State v. Ross

On Motion for Rehearing.

Mr. Justice Eakin

delivered the opinion of the court.

Mr. Justice King dissenting.

16. A petition for rehearing has been filed in this case by counsel for defendant, another by Carey & Kerr, on *475 the ground that they are employed in cases involving some of the same questions, and another by Joseph Simon and twenty other leading members of the bar, solely as amicus curiae, on account of the public importance of the decision. The ground upon which the motion is based is error of this court in the application of the law to this case as disclosed in the opinion, and is principally a review of the questions discussed therein.

Counsel for defendant and Carey & Kerr insist that the act of 1907 (Laws 1907, p. 248), has no application to the educational fund, and that the Treasurer has the right to make general deposits of that fund in any bank, as held in Baker v. Williams, 42 Or. 223 ( 70 Pac. 711 ), independent of that act, while it is contended in the petition of Joseph Simon et al., that by sections 6, 7, and 8 of the late law a general deposit of that fund in the active depository is authorized. We have re-examined the questions involved with the aid of the briefs submitted with these applications, and adhere to our first views. Sections 1 to 5 make provision for deposits, clearly contemplating that the deposits shall be general, and requiring the Treasurer to deposit all State funds, except the educational fund, in the general depositories. The collections made by the active depository upon checks and drafts for the general funds cannot be left there by the Treasurer, but must be transferred to the general depositories. This obligation is as binding on him as that he shall not retain the money in his office. Instead of exempting the educational funds' from the terms of the act, section 16 provides that the term “funds,” as used in the act, shall not include the educational funds, and that nothing in the act shall be construed to deprive the State Land Board of power over this fund, thus indicating that it is to be governed by the provisions of the act, save where it is excepted therefrom, and sections 6, 7, and 8 seem to have special reference to the educa *476 tional fund. The decision in Baker v. Williams, 42 Or. 223 ( 70 Pac. 711 ) is not here questioned. No doubt the legislature had that decision in mind when it adopted the present law, seeking thereby to guard the educational fund by expressly excluding it from a general deposit. Section 6 is not uncertain as to what funds may be collected thereunder when it says that it is for the collection of any drafts, checks, and certificates that may be received by the Treasurer “on account of any claim due the State.” Sections 3 and 4 fix the minimum rate of interest to be paid by the general depository, and provide that the rate agreed upon shall not be changed for a year, and shall be computed on daily balance and paid quarterly, and that the bank shall render an account the first of every month, showing daily balances. And the condition of the security given is that all of these things shall be done, while the security required under section 7 is conditioned only for the prompt collection, the safekeeping, and the prompt payment on the Treasurer’s orders of the proceeds of such collections and for the prompt payment of its own drafts. This does not include statements, nor contemplate interest. The conclusion is un-. avoidable that this act only contemplates general deposits of funds other than the educational, and for which interest shall be paid. It was evidently the purpose of the legislature by these provisions to take the educational fund out of that custom or right of the Treasurer to make general deposits as recognized in Baker v. Williams, 42 Or. 223 ( 70 Pac. 711 ). The clause in section 8, to the effect that the compensation to be paid shall be fixed by the Treasurer, does not require him to exact a compensation as a condition for the deposit nor is such requirement made a condition upon which the bank shall be appointed an active depository. In the opinion we cited some cases holding that in case of a special deposit the money may not be mingled by the bank with its own funds, yet we did not *477 intend to decide that question, deeming it unnecessary since the conversion was proved independent of such commingling; but the fact that the bank does so mingle a special deposit cannot deprive the owner of his rights as such. Woodhouse v. Crandall, 197 Ill. 104 ( 64 N. E. 292 : 58 L. R. A. 385). It is not held in the opinion that the trust company or the defendants were officers of the State, but the act of 1907 authorizes their possession of State money for the State, and they come fully within the class of persons mentioned in Section 1807, B. & C. Comp., which includes more than State or municipal officers, viz., “any person who shall receive any money whatever for this State.” When the Treasurer deposits the money, as directed by the act of 1907, his personal liability therefor is terminated, although it is still subject to his disposal. The depository does not receive the money for him, but for the State; that is, by express direction of the law and not at the option of the Treasurer.. The Trust Company and defendants did receive this money for the State by special authorization, and are as clearly within the very words of the statute as the Treasurer would be.

17. Section 1805, B. & C. Comp., defining embezzlement relates to the fraudulent conversion by an officer, agent, or clerk of a private person or incorporation, and does not apply to one in possession of public money, and Section 1807 relates especially to public moneys that are misappropriated. This is not a case where some other officer converted the money and defendant is held responsible for that act by reason of his relation to the bank. There is nothing in the record to disclose that any other officer wrongfully converted the money. The cashier or teller who paid out the money was not offender, unless he was aware of the source from which the money came and the capacity in which it was held. The wrongful act was done by the officers and directors who made the *478 arrangement to receive the special deposit and permitted it to be mingled with its general deposit without restriction upon its use. A depository is only created upon the bank’s application in writing, accompanied by a sworn statement of the condition of the bank, which must be approved by the Treasurer. This can only be consummated through the board of directors. It is a contract between the State and the bank of which the statute is a part to the effect, among other things, that the educational fund is a special deposit, and mingling it with its general funds without restriction is the wrongful act that resulted in the conversion. Judge Redfield in a note to the case of United Society of Shakers v. Underwood, 13 Am. Law Reg. (N. S.) 211 , in which he criticises that decision, states the liability of the bank and its officers in case of a special deposit, and says:

“But, as said in Foster v. Essex Bank, supra ( 17 Mass. 479 [ 9 Am. Dec. 168 ]), it would be a breach of trust for the bank or any of its officers to open a package left on special deposit, and whoever did or counseled such act would be responsible to the owner for such tort. And, if done by an officer of the bank for its use and benefit, there can be no doubt the bank would be responsible. * * The books all show that such officers and servants are liable to the owner of such special deposits for their own wilful ácts.”

Such acts, resulting in the diversion of the money, constitute the conversion.

18. Defendant now, for the first time, questions the sufficiency of the indictment, in that it does not allege that the trust company was an active depository or that it sustained any official relation to the State. The allegation is in effect that the defendants, acting for the trust company, did then and there have in their possession $288,426.87 which belonged to the State of Oregon, and was part of the educational funds of the State, deposited for the State for safe-keeping, to be returned by defend *479 ants to the State of Oregon. The general rule is that, when the statute sets out what acts shall constitute the offense, it is generally sufficient in the indictment to charge the offense in the substantial words of the statute. This rule has its exception, which is, that the elements of the crime sufficient to inform the defendant of the charge he is called upon to answer should be set out. As defined in State v. Dougherty, 4 Or. 205 , the indictment is sufficient if it contains such specification of acts and descriptive circumstances as will upon its face fix and determine the identity of the offense, and enable the court by an inspection of the record alone to determine whether, admitting the truth of the specific acts charged, a thing has been done which is forbidden by law. The indictment we think fully complies with this requirement. There is nothing left doubtful as to the particular acts constituting the offense. It states that the money was part of the educational fund of the State placed in defendant’s possession for. the State for safe-keeping, which shows a lawful possession and comes within the words of the statute. State v. Lee, 17 Or. 488 ( 21 Pac. 455 ) ; State v. Sam, 14 Or. 347 ( 13 Pac. 303 ).

19. Defendant’s counsel contend that the charge against defendant was made by information filed March 6, 1908, and not by indictment, and that by the amendment of Section 18, Article VII, Constitution of Oregon, at the June, 1908, election, it is provided that no person shall be charged in any circuit court with the commission of any crime except upon indictment found by a grand jury; that such amendment operated to repeal Sections 1258 to 1264 which provide for trial upon information by the district attorney, and; there being no saving clause in-the amendment to the constitution, the appellate court is by the amendment divested of jurisdiction. This question was before this court in State v. Ju Nun, 53 Or. 1 , ( 98 Pac. 513 ) in which it is held that the constitutional *480 amendment is only prospective and does not apply to pending cases, and we adhere to that view. If, as contended by defendant, the provisions of Sections 11 and 12 of the act of 1907 operate to repeal Section 1807, B. & C. Comp., so far as there is a conflict as to the penalty, yet they only relate to acts of the Treasurer, and not to the depository, and Section 1807 is unaffected thereby, so far as it relates to the offense charged in this information.

20. Counsel again call our attention to the excessiveness of the fine, viz., $576,853.74, and upon further consideration we believe that the fine is excessive within thé contemplation of the constitutional provision quoted in the opinion. The fine and the imprisonment for nonpayment thereof, adjudicated by the trial court, were within the terms of the statute and in compliance with its direct command, but we are of the opinion that, the fine being so great, it is apparently beyond the power of the defendant to pay it at this time or even during a lifetime of effort, and is such a one as is inhibited by the constitution.

The judgment of the lower court will be modified by reversing that part thereof adjudging that defendant pay a fine of $576,853.74, and that he be imprisoned in the county jail of Multnomah County, Oregon, until said fine is paid, not exceeding 288,426 days. In all other respects the judgment is affirmed.

Modified on Rehearing: Affirmed.