The Interstate National Bank v. Ferguson

• Decision Date: 11 June 1892
• Citation: 48 Kan. 732,30 P. 237
• Parties: THE INTERSTATE NATIONAL BANK v. J. W. FERGUSON, as Treasurer of Kansas City
• Court: Kansas Supreme Court

30 P. 237

48 Kan. 732

THE INTERSTATE NATIONAL BANK v. J. W. FERGUSON, as Treasurer of Kansas City

Supreme Court of Kansas

June 11, 1892

Decided January, 1892.

Original Proceeding in Mandamus.

THE opinion herein, filed June 11, 1892, contains a sufficient statement of the case.

Defendant's demurrer overruled.

Pratt Ferry & Hagerman, for relator.

:Hutchings Keplinger & Miller, for defendant.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of mandamus brought originally in this court by the Interstate National Bank of Kansas City, Kan., against J. W. Ferguson, the treasurer of such city, to compel him to deposit with the plaintiff all public moneys coming into his hands as city treasurer, including all moneys received by him under the provisions of § 189 of the first-class-city act. Sections 87 and 189 of the first-class-city act read as follows:

"SEC. 87. The city treasurer shall give such bond to the city as may be required by the mayor and council, said bond to be approved by the mayor and filed with the city clerk. It shall be the duty of the city treasurer, if so required by ordinance, to deposit daily all public money in some responsible bank, to be designated by the mayor and council, in the name of such such treasurer, as such officer, which bank shall pay interest on monthly average balances as may be agreed upon by such bank and the mayor and council. And before making such deposits, the said council shall take from such bank a good and sufficient bond, in a sum to be designated by the council, conditioned that such deposit shall be promptly paid on the check or draft of said treasurer; and in the monthly report of said treasurer, he shall state the amount deposited and drawn out of such bank during the previous month; and no funds shall be paid by said treasurer, except by check or draft on such bank; and all checks and drafts drawn by said treasurer on said bank shall be countersigned by the city clerk, who shall keep an accurate record of each check or draft so countersigned by him. And it shall further be the duty of the city treasurer, in his monthly report to the council, to make an itemized statement of the various sums received and paid out by him during the preceding month, from whom received and on what account; and said treasurer shall keep a separate account of each fund received by him, and shall credit each account with the funds received therefor, and charge each account with the amounts legally drawn thereon or paid out therefrom; and no money shall be paid out of one fund which belongs to another. All money paid to the city for licenses, taxes, or for any other purpose whatever, shall be paid to the city treasurer, who shall issue duplicate receipts therefor. One of said receipts shall be filed with the city clerk, who shall enter and charge to the treasurer the same in a book kept for this purpose; and the city clerk shall not issue any license until there is first filed with him a receipt of the city treasurer, showing the full amount of said license has been paid."

"SEC. 189. All fines or forfeitures collected by the police judge upon charges for the violation of the laws of the state shall be by him paid into the county treasury of the county in which said city is located, for the use of the common school fund of such county. All fines and forfeitures collected upon charges for a violation of city ordinances, and all fees of officers collected by the police judge under any act of the legislature or city ordinance for services, shall be paid to the city treasurer, to be held by him subject to the order of the board of police commissioners for the payment of the salaries of all officers under this law, and the expenses of the police department. And the mayor and council are required to set apart and pay monthly out of the general fund of the city such sum as may be necessary to pay the balance due for such salaries and expenses, after deducting the amount of such fines so paid to said treasurer. After the payment of the salaries of all officers under this law, and expenses of the police department, if there should be a surplus in the hands of the city treasurer, derived from fines and forfeitures collected by the police judge for a violation of city ordinances, such surplus shall be paid over to the general revenue fund of said city."

On December 26, 1891, a city ordinance of the mayor and council of said city took effect, sections 1 and 2 of which read as follows:

"SECTION 1. That the Interstate National Bank, of the city of Kansas City, be and the same is hereby designated as city depository for all funds of the city.

"SEC. 2. That the city treasurer is hereby directed to keep on deposit all of the city's funds in the bank designated in section 1 of this ordinance until otherwise ordered."

It is alleged by the plaintiff, among other things, as follows:

"That on December 9, 1891, the council of said city took from said Interstate National Bank a good and sufficient bond in the sum of $ 200,000, which sum was designated by said council, conditioned as provided by said section 641 of said statutes (said section 87); and it was agreed by and between the said bank and the mayor and council of said city that the said bank should pay interest on monthly average balances of such deposits at the rate of 2 per cent. per annum."

The plaintiff has complied with all the terms and conditions required of it under the statutes and the city ordinances and its contract with the city, to authorize it to receive the aforesaid moneys, provided a national bank may ever, under any circumstances, receive such moneys; but the defendant, as city treasurer, refuses to deposit with the plaintiff any such moneys; and the plaintiff, for the purpose of compelling the defendant to make such deposits, has brought this present action in this court. The defendant has demurred to the plaintiff's petition and alternative writ upon various grounds, some of which are wholly untenable and require no comment; but others demand our careful consideration. Among the points made by the defendant are the following: (1) It is claimed by the defendant that the aforesaid ordinance provides for depositing only the "funds of the city" or the "city's funds" with the plaintiff, which funds, it is claimed do not include any of the funds mentioned in § 189 of the first-class-city act. (2) It is also claimed by the defendant that the mayor and council have no control, under §§ 87 and 189 of the first-class-city act, or under any other statute or statutes, over any funds paid to the city treasurer under the provisions of said § 189, for the purpose of placing them in a bank or for any other purpose, for the following reasons: First, they are not city funds; second, they are "to be held by" the city treasurer and not by a bank; and, third, they are "subject to the order of the board of police commissioners," and not to the order of the mayor and council. (3) It is also claimed by the defendant that § 87 of the first-class-city act, so far as it provides for the depositing of any of the public money in any bank, is...