exposition authorities being deemed by the commission entirely inadequate for the making of an exhibit, they applied to the people of the state for aid, and bonds were issued, payable within 30 days after the legislature of the state should provide money therefor. These bonds were signed by the defendant, as a member of the finance committee of the commission, and by the other members of that committee, and bear date October 7, 1884. The commission held the letter of Gov. Begole, approving the raising the money and promising to recommend to the legislature the appropriation of money for the liquidation of the bonds. The legislature, at its session in 1885, (Sess. Laws 1885, p. 26,) passed an act entitled "An act to provide for the payment of the expense of the Michigan exhibit at the New Orleans exposition." This act appropriated $10,000, and authorized the board of state auditors to audit and allow to the Michigan commissioners to the New Orleans exposition the sum so appropriated, or so much thereof as might be necessary to pay the expenses of said commission, and the auditor general was directed to draw his warrant upon the state treasurer for the amount so audited and allowed, upon the presentation of the proper vouchers, certified by the board of state auditors; but provided that, before any such appropriation should be paid, the bonds issued by the commission, which bonds amounted to $10,000, should be presented to the board of state auditors for cancellation. This act took immediate effect, and was approved April 1, 1885. On August 26th following, Mr. Kanter, treasurer of the commission, presented to the state board of auditors his account for the expenses of the commission, which was allowed at $8,934.67. There were three exhibits from the Lake Superior district,-the upper peninsula. Two of these exhibits were prepared and furnished by the Michigan Land & Iron Company and the Marquette & Mackinac Railroad Company, without expense to the commission. The other, the mineral exhibit, it is claimed by plaintiff, was prepared by M. A. C. Davis, now deceased, who was a member of the commission,-appointed, at the request of the defendant, especially for that purpose. It is claimed further by the state that the defendant only paid, from the $1,000 placed in his hands for the purpose of these Upper Peninsula exhibits, the sum of $250, which was paid to Mr. Davis; and that the defendant still retains $750 of this fund. It is also claimed that a demand was made by the state upon the defendant for this sum, and payment refused, before suit was commenced. This action is brought to recover such balance. The cause was tried before a jury, and the state had judgment. Defendant brings error.

The first claim made by the defendant is that the money sued for, being a part of the $5,000 appropriated by the New Orleans exposition for the furnishing of an exhibit from the state of Michigan, never was the money of the plaintiff, nor did the plaintiff ever acquire any such interest in it as would authorize the plaintiff to demand or recover it. It appears from the testimony of Gov. Begole that the moneys were sent him as governor of the state, and that he indorsed the draft over to Mr. Swineford, who indorsed it over to Mr. Kanter, treasurer of the commission. The money was treated as a part of the funds which the state would expend in making exhibits at New Orleans. It was not deemed sufficient for that purpose, and the commission borrowed an additional amount, to make up what was required. This amount or deficiency the state paid, under the direction of the act of the legislature above referred to. The fund coming from New Orleans was treated by the commission, of which the defendant was a member, as state funds, or, at least, as a fund which lessened the amount which the state was to raise; and the act of the legislature passed thereafter recognized the acts of the commissioners as valid. The defendant accepted a place on that commission, and acted with it; and we think he cannot now be heard to say that the funds which came into his hands from the commission were not state funds. It did not matter whether the $1,000 was a part of the $5,000 coming from the managers at New Orleans, or from the sale of the bonds which the defendant and the other members of the commission issued. It was a part of a general fund belonging to the state, and to be used and expended under the direction of a commission appointed by the governor, and whose acts were afterward recognized as valid by an act of the legislature. It may be true that the governor had no power or authority to appoint such a commission; but the defendant, having accepted the appointment, and acted under it, is estopped from making any such claim, at least after the legislature has recognized such action, and authorized the payment of the balance of the expenses incurred by them. This $5,000 was a gift to the state, to aid it in preparing these exhibits, and the governor had authority to accept it and apply it to the purposes for which it was intended; and the legislative act is evidenced that the legislature approved the action of the governor in the premises.

Claim is also made that there was no evidence introduced that the treasurer of the commission ever presented to the board of state auditors the bonds for cancellation, or that one dollar was ever paid by the state towards the expenses of this exhibit, or of the commission. In this the counsel for the defendant is in error. Some evidence was given of the fact, as shown by the record before us. This, however, is not very material to the issues presented.

It is also claimed by defendant's counsel that, though the defendant was the agent of the state, and this was state money, the plaintiff is not in position to claim this money. That, if the defendant is liable at all, it is...