Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-01-22
Interest Moneys Belong to Whichever
Party Owns the Funds That
Earned Them.
Custom Not Such Practical COnstruc,
ton Of the Law as to Be of Con-
trolling Influence.
THE DECISION.
A Verdict In Favor of the State by Judge
Newman.

ObdI6 Vi w lSCOuSlR VS.. htGIy ID. ItL =
shaw and others.
These are two actions against former
state treasurers and their suretles to re-
cover money which the treasurers re
celved from certain banks for the use Of
public money deposited with them, and
which they have failed to deliver to their
successors In office. The two cases de-
pend mainly on similar facts, and the
questions OF Jaw are very much the same !;
SO they were tried and are decided to.
gether for convenience.
Mr.. Nc etridge was treasurer for i've
years, from 1882 to 1887 Mr.. Harshaw
from 1887 to 1891, four years. During
these terms of office the law fixed the sal
airy OF the Office at S., 900 per year, and,
at the same time, declared that that sum
''shall be in full for all services rendered
by him in his official capacity" This sum
is equal to the largest salary paid to any
officer in the state. 1t is equal to the sal
airy paid to the governor and to the JUS
tees OF the supreme court. The duties of
the office Of state treasurer require from
him little besides good bookkeeping and
suitable care to keep tie public money
safely. He is not in any impor ant sense
the state fnancier. The general manage
ment Of the finances of the state is con-
fded to three commissioners, of whom the
treasurer is one
These defendants during their respect
i've terms kept large sums of the public
money deposited in banks and received
from the banks, for the use of it, large
sums Of money, several time larger than
the salary allowed to their office by
law. This interest money they did not
account for to the state, nor deliver TO
their successor in Office, but kept as
their own. The evidence tends to show
that earlier treasurers had uniformly
done the same, but with much less of
system and smaller profit. 1t is to re-
cover these interests moneys that these
actions are brought.
1t may be assumed for the purpose of
The decision that these interest moneys
belong to which ever party shall be found
to nave been the owner of the fund
which earned them. This is the general
rule of law, and no circumstance seems TO
make this case exceptional. Indeed
it is understood that there was no dis
sent from this proposition on the argu-
ment
Interest upor. fund is necessary to the
fund, and becomes a part Of it. The fund,
as so increased by interest, belongs to the
owner of the original fund.
In this action, it is claimed for the state
that the principal fund, which earns this
interest, was this money of the state. On
the ground that the interest was an accre-
ton to that fund, The state claims to re-
cover it in this action. For the defendant,
it is denied that the principal fund was the
money of the state; but, on the contrary,
it is claimed that it was the treasurer s
own money and that, for that reason, he
has the right to retain the interest which
it earned. So, the issue is, practically,
whose money was it that earned the inter
est. The decision will bea necessary con
sequence from the answer to the question.
1t seems TO be fair to assume that money
which is received into the state treasury
is the states money until, in some way,
it is satisfactorily shown or demonstrated
that is not the states money. So it should
seem that the burden Of the argument is
upon the party who denies that it, the
principal fund, is the state's money.
The argument by which this is said to
be demonstrated is this: The treasurer
gives bond with sUreties for the faith
ful discharge Of the uties Of bis Office.
On this bond he and his sureties are la
BILE to the stale In the amount of the pen
atty Of his bond, to account for and pay
over, all the money which shall come to
his hands by virtue of his Office abso
lu ely and in every event. That in
no event, whatever, can he be
excused from such payment. Hence
it is inferred that he at once, upon the ex-
ecution of his official bond, becomes an
absolute debtor to the state in the
amount o. the penalty of his bond.
From the fact that ne is so an absolute
debtor, it is again inferred that moneys
which are received into the state treasury
become the treasurer's own money, and
that his bond stands to the state In place
of the money. This is also said to follow
logically, from the premises that he is an
absolute debtor on his official bond.
The ownership Of the fund and the liabil-
ity are said to be co extens. We.
The whole argu ment rests upon the
premises that the treasurer is liable in
every event. If in any circumstance of
loss be is not liable the argument fails. No
case has been found where it has been
held that the treasurer IS liable when the
money has been lost without bis fault, by
the act Of God or of the public enemy
The only case where the question was
involved is, United States against
Thomas, Is Wallace, 337; in that case it
is held that for such loss be is rot liable.
In that event he is excused for losing the
public money. 1t would be no excuse for
not paying over that he had lost his own
money by whatever means. This makes
the responsibility of the custodian of pub
lie funds the same as the common Law
responsibility of the common carrier He.
also, is excused for loss by the act of God
or the public enemy. 1t has not been
claimed that the common carrier, by rea-
son OF his strict res possibility, becomes
the owner of the goods he carries.
This is an open question In this state.
It is to be decided according to what shall
appear to be the better reason. 1t does not
seem that public policy shall require state
treasurer, who keeps the public funds
faithfully IN the place designated by law,
shall be held liable for public money lost,
without his fault by the act of God or the
public enemy; for example, by an earth
quake, which should ingulf the capitol, or
by an invading army which should capture
it. But there are many decided cases In
which the Judges assume and say that the
treasurer Is an absolute debtor, and, as a
corrailary, that the money is his own.
This conclusion does not seem to be a
necessary Inference from the premises, and
Is denied in some of the cases where the
absolute liza bIlIty IS assumed, As in County
Henpepin VS. Jones, Is Mimi, 1872, but
these are cases mostly, if not all, in7olv-
ing the liability of town, county, or local
reasurers or collectors of public money.
and for that reason are not strictly In
point in this case. Fer ordinarily the
statutes relating 20 the management ard
nreseryation of the public funds by the