The Winchester Electric Light Co. v. Veal

• Court: Indiana Supreme Court
• Writing for the Court: Howard, J.
• Citation: The Winchester Electric Light Co. v. Veal, 145 Ind. 506, 44 N.E. 353 (Ind. 1896)
• Decision Date: 19 June 1896
• Docket Number: 17,508
• Parties: The Winchester Electric Light Co. et al. v. Veal

44 N.E. 353

145 Ind. 506

The Winchester Electric Light Co. et al. v. Veal

No. 17,508

Supreme Court of Indiana

June 19, 1896

Original Opinion of September 19, 1895, Reported at: 145 Ind 506.

Howard J. McCabe, J., dissents.

OPINION

Howard, J.

Appellee, having filed a petition for rehearing, we are first met with the motion of appellants to dismiss the petition for the reason, as claimed, that before the filing of the same, the appellee had ceased to have any interest in the judgment appealed from, having received large payments thereon, and having assigned and transferred, without recourse, the unpaid part thereof. A reference, however, to the certified transcript of payments made and of the assignment of the judgment shows that the appellee still retains some interest in the judgment, at least to the extent of his attorney's fees. The motion to dismiss must, therefore, be overruled.

The appellee has filed elaborate and earnest briefs in support of his petition for a rehearing of the appeal; but we are satisfied that no sufficient reason is shown why the conclusion heretofore reached by the court should be disturbed.

A good part of the principal brief is occupied with a discussion of the proper punctuation of the penal statute violated in this case. (Section 2019, R. S. 1894, section 1942, R. S. 1881.) Were we disposed to follow counsel in this matter, we might observe that the history of the enactment of the statute militates against the argument here made. Three of the most eminent legal minds of the State, Judge Frazer, Senator Turpie and Mr. Stotsenburg, on appointment of this court and in pursuance of the provisions of the statutes, were charged with the compiling and publishing of the revised codes of 1881, including the section in question. (Acts 1879, 192, Acts 1881, 605.) If those accomplished jurists were of opinion that any doubt rested on the interpretation to be given to the clauses relating to the loaning and to the depositing of public money, they resolved such doubt in favor of the interpretation which we have given; and, by inserting a semi-colon instead of a comma between the clauses, showed that they understood that the phrase "contrary to law" applies to "deposits," and not to "loans;" that loans are prohibited absolutely, and deposits only when made contrary to law.

We can, however, see but little that is controlling in this matter of punctuation. If there were neither comma nor semi-colon between the clauses, the interpretation, as we think, could not be different. Taking the words as they stand in the original act and section (section 41 of the act concerning public offenses and their punishment, Acts 1881, 182), and we find it declared that whoever, whether State, county, or other public official, being charged with the collection, custody and disbursement of public funds, "converts to his own use, or to the use of any other person or persons, corporation or corporations, in any manner whatever, contrary to law, or uses by way of investment in any kind of property, or loans, either with or without interest, or deposits with any person or persons, corporation or corporations, contrary to law, or exchanges for other funds, except as allowed by law, any portion of such money," shall be guilty of embezzlement, etc. "Contrary to law," or an equivalent phrase, is here used three times; and in each case clearly, as we think, qualifies the clause with which it stands in immediate connection. See, as bearing on this matter of construction, Am. Trust and Savings Bank v. The Gueder, etc., Mfg. Co., 150 Ill. 336, 342, 37 N.E. 227.

Refinements of punctuation are not needed here. Provided there be ordinary intelligence, it would seem that the language is so clear that he who runs may read and understand: An officer may not use the public funds by way of investment in any kind of property or business; neither may he loan such funds either with or without interest; but such official is required to keep the public moneys in a safe place, ready to be paid over to the proper person whenever demanded; he may, therefore, provided he is not forbidden by law, deposit such money in a bank, subject to his check. A bank is usually a safe place to keep funds. It is true, that some risk is taken in making such deposits. The bank may fail, and the money be lost. The public official who deposits money in a bank must take that hazard; if the money is lost, he shall make it good. But, so long as there is no law against making such deposits, he may exercise his judgment as to making them; and the making of such deposits will not subject him to the charge of embezzling the public funds in his charge. Meridian Nat. Bank v....