“interest will be allowed as a penalty where money has been secured and retained by a tortious act and where it has been fraudulently taken and its conversion concealed”
How later courts described this case
- “interest will be allowed as a penalty where money has been secured and retained by a tortious act and where it has been fraudulently taken and its conversion concealed”
Written by the judges who cited it.
The opinion
Mr. Justice Carter, dissenting:
I do not concur in this decision. If the determination of the case depended upon the language of the constitution and the statute itself there could be little doubt that the conclusion reached by the court was correct; but other considerations enter into this decision. The statutory and constitutional provisions now under consideration differ somewhat from the wording of the statutes and the provisions of the constitution passed upon in Nye v. Foreman, 215 Ill. 285 , and Cook County v. Healy, 222 id. 310 , but here, as there, the public officials concerned with the enactment and enforcement of the statute have-by contemporaneous, long, uniform and practical construction accepted and acted upon the law as having a definite and particular mean-, ing; here, as there, great injury and injustice will follow a change in such construction and meaning. All the facts and circumstances indicate that the construction placed upon this statute during forty years by those charged with its enforcement has been in good faith, with the full belief that not only the letter but the spirit of the law was being observed. In some jurisdictions long continued, contemporaneous and practical construction by the legislative and executive departments has been followed, even though the courts believed the language under consideration clear and unambiguous. (8 Cyc. 737; 26 Am. & Eng. Ency. of Law,—2d ed.— 634.) This court has stated that such construction will govern only where the language of the statute is doubtful, yet an examination of the decisions in this State will disclose that in almost every instance such contemporaneous, uniform and long continued construction by public officials in the execution of the law has been followed by this court. From the time this statute was enacted, in 1865, the construction placed upon it by State Treasurers, State Auditors and other public officials has never been challenged by any citizen or any department of the State government until the institution of these proceedings.
While the lack of clearness in the statutory and constitutional provisions involved in the Nye and Healy cases was, perhaps, more marked than in this case, yet there is, in my judgment, sufficient ambiguity in the statute here under consideration to call for the application of the rule as to long continued and contemporaneous construction. The underlying principles invoked in those cases apply to this case and should control in its decision.