State v. Hill

• Decision Date: 05 March 1896
• Parties: STATE v. HILL ET AL.
• Court: Nebraska Supreme Court

47 Neb. 456

66 N.W. 541

STATE

v.HILL ET AL.

Supreme Court of Nebraska.

March 5, 1896.

Syllabus by the Court.

1. In an action on a treasurer's bond the breaches specially alleged were that there had been a failure to turn over to his successor a certain sum, which it was alleged the outgoing treasurer had in a certain bank when his term of office expired. By answer it was alleged that the outgoing treasurer had turned over to his successor evidence of indebtedness of the same character as those which had formed the basis of liability of the bank to himself to an amount equal to that for which he was sought to be held. By reply it was, in effect, admitted that the outgoing treasurer had turned over to his successor all choses in action that he had received as treasurer, in like forms of evidences of indebtedness with those which he had received, but it was averred that such payment was ineffectual to release the outgoing treasurer, because, as insisted by the plaintiff, nothing but cash could be treated as payment. Held that, under this condition of the issues, and under proofs consistent with the theory of each contending party, it was a question of fact for the jury to determine how much actual money had been received and paid, and that its verdict, being founded upon sufficient evidence, must stand. Per Ryan, C. Irvine and Ragan, CC., concur.

2. Where the petition alleges the delivery of the official bond declared on, the allegation in the answer of a surety, following an averment therein that he signed upon condition the principal should also sign, that “if it [the bond] was ever delivered, it was done in violation of the express condition aforesaid upon which defendant signed said instrument,” must be treated as a substantial admission of the delivery of the bond. Per Norval, J.; all concurring.

3. Whether the sureties in an official bond are liable where the principal therein named has failed to sign it before its acceptance and approval, quære. Per Norval, J.

4. When a state officer elect writes his name in the body of a paper prepared by himself as his official bond, and subscribes his oath of office, indorsed thereon, which instrument is delivered, accepted, and approved as his official bond, the same is valid, and binding upon the principal and his sureties, even though such officer inadvertently omitted to attach his final signature at the bottom of the bond. Per Norval, J.; all concurring.

5. Prior to the taking effect of the legislative enactment providing for the depositing of state and county funds in bank, the payment of money in the hands of a state or county treasurer, at the termination of his term of office, to his successor, could be effectuated alone by the delivery of that which the law of the land recognized as money. The mere delivery and acceptance of certificates of deposit issued by a bank, upon which no money has been realized, is not such a payment as will release the outgoing officer. Cedar Co. v. Jenal, 15 N. W. 369, 14 Neb. 254, adhered to. Per Norval, J.

6. Although a state treasurer has no right to receive in payment of the public revenues anything but money, yet, if he chooses to do so, the state may ratify the act, in which case he and his sureties are chargeable as for money, and must make good the amount. Per Norval, J.

7. The legislature has the power to ratify the act of an outgoing state treasurer in turning over to his successor, as money, certificates of deposit issued by a bank. Per Norval, J.; Harrison, J., concurring.

8. Held, that the record discloses such a ratification in this case. Per Norval, J.; Harrison, J., concurring.

9. When partial payments have been made on a running account, the debtor has the right to direct their application; but if he fails to do so the creditor may make the application, and where neither of them have made any appropriation before suit is brought, the law will apply such payments according to their priority of time; that is, the first item on the debit side is discharged or reduced by the first item on the other side of the account. Per Norval, J.

10. A verdict will not be set aside for error in instructions, when it is manifest that no other verdict should have been returned under the evidence. Telegraph Co. v. Lowrey, 49 N. W. 707, 32 Neb. 732, followed. Per Norval, J.; all concurring.

11. It is essential to the crime of embezzlement that the owner be deprived of the property alleged to have been embezzled by an adverse use or holding. Chaplin v. Lee, 25 N. W. 609, 18 Neb. 440. Per Post, C. J.; all concur.

12. So much of section 124, Cr. Code, 1873, defining embezzlement of public funds, as provides that if any officer charged with the collection, safe-keeping, or disbursement of public funds “shall loan, with or without interest, * * * any portion of the public money, * * * every such act shall be deemed * * * embezzlement of so much of the said moneys * * * as shall be thus * * * loaned” (Gen. St. 1873, p. 749, § 124), was intended to prevent the unlawful use by officers, and others with their knowledge and consent, of money committed to their custody, and not as an amendment of existing statutes regulating the means of preserving and accounting for of public funds. Per Post, C. J.; Harrison, J., and Ryan, Ragan, and Irvine, CC., concurring.

13. The term “loan” is there employed in a restricted sense, and includes those transactions only in which the conventional relation of borrower and lender exists, and has no application to the deposit in bank, for safe-keeping, of public funds, by the custodian thereof, who so far retains his control over them that they may be by him at any time reclaimed. Per Post, C. J.; Ryan and Ragan, CC., concurring.

14. In the absence of statutory restriction upon the subject, the method employed in the monetary transactions of the world by which payments are made, and charges and credits adjusted, through the agency of checks, drafts, and certificates of deposit, is so far applicable to custodians of public funds in this state, as to render them liable for remittances by that means made and received, provided such instruments be in good faith tendered and accepted as payment, and not for collection and credit at the debtor's risk. Per Post, C. J.; Ryan, Ragan, and Irvine, CC., concurring.

15. The word “money” is a generic term, and may include not only legal tender coin and currency, but any other circulating medium, instruments, or tokens in general use in the commercial world as the representative of value. State v. McFetridge, 54 N. W. 1, 998, 84 Wis. 473. Per Post, C. J.; Ryan, Ragan, and Irvine, CC., concurring.

16. A state treasurer, who, on taking charge of the office, instead of demanding the funds due from his predecessor in cash, accepts in payment thereof certificates of deposit issued by a bank in which such funds have been deposited for safe-keeping, is chargeable upon his bond for the amount of such payment, and his liability therefor is not affected by the fact that he is unable to realize the money upon such certificates by reason of the subsequent failure of said bank. Per Post, C. J.; Harrison, J., and Ryan, Ragan, and Irvine CC., concurring.

17. Such a transaction, if in good faith by both parties, amounts to a settlement within the meaning of the statute, which will, to the extent of the payment so made, relieve the retiring treasurer, since the state is not entitled to concurrent remedies upon the bonds of successive officers to enforce the same liability, and whatever is in such case sufficient in law to charge the incumbent will operate per se to discharge his predecessor. Per Post, C. J.; Ryan and Ragan, CC., concurring.

18. Where a line of decisions, although erroneous, has become a rule of property, it should be adhered to until changed by statute. But, in the absence of complications resulting from property rights, it is the undoubted privilege, if not, indeed, the duty, of courts to re-examine questions, and modify or overrule previous decisions shown to be fundamentally wrong. Per Post, C. J.; all concur.

19. State v. Keim, 8 Neb. 63;Bank v. Gandy, 9 N. W. 566, 11 Neb. 431; and Cedar Co. v. Jenal, 15 N. W. 369, 14 Neb. 254,--criticised. State v. Hill, 57 N. W. 548, 38 Neb. 698, distinguished.

20. Whether the doctrine of Cedar Co. v. Jenal, 15 N. W. 369, 14 Neb. 254, extends to a case where a treasurer has accepted certificates of deposit from his predecessor, doubted. Per Irvine, C.

21. The deposit by Hill's successor, under the depository law, of the certificates received by him from Hill in the same bank which issued them, the cancellation of the certificates, and the state's accepting a credit on open account for their amount, operated a novation, made the bank the state's debtor, and released Hill from liability. Per Irvine, C.; Harrison, J., and Ryan and Ragan, CC., concurring.

Action by the state against John E. Hill and others, on the bond of former state treasurer. Judgment for defendants.

A. S. Churchill, Atty. Gen., E. Wakeley, and G. M. Lambertson, for the State.

J. H. Broady, Geo. E. Pritchett, Chas. O. Whedon, Abbott, Selleck & Lane, Griggs, Rinaker & Bibb, T. M. Marquett, J. H. Ames, Cowin & McHugh, and W. Q. Bell, for defendants.

RYAN, C.

This action was brought in this court upon the bond of J. E. Hill, formerly treasurer of this state, as it was held in Re Attorney General's Petition, 40 Neb. 402, 58 N. W. 945, might properly be done. The general verdict of the jury was in favor of the defendants, and upon plaintiff's motion for a new trial, and upon defendants' motion for judgment upon a special verdict, also found by the jury, the questions hereinafter considered have been presented in argument. In the consideration of these questions it may be of some use to refer to the case of State v. Hill, 38 Neb. 698, 57 N. W. 548, in which an attempt was made to acquire jurisdiction of such defendants as were nonresidents of Douglas county,...