The record-union., 1899-04-08
BELONGS IN THE TREASURY.
UNEXPENDED FUNDS OF STATE
INSTITUTIONS.
Decision in Favor of State Con-
troller Colgan and Against
the Napa Asylum.

Yesterday Superior Judge Hughes
rendered his decision in the case OF
State Controller E. p. Colgan against
the Directors of the Napa Insane Asy-
lum for the return to the State Treas
ury of certain unexpended moneys OF
an appropriation made by the Legls-
iature some years ago, the decree peliis
in favor of the Controller. Following IS
THE DECISION IN FULL:
e. P. Colgan, as Controller OF the
State of California, VS.. the Board Oh
Managers of the Napa State Hospital
and II. H. Harris, E. E. Washburn,
Raleigh Barcar, as constituting SAID
Board of Managers, and c. u. SeeleS'
as Treasurer of said hospital
This is an application made by the
Controller of the State for a writ OF
mandate to compel the Board OF Man
ayers and the Treasurer of the Napa
State Hospital, the successor TO the
Napa State Insane Asylum, to pay INTO
the treasury of the State of California
the sum of 81, ,45O.65.
The defendants have demurred to the
petition on two grounds, viz: That the
same does not state facts sufficient to
constitute a cause of action, and that
the petitioner is not entitled to any
relief by reason of the bar of the stat
ute of limitations.
From the petition it appears that the
Legislature of the State of California.
in 1889 (Statutes of 1889, page 90 ap-
propriated the sum of $40, ,569.47 to pay
the deficiency in the appropriation for
the maintenance Of the Napa Insane
Asylum for the thirty ninth and forti-
eth fiscal years; that after all of such
deficiency had been paid there still re-
mained in the hands of the Board or
Managers of said institution the sad
sum of 81, 1906 Under the law, as 1t
existed at the time of this appropriation
in 1889, it was the duty of the Board
of Managers of said asylum to draw
from the State Treasury, on the Con-
trollers warrant, the total amount OF
money appropriated for the main
tenance of said asylum, and retain the
same in the treasury of the asylum
until it should be expended in the prop
er payment of such maintenance.
The Legislature of 1897, however,
changed this rule by making it the duty
of the Board of Managers TO quarterly
prepare an estimate of the expenses
necessary to maintain said asylum, ana
in accordance with this estimate, after
the same had been approved by the
Insanity Commission, the Controller
should draw his warrant on the STATE
Treasurer, and thus money TO de1ray
the exepneses for such quarter was
placed in the hands of the Treasurer OF
the Board of Managers. (Statutes OIL
1897. page 321)
The petitioner contends that, with the
adoption of the Act of 1897, it became
the duty of the said Board of Man
ayers to pay said sum of 81, I,4oO-6o INTO
the State Treasury, and he demanded
such payrnent of such board and said
board refused to comply thereWlth- III
justification of that refusal the Board
of Managers insist that, under the pro
visions Of Section 2223 of the Civil
Code of this State, which PROVIDES;
.sOne who wrongfu1ly detains thing
IS an involuntary trustee thereof for
the benefit of the owner" said board
is an involuntary trustee of said fund,
and that they have been such since the
close of the fortieth fiscal year, in 1889,
and also that this proceeding not hay
ing been taken until the year 1899, the
same is barred by the statute Of linn
itations.
In this contention, however, 1 am
unable to concur. The defendants and
their predecessors in office are and
were agents of the State, and received
said money as trustees Of an express
trust. That is to say, they took the
oath of office and entered upon the dls-
charge of their duties as managers Oh
said asylum. Among other duties, 1t
was incumbent upon them to receive
such moneys of the State as might law
fully come into their hands, and to pay
out the same as required by law. II
the defendants are correct in their con-
tentfon. it would be tantamount to the
conversion of an express trust into an
implied trust by a mere failure to con-
form to the requirements of the ex-
press trust. This certainly cannot be
the rule.
1t is well settled that the statute OF
limitations never commences to run IN
favor of a trustee of an express trust
and against the cestui que trust until
the trustee has repudiated MS trust