Brookings weekly register. (Brookings, Brookings County, S.D.) 1898-1903, 1899-04-27

the payment of interest upon such deposits
Va page 5O3 the supreme court says: The
authority 10 contract tor interest on sucn
deposits Is as broad as the right to make
| them, Ter the statutes contain no rsslrlc-
ton IN the matter OF such interest" Clear
| ~ The statutes III this state DO not allow a
contract TO be made for the payment OF a
proht upon the public funds by the state
treasurer. In the state there was also u
statute prohibiting the treasurer t:om
making an investment OF the public funds
Wlthodt the approval OF the governor, and
on page SIG the supreme court of Wlscon-
sin says: We are the opinion, there
tore, that IN making the deposits IN ques-
ton with banks Treasurer AcEettrldge did
not invest the state funds, and hence tnat
he did not thereby violate the statGtes
which prohibit him from so doing" On
page Jl7 OF the opinion the court IN sum
ming up the matter says: Having de;cr.
mined that the public funds which came
10 the hands Of Treasurer McFettridge be-
Ionged TO the state, and that he violated
no law when he deposited such funds in
, banks and stipulated for and received IN
terest thereon, we are next to determine
the third and last proposition or hypothe
s.s OF the defendants, which was that any
interest he may have realized on such de-
posts belonging to him individually" and
the court having decided that the deposit
was legal that the same Injured to the ben.
eiit OF the state. In this case and the SUI
preme court of Wisconsin reviews the Col
orado case above cited, and in reviewing
It the supreme court Vt Wisconsin says,
(referrlng to the Colorado statutel: The
act lndUstrlousy excludes state trea Surers
p, from MS requirements and penalties" Be
cause 1t does so the court held that the
state bad no right of action against tne
state treasurer, and of course none against
the suretes on his official bond, to recover
the interest rpgplVaI and rnta atnpR nv hi ip,
70 his own use on such deposits of the pub
he funds. THIS ruling alone was necessa-
rlly decisive Of the case. Because we have
no such statute in this state the case IN
that aspect Of it does not aid us IN the de-
termination of the present case.
In the Wisconsin case they also review
the case Of Renfroe VS.. COlquitt, supra and
say: II we read the opinion OF the ma
1ority Of the court correctly, it was held
that It appeared from the complaint that,
IN making such deposits Of the public funds
the treasurer violated a penal statute of
the state, and that, in the absence of any
statute emitting the state 10 the interest on
such deposits, the state could not maintain
an action therefor on the official bond OF the
treasurer, TOR the reason that, having re-
celved the money claimed through the in
strumentality and by means OF an Illegal
/ and pepal act, the treasurer did not lr-
Ceive the same by virture of the Office"
Thus 1t will be seen that the supreme
court of Wisconsin does not undertake TO
say that the decision in the Colorado case
and the Georgia case was not correct, con-
slderng the constitution and laws of
those states, bat distinguishes the Wiscou-
sin ease from the Georgia and Colorado
cases on account Of a difference in the stu
tutes relating to the liability of the treas
urer and his bonGsmen and in relating 70
, the Liability OF the treasurer and his bonds
men and in relation to the penal character
of the act OF the treasurer in receiving in
terest on public funds.
There are other cases in Indiana and in
Kentucky, and perhaps in some other
states. (See % Ind. 347; 50 Ind. 33l; 10 Ind
2i0, ana Il ;. w. 1877, a Kentucky case,
which held that the state is not entitled 10
interest upon the pubic money deposited
by the treasurer, because it is held tnas
the legal title 10 the money is IN the treas
urer and not in the state. 1t does not seem
TO me, however, that this position Is tena-
bic. 1t seems 10 me that legal title TO the
money in cases OF this character is in the
state, and not in the public official who
may be for the time being the custodian
thereof. However, Section l73 OF the con-
sthution of Kentucky reads as follows:
The receiving, directly or indirectly, by
any officer OF the commonwealth, or OF any
county, city or town, or members or Off
GERS of the general assembly, of any inter
tsI, pIUHt OF ptiuGislIts arising from inc
loan or use of public funds in his hands, or
moneys to be raised through his agency
for state, city, town, district or county
purposes, shall be deemed felony. Said
otfense shall be punished as may be de-
scribed by law, part OF which punish
ment shall be disqualified to hold office, :
which you will observe is not materially
different from our own constitution, aud
under it the court OF appeals OF Kentucky
decides that the treasurer is not liable for
the interest ne has received upon pupnc
| mone..
Tn United States supreme court in the
case OF the United States VS.. Mosby, 1873 Y.
s. 273, decided that interest on public
money deposited by the United States con-
sui belonged to the United States and not
to the consul. They make no discussion,
however Of the proposition, and 1T is oniy
d small item in a long accounting and 1t Is
difficult to tell whether they base it upon
a statute of the United States or upon a
general proposition OF law.
There may be some other cases and some
other authorities upon this question, but
the foregoing are representative, and IN
clude, | think, all the cases decided in the
| United States III the courts of last resort
which may be considered squarely in point
upon the legal questions involved in wbat-
ever prosecutions may be determined upon
on account of the evidence stated in your
.
For the purpose OF this communication
| assume that all of the facts stated In
your communication of January % are true,
and that proper investigation in a court
Of law would disclose that the treasurer
had in fact received interest upon the de-
posits made by him in the various banks
| I merely draw your attention to the
above authorities in order that you NAV
see, and il you see ft to lay this communi-
cation before the legislature, that they may
see, the difficulties in the way OF any pros
ecutions or any actions which may De
brought for the recovery of the interest al
legged to have been received by the treas
urer, and in order that you, or either
branch OF the legislature, may consider
these matters in deciding whether you viii
request this office to institute suits for the
recovery of the interest or not.
II after going over this subject either
YOU or either branch Of the legislature
makes the request. this Office will do all in
its power to recover to the state any inter-
est that may have been received by Mr..
Phillips during his incumbeEey in the Of
fee OF the state treasurer and protect the
rights OF the state in the premises, and
will do everything that can be done by US
in carrying forward any such litigation as
/ x.,;an 10 AZ 10