State v. Ross
| Decision Date | 15 February 1910 |
| Citation | 106 P. 1022,55 Or. 450 |
| Parties | STATE v. ROSS et al. |
| Court | Oregon Supreme Court |
On petition for rehearing. Former opinion (104 P. 596) modified.
A petition for rehearing has been filed in this case by counsel for defendant, another by Carey & Kerr, on the ground that they are employed in cases involving some of the same questions, and another by Joseph Simon and 20 other leading members of the bar, solely as amicus curiae, on account of the public importance of the decision. The ground upon which the motion is based is error of this court in the application of the law to this case as disclosed in the opinion, and is principally a review of the questions discussed therein.
Counsel for defendant and Carey & Kerr insist that the act of 1907 (Laws 1907, p. 248), has no application to the educational fund, and that the Treasurer has the right to make general deposits of that fund in any bank, as held in Baker v Williams, 42 Or. 223, 70 P. 711, independent of that act, while it is contended in the petition of Joseph Simon et al. that by sections 6, 7, and 8 of the late law a general deposit of that fund in the active depository is authorized. We have re-examined the questions involved with the aid of the briefs submitted with these applications, and adhere to our first views. Sections 1 to 5 make provision for deposits clearly contemplating that the deposits shall be general, and requiring the Treasurer to deposit all state funds, except the educational fund, in the general depositories. The collections made by the active depository upon checks and drafts for the general funds cannot be left there by the Treasurer, but must be transferred to the general depositories. This obligation is as binding on him as that he shall not retain the money in his office. Instead of exempting the educational funds from the terms of the act section 16 provides that the term "funds," as used in the act, shall not include the educational funds, and that nothing in the act shall be construed to deprive the state land board of power over this fund, thus indicating that it is to be governed by the provisions of the act, save where it is excepted therefrom, and sections 6, 7, and 8 seem to have special reference to the educational fund. The decision in Baker v. Williams, 42 Or. 223, 70 P. 711, is not here questioned. No doubt the Legislature had that decision in mind when it adopted the present law, seeking thereby to guard the educational fund by expressly excluding it from a general deposit. Section 6 is not uncertain as to what funds may be collected thereunder when it says that it is for the collection of any drafts, checks, and certificates that may be received by the Treasurer "on account of any claim due the state." Sections 3 and 4 fix the minimum rate of interest to be paid by the general depository, and provide that the rate agreed upon shall not be changed for a year, and shall be computed on daily balance and paid quarterly, and that the bank shall render an account the first of every month, showing daily balances. And the condition of the security given is that all of these things shall be done, while the security required under section 7 is conditioned only for the prompt collection, the safe-keeping, and the prompt payment on the Treasurer's orders of the proceeds of such collections and for the prompt payment of its own drafts. This does not include statements, nor contemplate interest. The conclusion is unavoidable that this act only contemplates general deposits of funds other than the educational, and for which interest shall be paid. It was evidently the purpose of the Legislature by these provisions to take the educational fund out of that custom or right of the Treasurer to make general deposits as recognized in Baker v. Williams, supra. The clause in section 8, to the effect that the compensation to be paid shall be fixed by the Treasurer, does not require him to exact a compensation as a condition for the deposit, nor is such requirement made a condition upon which the bank shall be appointed an active depository. In the opinion we cited some cases holding that in case of a special deposit the money may not be mingled by the bank with its own funds, yet we did not intend to decide that question, deeming it unnecessary since the conversion was proved independent of such commingling; but the fact that the bank does so mingle a special deposit cannot deprive the owner of his rights as such. Woodhouse v. Crandall, 197 Ill. 104, 64 N.E. 292, 58 L.R.A. 385. It is not held in the opinion that the trust company or the defendants were officers of the state, but the act of 1907 authorizes their possession of state money for the state, and they come fully within the class of persons mentioned in section 1807, B. & C. Comp., which includes more than state or municipal officers, viz., "any person who shall receive any money whatever for this state." When the Treasurer deposits the money, as directed by the act of 1907, his personal liability therefor is terminated, although it is still subject to his disposal. The depository does not receive the money for him, but for the state; that is, by express direction of the law and not at the option of the Treasurer. The trust company and defendants did receive this money for the state by special authorization, and are as clearly within the very words of the statute as the Treasurer would be.
Section 1805, B. & C. Comp., defining embezzlement, relates to the fraudulent conversion by an officer, agent, or clerk of a private person or incorporation, and does not apply to one in possession of public money, and section 1807 relates especially to public moneys that are misappropriated. This is not a case where some other officer converted the money and defendant is held responsible for that act by reason of his relation to the bank. There is nothing in the record to disclose that any other officer wrongfully converted the money. The cashier or teller who paid out the money was not offender, unless he was aware of the source from which the money came and the capacity in which it was held. The wrongful act...
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