Territory Ex Rel. City of Albuquerque v. Matson

• Decision Date: 04 February 1911
• Citation: 113 P. 816,16 N.M. 135
• Parties: TERRITORY ex rel. CITY OF ALBUQUERQUEv.MATSON, City Treasurer.
• Court: New Mexico Supreme Court

16 N.M. 135

113 P. 816

TERRITORY ex rel. CITY OF ALBUQUERQUE

v.MATSON, City Treasurer.

Supreme Court of the Territory of New Mexico.

Feb. 4, 1911.

Syllabus by the Court.

A city is the party “beneficially interested” in a suit to compel its treasurer to deposit the money in his hands belonging to it in a bank designated by an ordinance of the city, from which it would receive interest on the money so deposited.

A city ordinance requiring the treasurer of a city to deposit all moneys in his hands belonging to the city in such bank, or banks, as shall qualify as provided in the ordinance, but not attempting to restrict in any way the paying out by him, under the provisions of law, of such moneys by his own checks, would not operate to deprive him of the “custody” of such moneys, within the meaning of section 2424, Comp. Laws 1897.

The use, as a part of the repealing clause of a statute, of the words “all acts and parts of acts in conflict herewith” repeals nothing which would not be repealed by implication without those words.

Section 3 of chapter 122 of the Session Laws of 1909, providing that municipal and county treasurers are required to designate depositories in which the funds coming into their hands shall be kept, is manifestly and totally repugnant to the provisions of section 2424 of the Compiled Laws of 1897, providing that city councils may designate a place of deposit for city funds, and may require the city treasurer to keep all moneys in his hands belonging to the corporation in such place of deposit, and operates to repeal section 2424.

(Additional Syllabus by Editorial Staff.)

Repeals by implication are not favored, and it is the duty of the court so to construe statutes if possible that both shall be operative, but where two statutes on the same subject are manifestly and totally repugnant, the latter statute, to the extent of the repugnancy, operates as a repeal of the former.

Appeal from District Court, Bernalillo County; before Justice Merritt C. Mechem. Mandamus by the Territory, upon the relation of the City of Albuquerque, against O. A. Matson, City Treasurer. Judgment of dismissal, and relator appeals. Affirmed.

Abbott, J., dissenting.

Repeals by implication are not favored; it being the duty of the court to so construe the acts, if possible, that both shall be operative.

The relator, the city of Albuquerque, appeals from a judgment of the Second district court of Bernalillo county, dismissing the relator's petition for an alternative writ of mandamus, and the alternative writ issued thereon, on the relator's motion for judgment on the pleadings, the facts being correctly set forth therein. Briefly stated, the following are the facts alleged in the petition:

On April 13, 1910, the city council of the city of Albuquerque, assuming to act under the authority conferred upon it by the general laws of the territory, relating to municipal corporations, duly enacted ordinance No. 462 of said city, establishing and designating as depositories for public moneys belonging to the city, in the hands of the city treasurer, three banks in the city of Albuquerque, upon their compliance with the conditions specified, within 15 days from its passage, and provided that if any of said banks should fail to comply within the time limit that the designation of such bank failing should stand revoked, leaving the bank, or banks, specified, which should comply with the ordinance, as the sole lawful depositories. The conditions contained in this ordinance were, in substance, that the banks should within five days give notice to the city treasurer of their intention to comply, and give bond in a sum specified by the treasurer, and to be approved by the council, for compliance with the ordinance and accounting for the money, and also that they would pay to the city interest at 3 per cent. on daily balances on all city money held by them subject to check, and at 4 per cent. on all city moneys so held, not subject to check. The ordinance further provided that the balances in all three banks should be kept as nearly equal as convenient, and required the treasurer to deposit and keep all city funds in his hands in the banks qualifying under this ordinance. Only one of the banks specified, namely, the State National Bank, qualified under the ordinance. It gave notice to the treasurer of its intention to qualify, and the treasurer, refusing to fix the amount of the bond to be given by the bank, it tendered to the city council a bond in the penalty of $350,000, and the same was received and approved by the city council. A resolution was thereupon passed by the city council reciting that the State National Bank was the only bank qualifying, and that the amount of the funds it was entitled to receive would be in excess of one-half of the penalty of the bond so approved, and therefore requiring the bank to give an additional bond to cover the excess, or, at its option, a new bond in the penalty of $500,000. The new bond was accordingly given and approved by the council, which thereupon declared the State National Bank the sole lawful depository of public moneys belonging to the city under the ordinance. Due demand was made on the city treasurer by the city for the deposit of said funds, and upon his failure and refusal to do so, an alternative writ of mandamus was sued out by the city against the treasurer to compel such deposit. The treasurer answered, not denying the allegations of the writ, but contending, in substance, first, that the city was not the proper party to apply for the writ; second, that the council was without power to designate a depository; and, third, that the treasurer had a lawful right to select his depository and had designated the First National Bank of Albuquerque as such depository. The city thereupon moved for judgment in its favor on the pleadings, which the court denied, and, instead, gave judgment for defendant, dismissed the writ, and allowed the relator an appeal therefrom. The relator, upon the appeal, has assigned the following errors: (1) Because the court erred In overruling the motion of the relator for judgment upon the pleadings. (2) Because the court erred in awarding final judgment dismissing the proceedings upon the facts alleged in the petition and writ, and admitted by the answer. (3) Because the court erred in the judgment granted by it herein.

The condition of the respondent below was based upon three grounds: First, that the city of Albuquerque is not the party beneficially interested in the proceedings; second, that section 2424 of the Compiled Laws of 1897 is the only section purporting to grant the right to the city council to designate depositories, and this section is contradictory and void; and, third, that if the council ever were empowered by law to designate a depository of the city moneys that law was superseded and repealed by chapter 122 of the Laws of 1909, which requires the treasurer himself to designate such depository.

H. J. Collins and Marron & Wood, for appellant. M. E. Hickey, A. B. McMillen, and Mann & Venable, for appellee.

WRIGHT, J. (after stating the facts as above).

1. The claims of the respondent that the relator, the city of Albuquerque, is not the party beneficially interested within the meaning of section 2762, Comp. Laws 1897, are negatived by the facts stated in the record. It there appears that the city was the owner of a considerable sum of money, more than $175,000, and presumably about $250,000 in the hands of its treasurer, and that if it should be deposited in the bank designated by ordinance the city would receive interest for it at the rate of 3 or 4 per cent. That certainly creates a beneficial interest in the city to have the deposit made.

2. The question whether under section 2424, Comp. Laws 1897, a city had the right to designate a depository of its money in the hands of its treasurer, turns on the meaning of the word “custody,” as used in the statute. The appellee claims that the provision “he may be required to keep all moneys in his hands belonging to the corporation in such place of deposit as may be designated by ordinance,” is contradicted and rendered nugatory by the words immediately following, “Provided, however, no such ordinance shall be passed by which the custody of such money shall be taken from the treasurer.” It should be borne in mind that the money is all the time the property of the city and not of the treasurer; that his duty is to receive it for the city and with it pay claims against the city which have been duly approved. Everything else is, or should be, subsidiary to this main object. In that connection, the word “custody” must mean immediate charge and control under the law, and not the final absolute control of ownership. Suppose a person to be carrying on a business through a manager, and that he directs him to deposit all the money he receives in a certain bank in his own name as manager, and subject only to his checks as manager, could it be said with any show of reason that the money is not in his custody because he did not select the bank of deposit? And is a prisoner any less in the custody of the jailer because he holds him in a jail provided by the county and designated by law as the place of confinement for such a prisoner? If by the ordinance in question the city had, for instance, required the treasurer to deposit in the joint names of himself and some other officer of the city, and that payments from the deposit should be made only by checks signed by both such depositors, that obviously would have been calculated to deprive him of the custody of the money. But the mere designation of the bank in which he shall deposit, in his own name, and subject only to his own checks, as treasurer, without in the least restricting his right to pay out the money according to law, is not depriving him of the custody of the money. Rolland v. Commonwealth, 82 Pa. 306, 319, 22 Am....