State v. Hill

• Decision Date: 03 January 1894
• Parties: STATE v. HILL ET AL.
• Court: Nebraska Supreme Court

38 Neb. 698

57 N.W. 548

STATE

v.HILL ET AL.

Supreme Court of Nebraska.

Jan. 3, 1894.

Syllabus by the Court.

Suit was brought in the district court of Douglas county upon the bond of a former state treasurer. Some of the sureties upon the bond resided in Douglas county, and were there served with summons, and summonses were issued and served upon the other parties elsewhere. The petition alleged: First, the failure and refusal of the treasurer to account for, and pay over to his successor, a certain sum of money; second, the loaning to and deposit in the C. Bank, in Lancaster county, of a similar sum; third, the loaning to and deposit in the M. Bank, in Douglas county, of a certain sum; fourth, the loaning to and deposit in the United States Bank, in Douglas county, of a still further sum. Judgment was asked for the amount averred not to have been paid over, and averred to have been deposited in the C. Bank. Held:

1. That section 174 of the revenue law applies only to proceedings for the purpose of distributing revenues upon their collection to the proper funds, and not to such suits as that at bar.

2. That the proceeding was one upon an official bond or undertaking of a public officer, and must be brought in the county where the cause, or some part thereof, arose.

3. That it was the duty of the treasurer to account for and pay over moneys in his hands at the close of his term of office to his successor in the county where the seat of government is located, and that an action for failing to do so must be brought in that county.

4. That it was the duty of the treasurer to keep the moneys of the state in the treasury at the seat of government, except as he should disburse them, or otherwise dispose of them, as provided by law; that a conversion took place upon his removal of moneys from the treasury with the intention of making an unlawful use of them by depositing them in the bank; and that the cause of action for such conversion arose upon his removal of the moneys from the treasury, and not upon their deposit.

Error to district court, Douglas county; Davis, Judge.

Action by the state of Nebraska against John E. Hill and others on an official bond. The action having been dismissed for want of jurisdiction, plaintiff brings error. Affirmed.

Maxwell, C. J., dissenting.Geo. H. Hastings, Atty. Gen., and E. Wakeley, for the State.

J. H. Broady, Griggs, Rinaker & Bibb, T. M. Marquett, John H. Ames, and W. Q. Bell, for defendants in error.

IRVINE, C.

John E. Hill was the treasurer of the state of Nebraska for the term ending January, 1893. The other defendants herein were alleged in the petition to be the sureties upon his bond, which was conditioned that he should well and truly, in all things, perform the duties of his office during the continuance of his term, as provided by law. This action was brought upon the bond in the district court of Douglas county, where some of the sureties resided, and the petition charges as breaches of the bond, substantially, as follows: That, at the time of entering upon the duties of his office, Hill had in his possession $1,524,554.74, received and collected as the moneys of the state of Nebraska, held as such, and belonging to the state, and that thereafter, during his term, Hill received moneys of the state, and that the said sums amounted to $4,200,834.50, making in all $5,725,389.24; that out of said moneys he paid and disbursed divers sums for lawful purposes, but that at the end of his term, when he surrendered his office to his successor, there still remained in his possession and control $1,144,556.42, which it was his duty to pay over and deliver to his successor; that he failed and refused to pay over said moneys, except that, as plaintiff is informed, he did pay over some small sums of money, the amount of which is unknown to plaintiff, and delivered to his successor sundry certificates of deposit in certain banks, or choses in action, which he in some manner induced his successor to accept in place of money, amounting in the aggregate to the sum last mentioned; that Hill's successor has since received, by means of such certificates or choses in action, certain sums, the amount of which is unknown to the plaintiff, but that Hill failed and refused to pay over, disburse, or account for the sum of $236,364.60 and more, whereby the state has sustained damages in the sum last mentioned. The defendants residing in Douglas county were served with summons there, and the other defendants were served in the counties of their respective residences. The defendants not residing in Douglas county, by several differentinstruments, entered special appearances, and objected to the jurisdiction of the court. Subsequently, by leave of court, an amended petition was filed, which, so far as it alleges the breach complained of in the original petition, is substantially similar thereto, except that it alleges the sum which Hill failed and refused to pay as $236,361.60. The amended petition alleges a further breach of the bond, by charging that Hill, during his term of office, deposited in and loaned to the Capital National Bank of Lincoln, located and doing business in Lancaster county, $236,361.60, thereby converting the said moneys to his own use, and, for a further breach, that he also deposited in and loaned to the Merchants' National Bank of Omaha, located and doing business in Douglas county, $80,510 and over, and, for a still further breach, that he deposited in and loaned to the United States National Bank of Omaha, located and doing business in Douglas county, $159,748 and over. The amended petition closes with an allegation that by reason of the premises the plaintiff has sustained damages in the sum of $236,364.60, and prays judgment for that amount. The defendants, nonresidents of Douglas county, renewed their special appearance and objections to the jurisdiction of the court. While the objections of these defendants are set forth in different language, they are all to the effect that the petition shows upon its face that the action is one within section 54 of the Code of Civil Procedure, and that the transactions complained of occurred in Lancaster county, and not in Douglas. The district court sustained these objections, and dismissed the action for want of jurisdiction. The state prosecutes error, assigning numerous errors, all of which, however, present the single question as to whether or not the district court erred in holding that it had no jurisdiction of the action.

The statutes which it is claimed relate to the subject are sections 54 and 60 of the Code of Civil Procedure, and section 174 of the revenue act. Sections 54 and 60 are in title 4 of the Code, relating to counties in which actions are to be brought. By section 54 it is provided that: “Actions for the following causes must be brought in the county where the cause or some part thereof arose. * * * (2) An action against a public officer for an act done by him in virtue or under color of his office or for neglect of his official duty. (3) An action on an official bond or undertaking of a public officer.” Sections 51 to 59, inclusive, all relate to the places where different classes of actions therein specified are to be brought. Section 60 provides that: “Every other action must be brought in the county in which the defendant or some of the defendants reside or may be summoned.” The first portion of section 174 of the revenue act is as follows: “When suit is instituted in behalf of the state it may be in any court of record in this state having jurisdiction of the amount; and process may be directed to any county in the state.” Which of these statutes applies to the case at bar? It is urged by plaintiff in error that the case is to be governed by section 174 of the revenue act, as being a special provision relating to this class of actions. That section must be taken with its context. The title of the act is, “An act to provide a system of revenue.” The act, in its different parts, relates to the listing and assessment of property for taxation; the levying and collecting of taxes, including the seizure and sale of property for taxes; the distribution of taxes, when collected, to the proper funds and to the proper custodians. The custody of such funds, their disbursement, and the accounting therefor by officers charged with their custody and disbursement, are subjects neither within the title nor the provisions of the act, but are provided for in other statutes. The sections immediately preceding section 174 provide for the settlement by treasurers and other collectors of taxes with the custodians of the funds for the supply of which the taxes, when collected, are paid to such custodians. Section 173 provides for a suit by the auditor against county treasurers for failure to make settlements on account of taxes collected for the state. Then follows the provision quoted from section 174. The remainder of section 174 provides for summary procedure against officers or persons “whose duty it is to collect, receive, settle for, or pay over any revenue of the state.” Section 175 extends the remedy by suit to cities, towns, villages, etc., against treasurers or other officers collecting or receiving funds for their use. We think it is manifest from the purpose of the whole act, and the subject-matter of its immediate context, that section 174 relates only to suits for the purpose of getting the revenue out of the hands of collectors into the treasury, and not to actions based upon the misappropriation of funds after they have reached the treasury. An additional reason for so construing the section is that to extend it further would inject into the act a subject not within its title, and expose it to the constitutional objections discussed in Holmberg v. Hauck, 16 Neb. 337, 20 N. W. 279;Foxworthy v. Hastings, 23 Neb. 772, 37 N. W. 657;Touzalin v. City of Omaha, 25 Neb. 817, 41 N. W. 796;Trumble v....