Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1903-01-08
HclcOmb and sedgwick and Commissioner
Day Make the Majority
SULLIVAN AND HASTINGS DISSENT
Original Opinion Written by Commissioner
Day Before His Retirement
ONLY ONE CHANCE MORE FOR THE STATE
Case Pending Seeking Reversal of
Verdict Against Leading Bonds
men of Former Treas
urcr BARLEY.


CFrom a stan Correspondent1
LINCOLN, Jan. 7--(Special Telegram -
The Omaha National bank will not be re-
quirod to make good any part OF the short
age in the state treasury resulting from
the embezzlement by Joseph s. BARLEY OF
the proceeds Of the sinking fund warrant
for SlSolO1, converted through the bank
The only possibility OF the taxpayers being
reimbursed for any part OF the stolen
money hangs on the pending suits against
the principal bondsmen, who we're likewise
released from liability in the trial court.
The ng-deayed decision in the bank
case was filed late this afternoon. Although
In favor OF the bank and affirming the
ruling OF the lower court against the state,
1t discloses a divided bench. The chief
opinion is written by Commissioner Day
and concurred in by Judges Hocomb and
Sedgwick. strong dissenting opinion is
written by Chief Justice Sullivan and con-
CURED in by Commissioner Hastings Alto
gether there are five written opinions. the
two commissioners contributing being
members of the division before whom the
case was first submitted, the third member
of the division not having participated,
Decision is Held Up.
BY force Of peculiar circumstances, the
opinion which constitutes the decision of
the court is that of Judge who is not on
the bench, having resigned some months
ago to become Judge of the district court at
Omaha. without Judge Day, however, tho
decision would be the same. although by
and equally divided bench, because the two
supreme court judges concurrng would out.
weigh the dissenting judge and commits
sioner.
nhp s,I-
the bank, evidently had an inkling that the
decision was due, for he came down to
make sure there was no hitch in the final
proceedings. Attorney General Prout and
Deputy Attorney General Brown are natur.
ally disappointed over the outcome, because,
while having no personal feeling in the
matter, they had put in much study and
labor to uphold the right Of the Taxpayers
to hold the bank for the loss.
Court is divided,
Commissioners Day Judge sedgwick and
Judge Holcomb concur in separate opinions;
Judge Sullivan and Commissioner Hastings
dissenting.
The case had been assigned to Commits
sioner Day to write an opinion. Following
Is the syllabus of his opinion:
Where property has been taken from the
pldlntlm without his knowledge or consent
or or OF those having the lawful custody and
control over 1t, the motive which prompted
the defendant to receive and dispose of
Il is an immaterial issue; but this rule
does not apply when the plaintiff is agent
or servant having the lawful custody or
control over the property consents TO or
REQUESTS & the defendant to receive and dis
pose or II. In such case guilty intent Is
an essential element of conversion.
The opinion says:
This case was before this court upon a
torrner tSi nearing being reported in So Neb.
court based upon a verdict for the de-
PENDANTS, returned IN obedience TO the per
empt9ry direction Of the court. was re-
Yersed and remanded A retrial resulted
In a verdict and judgment for the defend
ants, TO review which the state has brought
the case on error to this court. Upon the
former hearing the present chief Justice
took no part; Justice Harrison Joined In the
reversal but expressly stated that he did
not concur in the reasons for reversal an
nounced I'm the opinion OF Justice Sullivan
1t IL for these reasons we are asked tu
again examine some of the questions pre-
Nously considered by the court.
History of the Action.
This action was brought by the state of
Nebraska In the district court OF Douglas
county against the Omaha National bank
and J. II. Millard, president. to recover
uary 2 1897. The basis OF the states claims
Is an alleged conversion by the defendants
paid to them on check given by j.
Barley state treasurer, and which II h
charged they illegally, wrongfully, fraud
Verted 20 their own use.
IL JanpaIy. 1893, the Capital National
on deposit 20 the credit of the state SlSO
l0LIO belonging to the sinking fund. For
the purpose OF reimburslng that fund out
1895 passed an appropriation act, approved
April 10, 1895. entitled AN act making APP
proPriau0n anTar t0g current expenses OF the
March 81, 1886 and March 81, 1897, and 10
pay miscellaneous items OF indebtedness
owing by the state Of Nebraska"
Among the items for which appropria-
tiOns were made WAS one as follows: "For
state sinking fund, $3.50 10, to reimburse
Capital National bank" The warrant Is
sued pursuant to this act was sold to the
October or NovemL eT 1896, the Chemical
National bank, claiming to be the owner
course of business to the defendant .,lnk
for collection.
The purpose Of the legislature in passing
the enactment above referred to was TO
transfer the states money from the general
fund to the sinking fund. The question
naturally arises as to the proper methods
To be pursued In accomplishing that OBJ
ject. Section p, article III, Of the constitu-
tion provides as fOlowsi mo money shall
pursuance OF a specific appropriation made
by law and on the presentation of a war
rant issued by the auditor thereon"
hartley Entitled to warrant.
Under the provisions OF this approprla-
tion act it was entirely proper for BARLEY
as state treasurer to receive from the
auditor Of state the said warrant, ana
when received TO present and register Il for
Iayment In the same manner of any other
warrant drawn On the general flnd. The
fact that money arising from this appro-
pria tion was 70 reimburse one Of the state's
funds would give the state no greater
rights IN the manner OF its withdrawal
Than It would have in the payment Of any
other liability. The obligations OF the state
and the salaries OF It's officers Maid nv
the issuance Of Warran. drawn UPON tup
general fund. Tn e are presented for pay
meut and registered and In due course Of
business are called in and paid. What
right has the state under existing laws TO
appropriate money TO it's use out OF the
general fund ana have Il paid ahead of
registered warrants? our law doeO not
recognize preferred claims as 20 the order
OF payments The fact, however that
BARLEY had the right TO receive the war
rant conferred upon him no authority TO
dis pose Of 1.-THE was a mere trustee In
our view he should have held II when reg
istered lntil in the regular course OF busi-
NO was called fu f1p