Spalding v. People

• Decision Date: 14 February 1898
• Citation: 172 Ill. 40,49 N.E. 993
• Parties: SPALDING v. PEOPLE.
• Court: Illinois Supreme Court

172 Ill. 40

49 N.E. 993

SPALDING

v.PEOPLE.¹

Supreme Court of Illinois.

Feb. 14, 1898.

Error to criminal court, Cook county; O. H. Horton, Judge.

Charles W. Spalding was convicted of embezzlement, and he brings error. Affirmed.John Milton Oliver and Joel M. Longenecker, for plaintiff in error.

E. C. Akin, Atty. Gen., Charles S. Deneen, State's Atty., and Willard M. McEwen, Asst. State's Atty., for the People.

CARTER, J.

This writ of error was sued out to reverse a judgment of the criminal court of Cook county, convicting plaintiff in error, Spalding, of the crime of embezzlement, under section 80 of the Criminal Code, which is as follows: ‘If any state, county, township, city, town, village or other officer elected or appointed under the constitution or laws of this state, or any clerk, agent, servant or employé of any such officer, embezzles or fraudulently converts to his own use, or fraudulently takes or secretes, with intent so to do, any money, bonds, mortgages, coupons, bank bills, notes, warrants, orders, funds or securities, books of record or of accounts, or other property belonging to or in the possession of the state or such county, township, city, town or village, or in possession of such officer by virtue of his office, he shall be imprisoned in the penitentiary not less than one nor more than fifteen years.’ Spalding was the duly-appointed treasurer of the University of Illinois, a public corporation of this state. As such treasurer, he had in his possession and control a large number of interest-bearing bonds belonging to the university, being a part of its endowment fund; and on September 14, 1896, he pledged to the First National Bank of Chicago, to secure his individual note for $25,000, payable on demand, 32 of such bonds, issued by Macoupin county, Ill., of the par value, in the aggregate, of $28,000, and exceeding that amount in actual value. By the terms of the pledge, the bank was authorized to hold said bonds as collateral security for the payment of said note or any other liabilities of Spalding to the bank, and, on default of payment, to sell and assign the bonds, and out of the proceeds to pay, etc. When the pledge was made, the $25,000 so borrowed was, by the direction of Spalding, placed by the bank to the credit of the Globe Savings Bank, of which he was then president. At the time of the trial, the note had not been paid, no demand for such payment had been made, and the pledgee still held the bonds. A successor to Spalding as treasurer had, however, been duly appointed by the trustees of the university, and Spalding had failed to deliver the bonds to him on proper demand made.

The university was founded by an act of the general assembly approved February 28, 1867 (Laws 1867, p. 123), as the Illinois Industrial University; but by act approved June 27, 1885, its name was changed to University of Illinois. This university is maintained from interest derived from its permanent endowment fund arising from grants of land from the United States and by appropriations made by the general assembly, is governed by trustees elected by the people, its property is exempt from taxation, and it is a public institution of the state. By the act of incorporation, the board of trustees is required to appoint a treasurer of the university, who is made the custodian of the moneys, bonds, and funds belonging to it. Section 18 of this act provides, among other things, that ‘it shall be deemed a criminal offense for any person or persons holding in trust any part of the funds of said University of Illinois, knowingly or negligently to misapply or misappropriate the same, indictable in any court having jurisdiction, in the same manner as other crimes are punishable, by fine or imprisonment, at the discretion of the court, according to the nature of the offense.’ And by an act approved and in force April 17, 1877, it is provided that ‘the treasurer of said university and the said board are hereby required, in the future, to invest the principal of the funds arising from the endowment granted by the United States, in interest-bearing bonds of the United States or of this state, or in good county or school district bonds of this state. They are hereby prohibited from changing the securities in which said funds may be invested, except for re-investing in interest-bearing bonds of the class and character specified above in this section.’ The indictment in both counts charges, in a more formal way, that Spalding was an officer, to wit, treasurer of the University of Illinois; that the university was a municipal corporation of said state, duly incorporated, etc., and, being such officer, ‘fraudulently and feloniously did, without then and there having the consent of the said University of Illinois, a municipal corporation, as aforesaid, embezzle and fraudulently convert to his own use a large amount of personal goods, money, and property, to wit, thirty-two bonds of Macoupin county, Illinois,’ describing them, and alleging that they were the property of said university, a municipal corporation, as aforesaid, and that said property, as alleged in the first count, ‘then and there came into the possession,’ and, in the second count, ‘was under the care,’ of said Spalding, by virtue of his said office of treasurer, etc. The indictment concluded by alleging, in language usual in indictments for larceny by embezzlement, that Spalding committed larceny.

The court below, at the instance of the people, instructed the jury ‘that the defendant, Charles W. Spalding, as treasurer of the University of Illinois, was a treasurer of a municipal corporation, and was subject to the provisions of section 80 of the Criminal Code of Illinois, which is as follows: [Stating it as above set out.]’ And the first point made by plaintiff in error is that the University of Illinois is not a municipal corporation; that, as such treasurer, he was not subject to such section, which, it is claimed, is confined to officers of municipal corporations; and that the court erred in giving said instruction to the jury. Counsel concede, and there can be no doubt, that said institution is a public corporation, and it has been so held by this court. Thomas v. University, 71 Ill. 310. See, also, Head v. University, 47 Mo. 220, where, in speaking of the University of the State of Missouri, it was said: ‘By establishing the university, the state created an agency of its own, through which it proposed to accomplish certain educational objects. In fine, it created a public corporation,-a state university.’ Counsel, however, while conceding that it is a public corporation, deny that it is a municipal corporation, or that it belongs to the same general class enumerated in section 80 as ‘state, county, township, city, town, village.’ These, too, are public corporations. Thus, Mr. Justice Story, in his separate opinion in Dartmouth College v. Woodward, 4 Wheat. 669, after speaking of the different kinds of corporations aggregate, said: ‘Another division of corporations is into public and private. Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties.’ See, also, 2 Kent, Comm. 275. Mr. Thompson, in his Commentaries on the Law of Corporations (volume 1, § 22), seems to include all corporations wholly public in their character as public municipal corporations. In 1 Dill. Mun. Corp. (4th Ed.) § 20, the author says: ‘We may therefore define a municipal corporation, in its historical and strict sense, to be the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them, in their corporate capacity, to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper. The phrase ‘municipal corporation’ is used with us, in general, in the strict and proper sense just mentioned; but sometimes it is used in a broader sense, that includes also public or quasi corporations, the principal purpose of whose creation is as an instrumentality of the state, and not for the regulation of the local and special affairs of a compact community.'

We are inclined to the opinion that, strictly speaking, the University of Illinois is not a municipal corporation, but it is a public corporation, and plaintiff in error, as its treasurer, was a public officer, charged with a public trust, under the laws of the state, in receiving, holding, and disbursing public funds and property. The corporations mentioned in said section 80 and the University of Illinois are alike, then, in one respect, and are of the same kind or class, in this: that they are public corporations, and their officers are public officers in control of public moneys and property. What, then, do the words ‘or other officer,’ in the first line of section 80, mean? Counsel agree that, in the interpretation of such statutes the doctrine of ejusdem generis must be applied; that is, where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind. And. Dict.; Suth. St. Const. § 268; Brush v. Lemma, 77 Ill. 496;In re Swigert, 119 Ill. 83, 6 N. E. 469;Misch v. Russell, 136 Ill. 22, 26 N. E. 528. And we agree with the attorney general in his argument that the section should be read as if written: ‘If any state, county, township, city, town, village or other like officer, elected or appointed under the constitution or laws of this state, * * * embezzles,’ etc. In classifying corporations, distinctions are often made between those enumerated in this section; for, while all of them are public corporations, cities and villages are strictly municipal corporations, while counties and townships...