The Montgomery advertiser., 1902-07-08

create money in the hands of an oficial
 for which to hold him responsible. when
 that result can be worked out only by en-
 forcing a contract the making of which
 the law denounces as a crime.
 The case of the State vs. Alston, s2
 Ala. 124. is in no wise an adverse au-
 thority Alston was Probate Judge, whose
 duty it was to- collect money due for
 licenses, which were put into his hands.
 which he had no authority to issue ex-
 cept on payment of inc sum fixed by law.
 Whenever he issued license without
 taking the money, he became liable for
 the amount thereof to the State, whether
 he received any money or not. The law
 implied the promise to pay and thereby
 created a debt as for money receiv-
 ed whenever he parted with license. He
 was sued on his official bond for not pay
 ing over to the State Treasurer the money
 for a license. He set up as a defense that
 he took payment in a. check. and deposited
 1t to his official credit in a bank of good repute, which afterwards failed. The court
 in its opinion, in substance, said. that
 such use being unauthorized. was equiv-
 alent to a conversion, and that treating
 the check as money, he could not defeat
 his liability by showing that he had con-
 verted 1t by the unauthorized deposit of
 it. The question here presented was not
 raised. The court said nothing about it.
 If it had been raised, the court could have
 decided 1t against Aston on the ground that his off cial bond was liable for the
 price of the license. whether check was
 taken for it or not. and whether the
 check was paid or not It was the license
 which created the liability. The right of
 the State in no wise depended upon any contract which may have been made with
 the bank by the deposit of the check. No
 illegal contrac. was involved. He was made to pay a debt contracted by issuing a license Besides, the question here pre- sented was not raised, and was not nec- essary to a decision of the case. The Icourt plainly did not intend to assert a doctrine contrary to that proclaimed in
 in the leading case of Vandyke vs. the State, A Ala, s1, nor the principles con- sidered in the case If the State vs Wolfe, | 79 Ala. 206. or to overrule in any way the consistent line of decision from its ear Hest days, and repeated whenever occa- sion required, that no rights could grow out of contracts offensive to public policy. In Wolfes case the tax collector deposited tax money in the Merchants and Planters Bank here to the credit of Vincent, as State Treas
 urer. Vincent drew out $20,000 of this money. which he paid to that bank for New York exchange. which was payable to Vincent's order as treasurer. Vincent took draft and transferred it to Wolfe.
 who collected the money and applied il to the payment of private debt of Vim cents to Wolfe. The legal questions
 here confronting the plaintiff were pre- sented in that case and urged to prevent | a recovery. The court admitted the law to be as stated, but said that the suit against Wolfe did not come within its in- fuence. Why? The court conceded that there was no authority to place tax ! money in the bank to the credit of the | treasurer, and that he was under no ob. I ligation to collect 1t or receive it from | the bank. It said Vincent checked the
 money out. It asked what was Its
 status after Vincent obtained control of | it by checking 1t out of the bank? Had ! it not then reached its proper depository
 and destination. and was 1t not then the money of the State in the hands of the proper custodian, the State Treasdr Further on, the court said, 1t was not l the case of an alleged change of the | character if the thing claimed and con- version of 1t into money or some other chattel. Here it is claimed that a cheek was changed into money. In such a case, F"there must be a ratification of the un- authorized sale before the substituted money or articieI can De Claimed, ana | claiming the money validates the sale and vests in the purchaser title to the prop | erty converted. This requires ratifica- tion, but it can only be done by compe- | tent authority. In this case, there has
 not been any change of the character of the thing claimed. It was money at the
 beginning, and it Is still money" It will | be noticed in that case that Vincent ac- | tually received the money of the State l by taking 1t away from the illegal deposi- | tory, into his own keeping. then con verted it into a draft, and a party who | took this draft with knowledge. was 1 treated as an outsider who aided in tho | misapplication of trust funds, knowins
 them to be such. constituting himself 6 | trustee in invitum, laying himself liable
 to an action as for so much money had | and received. Here, no money has beer received It is the check which is sought | to be changed into money, and tha | change is sought to be effected by treat l ing the contract as valid, which the law | dencunces as void, and which could not
 have any effect to change the defendant
 unless the alleged valid contract coult | authorize the court to treat it as valid putting money in the hands of the treas | urer, which he never in fact received | and this by upholding that which the law | forbids.