The record-union., 1895-02-16
INSURANCE COMMISSIONER WILSON
Responsible for Fees Swallowed by a
Bank Failure.
Thus Decides Judge Johnson In the
Suit to Compel the ex-
Official to Pay Up.

Superior Judge Johnson yesterday rem
dered Judgment in favor of the plaintiff
in the suit of the People against ex-
Insurance Commissioner j. N. E. Wilson
to recover $2,99S Al with interest, which
sum, it is alleged, Wilson failed to turn
into the State.
In his answer to the complaint Wilson
alleged that for the purpose of safe-keep-
ing he deposited the money in the Pacific
Bank of San Francisco, with the inten-
ton, when the proper time arrived. tc
pay the same into the State Treasury, the
bank at that time being a solvent institu-
ton; that in the latter part of June. 1898,
the bank suspended payment, and that
by reason thereof he was unable to make
the payment to the State.
The Attorney General moved o,strike
out all that portion Of the answer and
judgment on the pleadings. He also
commended that the defendant was held to
strict accountability for all moneys re-
ceived by him as Insurance Commits
sioner. and that it was his duty to pay
the same, regardless of any excuse.
Judge johnson, in ahis decision, says
that the Supreme Court OF the y nited
States, in the case of the United States VS..
AAOIDoS NlO w dll OtOJy 16laASu LllS RUE
and excused collector, even from his
bond, on account OF overruling necessity
where Ii appeared he was without fault.
In the case OF the United States VS.. Pres
colt q Howard, 57S), the officer was
robbed by robbers, while in the case of
Thomas he was robbed by q public
enemy. Each party robbed was equally
without fault. But the relaxation of the
rule has been sufficient for the highest
courts of many States to follow in it's
lead, and to-day the weight Of authority
is to that effect. If there is no statutory
duty prescribed, an officer in handling
public moneys is charged with the same
liability as bailee for hire would be
charged at common law.
''If this be the rule" Judge johnson
continued, 1--WE must look to the statute
governing the Insurance Commissioner
and see whether his common law liabili-
ties are restricted or enlarged.
Section 6O6 OF the Political Code says
the Commissioner must collect all fees
and assessments and pay monthly into
The State Treasury whatever amounts
may be received and collected by him.
This Is the only section that makes any
provision relative to the funds which he
may receive or collect.
III the officer deposits money coming to
him IN his official capacity in a bank for
safe-keeping, he must keep strictly in
the line OF his Official capacity. 1t must
be placed upon special deposit, so that it
may not be mingled with other funds of
the bank. It's separate character must
not be changed, and If the officer permits
it to be changed he has not, in my mind,
used ordinary care.
Il will not here say that if this officer
had placed the money on general deposit
in the name OF the State, or in his own
name in his official capacity, that he
would be held liable, but l am inclined
to think such would be the case, because
he would have exceeded his authority.
The State is not engaged in banking its
money, iand its agent is not justified in
doing what the State would not do. The
Commissioner was required by law TO
pay over every month, hence he should
have confined his deposits to special
ones.
But here, so far as is displayed by his
answer, he neithor made a special deposit
nor did he even take the precaution to
deposit in the name Of his principal or in
any manner designate the character of the
deposit.
The answer is subject to general de-
murrer. None has been made, but a
motion was made for judgment on the
pleadings. There being no defense stated
| think this motion should be granted
1t is so ordered.'