Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-01-21

l SA1 NoAe Aoi Diue Guilty NOV. L & anC
lasted nearly two weeks. The state wa
represented by Attorney General O'Con
nor, R. NJ. Bashford and Senator W. F
Villas; the defense by S. Q. Pinney, o
Madison; c. W. Felker and A. W. Weis
brod, of Oshkosh, and Joshua Stark and J
'. Quarles. of Milwaukee. Judge New
man has had the case under advisemen
since Nov. %.
An appeal will of course be taken to tn,
supreme court, but a decision from tina
tribunal can hardly be expected inside Of
the present year.
| The following IS Ike full text of Judg,
| Newman s decision:
State of Wisconsin VS.. Z. C. McFetridge
and others.
State of Wisconsin VS.. Henry B. Har
| shaw and others
| These are two actions against former
state treasurers and their sureties to re
cover money which the treasurers re.
celved from certain bank, for the use oil
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 law are very much the same:
so they were tried and are decided to-
gether for convenience.
MIR. McFetridge was treasurer for five
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., 1000 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 eqauI to the sal
arr paid to the governor and to the jus,
tlces Of the supreme court. The duties Of
the office of the state treasurer require
from him little besides good bookkeeping
and suitable care to keep the public money
safely. He is not IN any Important sense
the state hnancier. The general manage
nent of the finances of the state is con-
hded 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 times 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 bad uniformly
done the same, but with much less of
system and smaller profit. Il is to re-
cover these interest moneys that these
actions are brought.
II may be assumed for Che purpose of
the decision that these interest moneys
belong to whichever party shall be found
to have 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
1t is understood that there was no dis
sent from this proposition on the argu
ment
Interest upon a fund is accessory to the
fund, and becomes 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 the 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 defend
ant it is denied that the principal fund
was the money Of the state, but, on the
contrary, it il claimed that it was the
treasurer's own money and that, for that
reason, be has the right to retain the in
terest which it earned. So, the issue is,
practically, whose money was It that earn
ed the interest The decision will be a
necessary consequence 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 wa9,
it is satisfactorily shown or demonstrated
that it is not the states money. So it
should seem that the burden Of the argu
ment is upon the party who denies that it,
the principal fund, is the states money.
The argument by which this is said to
be demonstrated is this: The treasurer
gives bond with sureties for the faith
full discharge Of the duties of his office.
On this bond he and his Sureties are LA
BILE to the state 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 MS office abso-
lutely IN every event, whatever, can be
be excused from such pa ment. Hence
it is inferred that he at once, on the ex
ecution of his official bond, becomes III
absolute debtor 10 the state in the
amount of the penalty of his bond. From
the fact that he is an absolute debter, it
is again inferred that moneys which are
received into the state treasury becomes
the treasurer own money, and that HE
bond stands to the state in place of tn
money. This is also said to follow log
ically, from the premises that he Is an alb
soIute debtor on h is official bond. The
ownership of the fund and the liability
are said to be co-ext ensive.
The whole argument rests upon the
premises that the treasurer is liable In
every event. If In any circumstance Of
loss he is 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 his fault, by
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 not 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 also been
claimed that the common carrier, by rea
son of his strict responsibility, becomes
the owner of the goods De 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 shalt ap-
pear 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 bV