State v. Wells
| Decision Date | 04 November 1887 |
| Docket Number | 13,903 |
| Citation | 13 N.E. 722,112 Ind. 237 |
| Parties | The State v. Wells |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
Judgment reversed, and cause remanded, with instructions to overrule the motion to quash.
J. F Neal, Prosecuting Attorney, T. J. Kane and T. P. Davis, for the State.
F. M Trissal, for appellee.
The grand jury of Hamilton county returned an indictment into the Hamilton Circuit Court, at its September term, 1886, in which it was charged that Samuel B. Wells, theretofore a duly appointed and qualified commissioner of drainage, had, on or about the 30th day of May, 1886--he having previous to that date resigned his office--feloniously failed and refused to pay over to his successor in office certain moneys which had been collected and received by him on account of assessments made for defraying the costs and for the construction of a certain drain theretofore duly ordered and established in Hamilton county.
The court quashed the indictment. The propriety of this ruling depends upon whether or not the act of March 5th, 1883 entirely abrogated or repealed section 1943, R. S. 1881.
This latter section provides that "Any county treasurer, county auditor, sheriff, clerk, or receiver of any court, township trustee, justice of the peace, mayor of a city, constable, marshal of any city or incorporated town, or any officer or agent of any county, civil or school township, city, or incorporated town, who shall fraudulently fail or refuse, at the expiration of the term for which he was elected or appointed, or at any time during such term, when legally required by the proper person or authority, to account for, deliver, and pay over to such person or persons as may be lawfully entitled to receive the same, all moneys, choses in action, or other property which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the State prison for any period not more than five years nor less than one year, and fined in any sum not exceeding one thousand dollars, and rendered incapable of holding any office of trust or profit for any determinate period."
The act of March 5th, 1883 (Acts 1883, p. 106), which is entitled "An act relating to county, State, and other officers, and the payment by them to their successors in office of all moneys in their hands at the expiration of their terms of office, and providing penalties for failure to do so," reads as follows:
"That it shall be the duty of each clerk, sheriff, and treasurer of the several counties in this State, and every other officer receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, or sheriff, so failing to pay over such moneys, or any successor [of such] clerk, treasurer or sheriff, who shall fail to pay over any moneys to parties entitled to receive the same when called on to do so, shall be deemed guilty of embezzlement, and, on conviction thereof, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned at hard labor in the State prison not less than one nor more than five years."
A comparison of these several statutes discloses the purpose of the Legislature in each.
Section 1943 makes any of the officers therein specially named, or any officer or agent of a municipal corporation, subject to indictment and conviction for embezzlement, who fraudulently fails or refuses at the expiration of his term, or at any time during such term, when legally required to do so, to account for, deliver, and pay over to the person or persons entitled to receive the same any and all moneys, choses in action, or other property, which may have come to his hands by virtue of his office.
The act of 1883 has relation to the duties of officers at the expiration of their terms of office. That act affirmatively requires all county clerks, sheriffs and treasurers, and every other officer, whether he be a State, county or municipal officer, who receives money in his official capacity, to pay over all such moneys as may remain in his hands at the expiration of his term, no matter to whom it may belong, to his successor in office, and take his receipt therefor. It also makes any county clerk, sheriff, or treasurer, who fails to pay over to his successor as required, guilty of embezzlement, and it makes the successor guilty of the like offence, in case he fails or refuses, when called upon to do so, to pay the money thus received by him to the persons entitled to it. Under this latter act clerks, sheriffs and treasurers are not liable to punishment for failing or refusing to pay money, or deliver property, or choses in action, to the persons to whom it may belong, at any intermediate period before the expiration of their terms, except it be money turned over to them by their predecessors in office.
It may be supposed that the Legislature was cognizant of the fact that county clerks, sheriffs and treasurers become the custodians of funds and property, by virtue of their respective offices, which belong to individuals, and it may have been supposed that instances might arise, or probably have arisen, where officers of the class mentioned would retain such moneys or property in their own possession at the expiration of their terms, instead of turning it over to their successors in office. Thus it would follow that moneys and property which should be kept in the custody and under the protection of a public officer, in a public office, would be subject to the vicissitudes and perils of being in the custody and use of private individuals who might or might not be readily accessible to the persons entitled to it. This was the mischief at which the act of March 5th, 1883, was aimed. The effect and purpose of that act was to make it the duty of all officers to turn over to their successors all moneys remaining in...
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