State ex rel. Clark v. Gates

• Decision Date: 31 October 1877
• Parties: STATE ex rel. CLARK v. GATES.
• Court: Missouri Supreme Court

67 Mo. 139

STATE ex rel. CLARK

v.GATES.

Supreme Court of Missouri.

October Term, 1877.

Mandamus by Clark, the treasurer of Osage county, to compel Gates, the State Treasurer, to pay to Osage county her proportion of the State school funds for the year 1877.

Lay & Belch with R. S. Ryors for relator.

1. Section 145, p. 1187, 2 Wag. Stat., was rendered nugatory by the adoption of Sec. 15 of Art. 10 of the constitution of 1875. Lambeth was not bound to use the diligence required in ordinary cases, because the failure of the bank could not work a loss of the special deposits of the State funds. He could not presume that the bank would in violation of law use the funds in its ordinary business, and if a bond was taken, as provided by the constitution, no loss has been sustained. Ray Co. v. Bently, 49 Mo. 236.

2. The State Treasurer had no right to draw his check in discharge of his obligation to pay the warrant drawn on the school money apportioned to Osage county. It is not averred that Lambeth received the check in payment of that money; and, even if it was so averred, Lambeth had no authority to make such agreement, or to receive the check in payment. No loss is averred. The following authorities fully bear out our position, that officers or agents of a political or public corporation are confined strictly to the power prescribed by the law, and all persons dealing with them must know the extent of their authority. Miller v. Iron Co., 29 Mo. 122; State v. St. Louis Co., 34 Mo. 546; Cheeney v. Brookfield, 60 Mo. 53; Kiley v. Oppenheimer, 55 Mo. 374; Ceart v. Cogill, 6 Mo. 316; Stillwell v. Craig, 58 Mo. 30; 15 Mo. 604; Maguire v. State Sav. Ass., 62 Mo. 349; Story on Agency, Sec. 11; Dillon on Mun. Corp., Sec. 372; Baltimore v. Eschbach, 18 Md. 276; Thurston v. Magnolia, 1 Bond (Dis. of Ohio).

The Government is not bound by the declaration of an agent, unless it manifestly appear that he acted within the scope of his authority. Whiteside v. United States, 93 U. S. 247; Mayor v. Eschbach, 17 Md. 282: Story on Agency, 307; Lee v. Munroe, 7 Cranch 376; State v. Hayes, 52 Mo. 578; Gibbons v. U. S., 8 Wall. 274; U. S. v. Rhame, Int. Rev. Rec. 235. When an attorney has authority to receive payment, he cannot receive anything but money. Willey v. Greenfield, 30 Me. 452; Holt v. Storris, 7 Wis. 253; Higgins v. Moore, 34 N. Y 417; McCullock v. McKee,16 Penn. St. 289; Marion Co. v. Moffitt, 15 Mo. 604; Riley v. Second Bank, 53 Barb 228; Downey v. Hicks, 14 How. 240; Ward v. Smith, 7 Wall. 447.

Ewing & Pope for respondent.

This is a controversy between two public officers, both bonded, and the question is, which shall lose the money, he who did his whole duty, or he who acted negligently. The one paid the money exactly as directed by the other. The treasurer has authority of law for keeping money in a St. Louis bank on deposit to his credit. Acts of 1877, p. 383, § 17; 2 Wag. Stat., p. 1187, § 145.

SHERWOOD, C. J.

In the manner provided by law the county court of Osage county, in March, 1877, entered an order directing the State Auditor to draw his warrant on the State Treasurer for the sum of $3,198.50, this being the amount ascertained to be due that county as its proportion of the public school fund for that year. The warrant was accordingly drawn, payable to Lambeth, then county treasurer, and presented to the State Treasurer, who, in compliance with the request and direction of Lambeth, “to send by check” on a bank in St. Louis, payable to his order, took up and paid the warrant by sending to Lambeth, in accordance with his request, a check for the amount due; which check was made payable to the order of Lambeth, at the National Bank of the State of Missouri, a bank in the city of St. Louis, at which the State Treasurer had ample funds to meet the check. Lambeth received the check in due course of mail, but negligently and carelessly retained it in his possession, never presenting it for payment, either before or after that bank suspended payment, which suspension occurred June 19, 1877, forty days after the reception by Lambeth of the draft, although an amount amply sufficient to meet the check was on deposit to meet the same, and still remains deposited in the bank; nor did Lambeth's successor in office ever present the check for payment. At the time the State Treasurer drew the check he had, in conformity to law, designated the National Bank aforesaid, as the one where the revenues of the city of St. Louis due to the State should be deposited; and in pursuance of such designation the collector of said city, had deposited a large amount of the revenues due the State, at the bank where the check was drawn. There was also, when the check was drawn, deposited in such bank, by Mercer, the late State Treasurer, over $200,000, which was received by the present State Treasurer as money on deposit due the State. In consequence of the failure to present the check, the amount thereof has been lost to the State. The foregoing allegations are, by the demurrer which questions the sufficiency of the State Treasurer's return, confessed to be true, and we do not see that the stipulation filed herein by the parties, at all affects the status of this case, or materially alters the salient features presented by the return. It is urged, in objection to the return, that it does not show that the amount due has been paid, or that the State Treasurer was authorized to draw, or the county treasurer authorized to receive, the check given in payment. The fact of payment is sufficiently averred, so that the only question for consideration is one of bare authority in giving and in the reception of the check.

1. PUBLIC OFFICERS: judicial notice.

Relative to public officers, whose authority and powers are prescribed by public law, we take judicial cognizance, and no necessity exists to set forth such authority. Thus a sheriff may aver that he levied a writ of execution, or made a sale thereunder, without averring that the law gave him authority to make either the levy or the sale, and if a question arises as to the manner of performing either of the above named or other official acts, and such method of performance is pleaded, it then becomes the duty of the court to determine whether the pleadings show that the law has met with compliance in the given instance.

2. IMPLIED POWERS OF PUBLIC OFFICERS.

This duty devolves on us in the case at bar. If there is one principle in the law which finds abundant and oft repeated recognition, it is this: that where an agent is clothed with general powers, the means and measures necessary to effectuate the powers granted, attend the grant of authority as inevitable incidents, ( Edwards et al. v. Thomas et al., 66 Mo. 468). Thus, an agent employed to get a bill discounted may, unless expressly restricted, endorse it in the name of his employer; a broker employed to effect a policy of insurance may adjust the loss and do all that is requisite towards such adjustment; an agent employed to issue process may receive the debt and costs, and, in general, an agent has implied authority to use those means of which the principal could not but have foreseen the necessity, and therefore could not but have intended to authorize. (Smith Merc. Law, 175, 176, and cases cited); and the same principle which applies to private agents is equally applicable in this regard to public ones. In the Floyd acceptances (7 Wall. 666), so confidently relied on by relator, the point...