The State v. Williamson
| Decision Date | 21 November 1893 |
| Parties | The State v. Williamson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Reversed.
L. F Bird and A. F. Smith for appellant.
(1) The contracts in question were in contravention of the United States Statutes. Revised Statutes, United States, secs. 3477 3737; United States v. Gillis, 95 U.S. 407; Erwin v. United States, 97 U.S. 392; Spofford v Kirk, 97 U.S. 484; Goodman v. Niblack, 102 U.S. 556; Bailey v. United States, 109 U.S. 432; Railroad v. United States, 112 U.S. 733; Hobbs v. McLean, 117 U.S. 567; Freedman v. Shepherd, 127 U.S. 494; Butler v. Goreley, 146 U.S. 303. (2) The contracts were void, being executed as security for a usurious claim. Laws of Missouri, 1891, p. 170; Loan and Trust Co. v. Baker, 2 Mo. Leg. News, 603. (3) The assignment was void under the rule of public policy that a public servant cannot assign his unearned pay. Beal v. McVicker, 8 Mo.App. 202; Bliss v. Lawrence, 58 N.Y. 442; Schwenk v. Wyckoff, 46 N.J.Eq. 560; Field v. Chipley, 79 Ky. 260. (4) Section 3549, Revised Statutes, under which the defendant was convicted, provides that the embezzled property must come into the defendant's possession "by virtue of his employment or office." It did not so come into Williamson's possession.
R. F. Walker, Attorney General, Marcy K. Brown, Prosecuting Attorney, and J. J. Williams, Assistant Prosecuting Attorney, for the state.
(1) Section 3737, United States Statutes, prevents the assignment of a contract, and, therefore, is wholly immaterial here. Hobbs v. McLean, 117 U.S. 567. Section 3477 declares the assignment of any claim against the United States to be null and void. Spofford v. Kirk, 97 U.S. 484, is the decision which appellant and his confreres expected to save them from the certain punishment they would meet if not employees of the United States. But the force of that decision has been, as to the point in this case, totally impaired. In sustaining and applying the statute in question, that decision laid down its propositions too broadly. Goodman v. Niblack, 102 U.S. 556; Bailey v. United States, 109 U.S. 432. As a matter of fact, the supreme court holds that statute to mean, not that the assignment is "absolutely null and void," but that it is voidable at the option of the government or its officers. Bailey v. United States, 109 U.S. 432. Where the government has recognized an assignment, the parties to it cannot claim that it is invalid. Goodman v. Niblack, supra; Bailey v. United States, supra; Savings Co. v. Shepherd, 127 U.S. 505. The reasoning of Banks v. Hastings, 15 Wis. 78, seems conclusive against defendant. There is no question of usury in the case. (2) Even if the assignment was illegal because against the statute referred to, or against public policy, or both, nevertheless if the money came into defendant's hands by virtue of his agency, and he converted it to his own use with intent to deprive the owner of it, he is guilty of embezzlement. The illegality of the transaction is no defense. State v. Shadd, 80 Mo. 358; State v. May, 20 Iowa 305; Com. v. Cooper, 130 Mass. 285; Com. v. Rourke, 10 Cush. 397; State v. Turney, 81 Ind. 559; Dunlap's Paley's Agency, 62. The right by suit at law to collect debts contracted in an illegal traffic may be forfeited, but money received in such traffic is still property which the law protects against wrongdoers. Commonwealth v. Smith, 129 Mass. 111. Though the law would not have assisted Mulholland by enforcing the payment to him by the government of the account assigned, still, when that money was paid to his agent, such agent can have no pretense to retain it. Express Co. v. Lucas, 36 Ind. 369. The defendant admits that he collected the money with the intent to convert it to his own use, with intent to deprive the owner thereof absolutely.
-- At the January term, 1893, of the Jackson criminal court, the defendant was indicted, charged, under the first count, as agent of John Mulholland, with embezzling the sum of $ 107; under the second, with grand larceny of the same sum. At the same time he was arraigned and entered his plea of not guilty, and the cause was continued until the April term, 1893.
At said April term he filed a demurrer to the indictment, which was by the court overruled, whereupon he was tried, convicted, and his punishment assessed at imprisonment in the penitentiary for a term of two years. After unsuccessful motions for new trial and in arrest he appealed to this court.
The facts in this case are that, in November, 1892, the defendant was employed as a mail carrier in the postoffice department at Kansas City, Missouri, at a salary of about $ 107 per month. November 30, 1892, defendant sold to John Mulholland the salary he would earn for the month of December for $ 100, giving an order to Mulholland on the postmaster for that sum. Then, to prevent the postmaster from learning of the loan, Mulholland appointed defendant his agent to collect the same. Defendant afterward sold the same salary to other parties, and when it became due collected it from the government and refused to pay it over to Mulholland.
The contract between the defendant and Mulholland, which was read in evidence by the state, is as follows:
The vital question in this case and the one upon which this prosecution and conviction must stand or fall is as to the validity of the contract between the defendant and Mulholland. If the contract was void because against public policy, then the defendant must be discharged, not being guilty of any criminal offense under the statute.
It will be observed in the outset that the contract was for the sale of the unearned salary of defendant as mail clerk in the United States postoffice at Kansas City, Missouri, for the month of December, 1892. The rule of law is well established in England that such contracts are absolutely null and void as being against public policy. This subject was under review in the case of Bliss v. Lawrence, 58 N.Y. 442, where all the authorities, both English and American were reviewed, and it was held that the assignment by a public officer of the future salary of his office is contrary to public policy and void. See, also, Schwenk v. Wyckoff, 46 N.J.Eq. 560; Field v. Chipley, etc., 79 Ky. 260; Beal v. McVicker, 8 Mo.App. 202.
It will also be observed that in the cases of Brackett v Blake, 7 Met. 335; Mulhall v. Quinn, 1 Gray 105, and Macomber v. Doane, 2 Allen 541, which are sometimes referred to as announcing a different rule, the point of public policy was not considered by the court in either of them, but that the questions involved in them were regarded as relating altogether to the sufficiency of the interest of the assignor in the future unearned salary to...
To continue reading
Request your trial