State ex rel. City of Estherville v. Hanson, 40054.
| Decision Date | 23 June 1930 |
| Docket Number | No. 40054.,40054. |
| Citation | 210 Iowa 773,231 N.W. 428 |
| Parties | STATE, FOR USE OF CITY OF ESTHERVILLE, v. HANSON, COUNTY TREASURER, ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Emmet County; F. C. Davidson, Judge.
Suit in behalf of the city of Estherville against the county treasurer of Emmet county and the surety on his official bond, to recover certain city taxes alleged to have been collected by the said county treasurer and not legally accounted for to said city. The defense was that the county treasurer had paid said funds to the city treasurer of said city, and that the city had ratified said payment, and that any loss suffered by the city was due to the negligence of the city treasurer. The court decreed judgment for the plaintiff for the amount claimed and the defendants appeal.
Affirmed.Price & Burnquist, of Ft. Dodge, for appellant National Surety Co.
N. J. Lee, of Estherville, for appellant Hanson.
F. J. Kennedy, of Estherville, and Heald, Cook & Heald, of Spencer, for appellees.
Appellant Hanson is the county treasurer of Emmet county, Iowa. The appellant National Surety Company is the surety on his official bond. One Ghoslin was the city treasurer of the city of Estherville during the time involved in this action and prior to April 1, 1926. Ghoslin was also assistant cashier of the Iowa Savings Bank prior to the time that said bank closed on November 25, 1925. It is stipulated or established by the evidence that on or about the 17th day of November, 1925, the appellant Hanson, as county treasurer, had collected taxes belonging to the appelleecity in the sum of $15,919.64. On or about the said 17th day of November, 1925, said Hanson delivered to the city clerk of said city of Estherville a written notice to the effect that said county treasurer had in his hands the said sum of money belonging to the several funds of said city as shown upon said notice. Said notice contained the statement: “The sum will be paid to your treasurer upon the return of the attached order properly signed, countersigned, and endorsed.” There was attached to said notice a form of order to be signed by the mayor and city clerk describing the said funds and directing their payment to the treasurer of said city. This order, however, was not signed or presented until long subsequent to the matters involved in this litigation, to wit, on January 19, 1928, at which time one Hunt was treasurer of said city. When said order was so presented to appellant Hanson, payment thereof was refused. At the time that said notice of taxes so collected by the city treasurer was delivered to the city clerk, the mayor and said clerk did not attempt to sign said order for the payment of said funds to the city treasurer, but, after consultation with each other, withheld the signing or presentation of said order. However, on or about the said 19th day of November, 1925, without having received any order from the mayor and city clerk directing him so to do, the appellant Hanson took said funds in the form of checks to the said Iowa Savings Bank and delivered the same to one Stockdale, an officer of said bank, with the request that he deliver the same to the city treasurer, Ghoslin. The next day Hanson received a receipt from Ghoslin for said money. It appears that the amount of said fund was placed by Ghoslin to his account as treasurer of said city in the said Iowa Savings Bank. As stated, said bank closed on November 25, 1925. It further appears that on April 21, 1925, the city council of said city had designated the said Iowa Savings Bank as a depository of city funds, fixing the maximum deposit at $150,000. On November 2, 1925, the city council of said city repealed said resolution and limited the amount to be deposited in the Iowa Savings Bank to $50,000. The evidence shows that the Iowa Savings Bank was in fact insolvent at the time this deposit was made, and closed on the 25th of November.
I. Code, § 6229, is as follows: “Before the third Monday of each month, the county treasurer shall give written notice to the mayor of each municipality in the county of the amount collected for each fund up to the first day of that month, including the amounts collected to pay bonds issued to pay the costs of public improvements for which special assessments have been levied and certified, and the mayor of each municipality shall draw an order therefor in favor of the city treasurer, countersigned by the clerk or auditor of the municipality, upon the county treasurer, who shall pay such taxes to the treasurers of the several municipalities only on such order.”
Appellants contend that said statute is directory only, and that, the city treasurer having in fact received the funds from the county treasurer, it is immaterial that the funds were not paid to the city treasurer on the order of the mayor and city clerk. In other words, it is the contention of the appellants that the funds collected as municipal taxes by the county treasurer, having reached their ultimate destination, to wit, the city treasurer, it is immaterial how the funds arrived in the possession of said officer, notwithstanding the provisions of said statute. Appellee contends that the statute is mandatory.
The Legislature obviously had some purpose and intention in adopting this statute. Section 1126 of the Revision of 1860 provided that the county treasurer should pay over to the treasurer of any municipal corporation the money received by him arising from taxes belonging to said municipal corporation. This statute was carried into the Code of 1873, § 498, and the same system of direct payment by the county treasurer to the treasurer of the municipality was adopted in the Code of 1897 as section 902. However, the Legislature, by chapter 29 of the Acts of the Thirty-First General Assembly, which became effective July 4, 1906, amended the former statute directing the county treasurer to pay over to the treasurer of the municipality all taxes collected by him, and enacted a new statute substantially in the form of section 6229 of the Code of 1927. It is thus apparent that the Legislature intended to abolish the system by which the county treasurer could pay municipal taxes directly to the city treasurer and to provide in lieu thereof the system set forth in section 6229. By repealing the former statute, which would have permitted the doing of the very thing that was done in the instant case and substituting an entirely new method therefor, it is clear and plain that the intention of the Legislature was to abolish the former method and substitute the new plan in its stead. What reasons may have actuated the Legislature, and what abuses, if any, may have arisen under the former statute, it is not necessary for us to determine, but it is significant that the Legislature, in expressly doing away with the former method of payment directly from the county treasurer to the city treasurer, had a clear and obvious purpose to render the new method mandatory. It expressly provided that such payment “shall” be made “only” on the order of the mayor and the city clerk.
[1] Whether a statute is mandatory or directory depends upon the intention of the Legislature, to be ascertained from a consideration of the existing law, the...
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