Mineral Point tribune. (Mineral Point, Wis.) 1869-1938, 1893-01-14

bond in suit A lawful act cannot be
rendered unlawful merely because the
actors intended to follow it by an ,Ii-
lawful act So when the treasurer law
fully receives money which Of right be
longs to his office, he receives it by yir-
tue Of his office. and cannot hy forming
and executing an intention TO retain the
money as his own, diyest the act of re-
ceiying the money Of its official char
acter The fact remains that lie re-
ceived it virtue ofiicii This is a most
( salutary rule which should never be de-
parted from unless clearly abrogated by
some statute. We find no such statute
I'm this state.
! Probably some Of the above decisions
were influenced by special statutes. At
/ least such seems to be true of the Hi
+ nois cases. Yet it is believed that IN all
+ those cases the general rule of law is
laid down and enforcd which, as applied
/ to this case, is that the interest on the
deposits in question received by Treas
urcr McFetridge, was an increment 10
the funds Of the state deposited by him
Y
that the right to such interest was
thereby vested in the state, and on re
ceipt thereof by Treasurer McFeuidge
it became and was money in his hands
belonging to his said office. He not
having accounted therefor, this action
by the state on his official bond to re-
cover the same may he maintained.
7 A large majority of the adjudicauons
cited in the arguments Of the case,
aside from those specifically commented
upon herein may be classified as fol
lows:
a. Those which hold that the officer
owns the public funds which came to
his hands, and for that reason cannot be
required to account for gains derived
therefrom,
C2) Those which hold that although
the officer is not the owner Of the
funds, if he mlawfully use the same
for his own profit his gains cannot be
recovered in an action on his official
bond
81 Those which hold that he IS not
such owner and that his liza
bility to account for the pub
lie funds coming into his hands is
absolute, or at least equal to the com
mon law liability Of common carrier
for the safe transportation and delivery
of goods committed to it for carriage,
and yet that for any profit or gain made
by the officer out Of the use Of such
funds he must account to the owner of
the funds, whether the same was made
lawfully or unlawfully.
a. Those which hold that if
the officer, not being such owner,
makes gains out Of the pub
lie funds by the lawful use thereof,
such gains attach to the fund by way of
accretion or increment, and become a
part Of it, and belong to the owner Of
the fund. and If not accounted for m
action at law may be maintained on the
official bond of the officer, against him
and his sureties, TO recover such gains.
Having determined that the fund thus
deposited in banks by Treasurer Nc
Fetidge belonged to the state, we as
sumo the accuracy Of the rule held by
the cases i'm the second class above
mentioned, and under the rule of the
cases in the fourth class, which we ap-
prove, we hold Treasurer McFetidge
and his sureties liable in this action for
the interest in question.
Brief reference will now be made 20
the argument that certain legislation in
1876 went upon the theory that there
tofore interest on deposits was a lawful
perquiste of the treasurer which was
cut off by such legislation, and restored
by the revision Of 1873.
In February, 1876, Mr.. Keuhn, who
had Just entered upon n second term
as state treasurer, in reply to a resolu-
ton of inquiry stated to the senate that
during his first term as such treasurer
he received between $4,000 and S25,-
600 as interest on deposits of state
funds which he claimed the right to re-
tain as his own money in accordance
with the alleged practice OF his prede-
cesscrs in office. In March of that year
the legislature enacted Oh. 341 of 1876,
fixing the salary of the state treasurer
at $1,000 per year, and providing that
such salary should be lin full for all
services rendered by him in his official
capacity" It was also provided therein
that "all fees and perquisites received
by him from every Source slfah be phi
into the II ate treasury and become a
part general fund" (Sec 81
ii act should take erect on
Monday in January, 1878,
$50 = These provisions are retained
in the revision of 1878 in Secs. 157,
Subdivision 8, and 10, except the words
"and peuuisites" are omitted. The
argument is that the interest in con
troyersy is a ''perquisite," and that be-
cause the legislature did not cut off
such perquisites until the end Of Mr..
Keuhn's second term as state treasurer,
and made no provision requiring him or
any of his predecessors TO account for
the interest received by them respective
ly on deposits, the inference is plain
that the legislature Of 1876 were Of the
opinion that such interest was a lawful
perquisite Of the treasurer and by