Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-09-16

the defendant might De properly con-
sidered as an increment Of the state
fund We wish to be understood as
emphatically denying the proposition.
The money was not paid as interest,
or understood by anybody AS such
There is no contradiction in the testi-
mony that the banks intended these
payments as perquisite or gratuity
to the defendant personally. Neither
is there any doubt that the defendant
received such moneys. supposing in
good faith that in accordance with the
time honored custom and the practical
construction of the statutes by state
officers and departments that he was
entitled to such gratuities, and that
such moneys have always been treated
as though they We're the property of
the defendant, and have never i'll any
, way been mingled with the public
moneys The contract between the
state and the banks was evidenced by
certificates of deposit which bore no
interest or by IN ordinary open account
and the amounts so deposited Were
reported every quarter to the governor
and secretary of state.
The court below took the liberty of
assuming that the fund sued for WAS
interest Which had accrued for the u.s.
of the public moneys. This is Ole of
! tho vital questions to be adiudicated
, by this court. Tile contest should not
be forecloSed by judicial assumption.
| This question can not be settled intcli-
gently without careful consideration
of the origin and history of the practice
| which c1ystallized into the CUSTOM Of
/ allowing the state treasurclS some col
| lateral benefit for the deposit of the
state funds in particular banks.
! Mr.. Felker continued: BY section II
of chapter 273, laws of 1891, new
! duties were imposed upon the state
; treasurer rs follows:
/. ITO pay into the treasury, and ac-
! count for, all sums directly OF indirect
! ly received by him by virtue Of his Of
flee, or as interest or compensation for
the use, deposit or for bearance of any
public moneys i'll his hands, or under
his control"
1t is Obvious, if The contention of the
| state is we'll taken, that the passage of
of these new Gties upon the state tre;i-
sulers was wholly unnecessary.
Mr.. Felker declared with emphasis.
1T is the settled law, that where the
officers liability is absolute, he is not a
common law bailee or trustee, and is
not liable for any profit made by de-
post of the public funds
Great stress was laid in the court
below, said Mr.. Felker, upon section
$50, 4. S., which provides, that at stat
ed times the governor and attorney
general shall, examine and see that all
money appearing by the books of the
secretary of state and state treasurer
us belonging to the several funds, is in
the vaults of the treasury; and in case
Of a deficiency, shall require the treas
urer to make up such deficiency I'M
mediately, and if such treasurer shall
refuse or neglect, for ten days there
after, to have the full sum belonging
to said funds in the treasury, the at
torney general shall institute proceed
ings to recover the same"
Inc defendants claim that under sec
ton 159, the term vaults of the treas
ury'' did not mean the shaky little cup
board provided by the state at the cap
ital, commonly called the vault Of the
treasury.
That the word treasury" or vaults
Of the treasury" was not intended to
describe Any particular place or local
ity. That within the meaning Of this
| iS in ha n
ever and wherever it is III the control
of the treasurer, or subject to his drec-
ton or control The word treasury"
as used in this statute, has no more
definite signitication as to place or local
ity than does the word Heaven as to
place Of future abode.
If the state treasurer should be COM
PEELED to take a sum Of money for the
purpose of purchasing property for the
state, or paying indebtedness, or inter
est upon Indebtedness, and go to New
York or Chicago for such purpose, the
money would still be in the treasury rs
much as though it was locked up Iii one
Of the safes in the vault.
There is not, and never has been
continued Mr.. Felker, any statute of
this state prohibiting the employment
of the banks as an adjunct of the state
treasury, although the fact has been
generally known and officially certified
and entered upon the records in the de-
partment at Madison, and spread upon
the legislative journals that the public
funds have been uniformly deposited
and kept In the banks of the state.
In view & long acquiescence of
the state in the manner and mode Of
office Of treasurer, it is submitted that
il may not have relief in equity. For
more than thirty years before the de-
PENDANT Harshaw entered upon the du-
ties of bis O--4ce, all departments Of the
state, including the legislative, had full
knowledge of the way and manner III
which the business Of the state treas
urer was carried on.
The legislature, at any time, might
have done as it did in 1891, provide by
law for the deposit of funds lying idle,
and the disposition of interest paid on
| treasurer from his enormous liability
fer the safe keeping of the public
moneys. Instead of doing this, the
state has, for long series of years
countcnanced and encouraged what it
now claims to be a wrong. Has not
the state clearly sanctioned the manner
and mode of carrying on and doing
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