Roberts County v. Wickard

• Decision Date: 29 September 1928
• Docket Number: 6100
• Citation: 221 N.W. 246,53 S.D. 511
• Parties: ROBERTS COUNTY Plaintiff and appellant, v. A. E. WICKARD, Treasurer of Roberts County, and State Bonding Department, Respondent.
• Court: South Dakota Supreme Court

53 S.D. 511

221 N.W. 246

ROBERTS COUNTY Plaintiff and appellant,

v.

A. E. WICKARD, Treasurer of Roberts County, and State Bonding Department, Respondent. South Dakota Supreme Court Appeal from Circuit Court, Roberts County, SD Hon. J. J. Batterton, Judge File No. 6100—Reversed Clarence Anderberg, Sisseton, SD Attorneys for Appellant. Howard Babcock, A. O. Bunde, Sisseton, SD Attorneys for Respondents. Opinion filed September 29, 1928

BROWN, J.

Action against the defendant Wickard, as principal, and the state bonding department, as surety on his bond as treasurer of Roberts county. The complaint sets out the bond and alleges in substance that defendant Wickard, as treasurer of Roberts county, deposited in Guaranty State Bank of Sisseton, whose combined capital and surplus was $40,000, sums in excess of 50 per cent of that amount; that under the law and a resolution of the board of county commissioners of Roberts county, appointing that bank a depositary of county funds, not more than 50 per cent of the capital and surplus of the bank was authorized to be deposited in said bank; that on January 12, 1924, when defendant Wickard, as county treasurer, had on deposit in said bank $36,028,05, the bank suspended and was placed in the hands of a receiver, and by reason thereof the funds on deposit were lost. Demand had been made upon defendant by plaintiff for the $16,028.05 excess deposit, and defendant had failed to pay, and plaintiff demands judgment for $16,028.05, with interest. A demurrer on the ground that the complaint does not state a cause of action was sustained, and plaintiff appeals.

Section 6888, R. C., requires the county treasurer to keep on deposit in banks complying with its provisions the money in his hands as county treasurer, but provides that: “No bank at any time shall have on deposit county funds in excess of 50 per cent of the capital and surplus of such bank.”

Section 6889 provides that the county treasurer shall not be liable on his official bond for any loss of money deposited in compliance with the provisions of section 6888. This provision of section 6889 implies that the county treasurer shall be liable for the loss of county money not deposited in compliance with section 6888. In De Rockbraine School District v. Northern Casualty Co., it is said that, when the statute in direct terms imposes the duty to pay over public moneys received and held as such, and no condition limiting that...