People v. Walsen

• Decision Date: 01 February 1892
• Citation: 17 Colo. 170,28 P. 1119
• Parties: PEOPLE v. WALSEN et al.
• Court: Colorado Supreme Court

28 P. 1119

17 Colo. 170

PEOPLE v. WALSEN et al.

Supreme Court of Colorado

February 1, 1892

Error to district court, Arapahoe county.

Proceeding by the state against Fred Walsen, Fritz Thies, Samuel Rose William Barth, D. H. Moffat, C. B. Kountze, and Louis Aufenger, to determine the right to moneys received as interest by defendant Walsen, as state treasurer, on state funds. Judgment for defendants. Plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

This is one of several cases instituted in the court below for the purpose of determining the right to moneys received as interest by certain state treasurers upon state funds deposited in bank. The suits are against the treasurers and their bondsmen. During defendant in error Walsen's term of office the bond of the treasurer was increased from $100,000 to $300,000; and Walsen, having theretofore given a bond in the former sum, filed an additional bond in the sum of $200,000. In this respect only this case differs from the others. In the court below a demurrer was sustained to the complaint. The grounds of the demurrer are: First that the complaint fails to state facts sufficient to constitute a cause of action against defendants second, misjoinder of parties defendant; third, misjoinder of causes of action. The following constitutional provisions are referred to in the opinion: Article 10, § 12. 'The treasurer shall keep a separate account of each fund in his hands; and shall, at the end of each quarter of the fiscal year, report to the governor in writing, under oath, the amount of all moneys in his hands to the credit of every such fund, and the place where the same are kept and deposited, and the number and amount of every warrant received, and the number and amount of every warrant paid therefrom during the quarter. Swearing falsely to any such report shall be deemed perjury. The governor shall cause every such report to be immediately published in at least one newspaper printed at the seat of government, and otherwise as the general assembly may require. The general assembly may provide by law further regulations for the safe-keeping and management of the public funds in the hands of the treasurer, but, notwithstanding any such regulation, the treasurer and his sureties shall in all cases be held responsible therefor.' Article 10, § 13. 'The making of profit, directly or indirectly, out of state, county, city, town, or school-district money, or using the same for any purpose not authorized by law, by any public officer, shall be deemed a felony, and shall be punished as provided by law.'

Joseph H. Maupin, Atty. Gen., L. S. Dixon, H. Riddell, and Wells, McNeal & Taylor, for the People.

Waldron & Hillhouse, Hugh Butler, Wolcott & Vaile, Benedict & Phelps, C. S. Thomas, and Bartels & Blood, for defendants in error.

HAYT C.J., ( after stating the facts.)

It is contended by appellant that the state treasurer is a bailee or trustee of the public funds, and, as such, subject to the common-law liabilities of trustees. The absolute liability of the treasurer and his sureties for all public money received by him as treasurer is fixed by the state constitution. In this respect the obligation of the treasurer is different from that of an ordinary trustee. Such a trustee is only held to the exercise of reasonable care with reference to the property. If the trust funds are stolen or otherwise lost without fault of the trustee, he is not liable. Not so, however, with the state treasurer. No amount of care will excuse him in case of loss by theft, fire, or by insolvency of the banks selected as depositories. He must make the loss good to the state. He can only be discharged by paying over the money when required, and the sureties upon his official bond also assume this unusual liability. In re House Resolution, 12 Colo. 395, 21 P. 486. The language of our constitution, which makes the treasurer absolutely liable, takes away an important right of a trustee. It is claimed that under our statutes the treasurer is required to pay out the identical money received by him, and that his duty in this respect is similar to that of a bailee at common law; hence it is argued his liability is the same. The following statutes are cited in support of this contention: Gen. St. § 1353. 'The treasurer shall-- First. Receive and keep all moneys of the state not expressly required by law to be received and kept by some other person. Second. Disburse the public moneys upon warrants drawn upon the treasurer according to law, and not otherwise. Third. Keep a just, true, and comprehensive account of all moneys received and disbursed. Fourth. Keep a just and true account of each head of appropriation made by law, and the disbursements made under the same. Fifth. Render his accounts to the auditor for settlement quarterly, or oftener, if required. Sixth. Report to the governor, at least twenty days preceding each regular session of the general assembly, a detailed statement of the condition of the treasury, and its operations for the two preceding fiscal years. Seventh. Give information in writing to either house of the general assembly, whenever required, upon any subject connected with the treasury, or touching any duty of his office.' It is also provided that when he shall receive any public money he shall forthwith enter the same in a book, to be kept for that purpose, setting down the amount and the particular nature of the funds received. And it is further provided that, in case of death or resignation of the treasurer, the governor shall appoint two persons, who, with the secretary of state, shall proceed to the office of the state treasurer, and seal up and secure all moneys, papers, and other things supposed to belong to the state. As to the latter provision, the most that can be claimed is that it is a precaution deemed necessary to preserve from spoliation the public property, and prevent the same from passing into the hands of the personal representatives of the treasurer in case of his death. We find nothing in the statutes authorizing the conclusion that the identical money must be paid. We think the provisions with regard to his accounts are for the purpose of the more easily detecting any failure to charge himself with the funds received. Certainly nothing is specified in reference to paying out the funds. There is nothing to prevent him from receiving gold and paying out silver or paper money; or he may, if he chooses, receive the money and pay by check, if acceptable to the creditor. Indeed, we think in this age, with its advanced facilities for the transaction of business without handling the currency, it is not to be presumed that the legislature would make an exception in case of the state treasurer, in the absence of language directly indicating such intention. In this respect, then, the obligation of the state treasurer is dissimilar from that of a bailee at common law. The distinction between officers invested with the collection and disbursement of public funds and a private bailee has been pointed out and enforced in many adjudicated cases. Wilson v. Wichita Co., 67 Tex. 647, 4 S.W. 67; Com. v. Godshaw, (Ky.) 17 S.W. 737; Inhabitants v. McEachron, 33 N. J. Law, 339; U.S. v. Prescott, 3 How. 578.

The constitution declares that the making of profit by him either directly or indirectly, out of public funds, shall be deemed a felony, and punished as provided by law. This provision recognizes that a profit may, in fact, be made by the treasurer, although it declares the making thereof a felony, to be punished as provided by law. It does not provide that the profit to be made shall inure to the benefit of the state. By the next succeeding section, however,...