I do not concur in the principal opinion. This case was argued and submitted in Division I of this court at the January Call, 1941. The case was assigned to BRADLEY, C., for an opinion. In due course he submitted copies of his opinion, reversing the judgment and remanding the cause with directions to enter judgment for the plaintiff. HYDE and DALTON, associate commissioners, concurred in said opinion. Thereafter and in due course he submitted copies of the opinion to the judges of Division I. The opinion was rejected on CLARK and DOUGLAS, JJ., refusing to concur. Thereupon the case was assigned to CLARK, J., for an opinion. In due course he submitted to his associate judges of that division his opinion, which was rejected by HAYS and GANTT, JJ., refusing to concur. Thereupon and on the court's own motion, the case was transferred to the Court En Banc, wherein it was argued, submitted and again assigned to CLARK, J., for an opinion. In due course CLARK, J., submitted his opinion En Banc, which is now the principal opinion in this case. He adopted Commissioner BRADLEY'S statement of the facts.
Without undertaking to review the opinion of BRADLEY, C., I adopt it for my dissenting opinion as I deem that, in the main, it is predicated upon sound decisions of this court applicable to the issues in this case, which is impressed with a public interest. However, it is needless to restate the facts of the case for they are correctly stated in the principal opinion. The opinion of BRADLEY, C., on the facts follows:
[10] "The superintendent of insurance, as trustee for the policyholders, was the legal custodian of the restitution money, Sec. 5985, R.S. 1939; State ex rel. Abeille Fire Ins. Co. v. Sevier, 335 Mo. 269, 73 *Page 566 566 S.W.2d 361, l.c. 368; State ex rel. Garwood Realty Co. v. Dinwiddie, 343 Mo. 592, 122 S.W.2d 912; State ex rel. Lucas v. Blair (Mo. Sup.), 144 S.W.2d 106, l.c. 109, and the circuit court had no authority, that is, had no jurisdiction whatever to attempt distribution, hence the circuit court's order directing the deposit of these funds in defendant trust company and the paying out thereof was wholly void. [Aetna Ins. Co. et al. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3, l.c. 9.] In [585] the case last cited, the court said: `When the companies failed to perform their statutory duty, the circuit court had jurisdiction to compel them to do so by adjudging that they pay the excess premiums still in their possession to the superintendent of insurance, or into court for him, but it did not have authority to seize the fund and attempt to administer it through custodians of its own choosing in violation of the statute which provides, in plain terms, that the superintendent of insurance shall administer it.'
[11] "Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3, involved the validity of allowances, from the restitution funds, to the custodians, and to their attorney, and it was held that the circuit court was without authority to make such allowances from these funds. And in Aetna Ins. Co. v. O'Malley,343 Mo. 1232, 124 S.W.2d 1164, the same ruling was made as to an attorney employed by the superintendent of insurance with the approval of the Governor. [See also Lucas v. Lamb (Mo. Sup.),156 S.W.2d 634.] It has been consistently held by this court, whenever the question was for decision, that no part of the restitution money could be lawfully paid to any one except to the policyholders who owned it. In the Lamb case it is said:
"`The record shows that respondent (Lamb) rendered diligent and valuable services, and incurred expense; that his efforts contributed to the collection of a much larger sum for the benefit of the policyholders, or of the state, than might otherwise have been recovered. However, for the reasons stated, we are unable to permit him to retain compensation out of the fund collected.'
"Defendant's president testified that these custodians came to him when the deposit account was started and stated that they desired to make deposit, and delivered to him copies of the two orders of the circuit court made on December 14, 1934; that `it was thought by us at that time that the money would be returned from the fund to the policyholders', but that `whatever the cost of administration was, it was presumed that the fund would take care of that.' The second of these orders appears, supra. The first contained a kind of resume of what had occurred theretofore in the 10% reduction order (October 9, 1922). Defendant could not have been ignorant as to the source of the funds deposited, and there is no such claim.
"In the interlocutory judgment (May 26, 1933) for restitution the circuit court appointed four referees, two of whom were the custodians in the present case. Also, in that judgment, the court directed that the *Page 567 insurance companies deposit $70,000 to pay referees' fees `and cost and expenses of hearings held by them.' [State ex rel. Abeille Fire Ins. Co. et al. v. Sevier, supra (73 S.W.2d l.c. 369).] And the Abeille case, in addition to holding that the circuit court had jurisdiction to make the restitution order, as stated, supra, held that such court had the power to appointthree referees, and not four. Also, it was held that there was no authority to support the order to deposit the $70,000 to pay the referees and other costs. The court in that case said (73 S.W.2d l.c. 369):
"`It is contended that the court was without power to make the order appointing four referees and requiring relators to make a deposit of $70,000 to pay their fees and the cost and expenses of hearings held by them. The statutes provide that the court may direct a reference in certain specified cases, and may appoint one or more referees, not exceeding three. The case in question falls within the class of cases specified in the statute in which the court would be authorized to direct a reference and appoint the required number of referees, not exceeding three. [Section 975, 976, and 977, R.S. 1929 (Mo. Stat. Ann., secs. 975-977, pp. 1248, 1249, 1252).] There is, however, no authority for appointing four referees and requiring a deposit to pay their fees and the expenses of hearing held by them, in the face of a statute which limits the number which may be appointed to three.'
[12] "In the brief, defendant quotes, in part, from the Abeille case, as set out, supra, and then says: `We submit that the first order entered by the circuit court on December 14, 1934, didnothing more (italics ours) than order an accounting and appoint two referees, with the duty to make the accounting.' It is true that the first order of December 14, 1934, gave to the custodians powers of a statutory referee as to hearings, etc. Of the power of these custodians, the court, in Aetna Ins. Co. et al. v. O'Malley, supra, said (118 S.W.2d l.c. 10):
"`The next question is whether or not Messrs. Cook and Lauf are entitled to compensation as referees. We held in State ex rel. Abeille Fire Ins. Co. [586] v. Sevier, 335 Mo. 269,73 S.W.2d 361, that the restitution proceeding was the character of case which authorized the court to direct a reference. The order of the court appointing Messrs. Cook and Lauf, by whatever name they were called, constituted them referees with authority to hold hearings for the purpose of determining the amount due from the companies, and to report their findings to the court. Suchwas the extent of their authority. The orders of the court whichattempted to clothe them with authority to administer the fund after it was paid into court were void. . . . They were entitled to compensation for services performed as referees, taxable as costs of litigation.' And in the same case it was further stated (118 S.W.2d l.c. 10): `For all the reasons stated, the order of the trial court appointing Messrs. Cook and Lauf as custodians *Page 568 to distribute said fund to the policyholders, being in violation of Section 5874 (now Sec. 5985, R.S. 1939) was in excess of the court's jurisdiction and void.' (Italics ours.)
[13] "The two orders of December 14, 1934, did not stop at giving the named custodians the powers of an ordinary statutory referee, but in effect, and contrary to defendant's contention, went on (both orders considered together) to authorize the custodians, not only to ascertain the amount to be refunded by each company, but to collect this amount, deposit it with defendant, and under the directions of the court, disburse it to the policyholders, less costs of administration. Defendant, however, says that the direction to disburse was not in the orders of December 14, 1934, but was subsequent and of which defendant had no knowledge.
"The second order of December 14, 1934, set out, supra, recited at its outset that the court had before it the matter of the collection, care, and disbursement `of the fund arising from the order of restitution', and then the order went on to recite, that defendant had been designated as the depository for these funds, and then directed that the depository carry the deposit account on its books under a specified style, and then prescribed exactly how all checks drawn on the fund were to be signed, and directed the custodians to `keep proper books, showing the amounts received by them, and from whom, and the dates of such receipts, and also showing all amounts paid out, when paid, to whom paid, and for what purpose, which books shall be open at all times to the inspection of the court and its designated agents or officers and to the counsel in the case.'
"Speaking of the opinion in the Abeille case, defendant in the brief, says:
"`It is apparent that Judge FRANK (author of the opinion) used the term `administer the fund' and the term `distribute the fund to the policyholders' as synonymous terms, and we submit that the orders attempting to authorize Cook and Lauf to administer the funds or to distribute the funds to the policyholders were made after the two orders of December 14, 1934, under which two orders the checks were delivered to the trust company for collection and deposit, and under which orders the trust company accepted the deposits. The many other orders made attempting to clothe Cook and Lauf with power to administer or distribute the funds were not only made after the trust company had become the depository, but none of them came to the knowledge of the trust company. That none of such orders came to the attention of the trust company was testified to by Mr. Howard Cook, its president.'
"As we understand, defendant means by subsequent orders, the specific court order that was made for each check drawn upon the restitution money. Defendant's president testified: `Q. Now, from that time on, that is, the 29th day of December, 1934, when this account *Page 569 was opened in the bank, in the trust company, did you ever receive any other court order of any kind showing any change in the status of the account or in the orders of the court? I am not talking about written orders like a check; I am talking about any order of the court, any court order. A. I don't believe any order was received beyond the certified copies of the two orders referred to. Q. That is what I mean. A. Nothing bearing on the form of the withdrawals from the sum deposited, no, sir. Q. Well, what I am getting at — they talk here about final decrees and interlocutory decrees and all that sort of thing. Were any of those decrees served on you? A. None of them. We had no knowledge whatsoever of any of that record.'
"But whether defendant had or did not have knowledge of subsequent orders as to each separate check, it certainly had knowledge [587] of the matters and things recited in the two orders of December 14, 1934, and from these defendant was bound to know that the circuit court, through its custodians, was going to disburse the restitution funds, and from its own records defendant was bound to know that beginning January 24, 1935, the circuit court and its custodians commenced the disbursement of the restitution money, and defendant is bound to know from its own records that the circuit court and its custodians were not only disbursing to policyholders, but were paying administration expenses from the restitution money.
"Sec. 5874, R.S. 1929, 6 Ann. Stat., sec. 5874, p. 4482, now Sec. 5985, R.S. 1939, among other things, provides that `during the pendency of such action or review, the orders and directions of the superintendent of insurance, as to reduction of rates, shall be suspended, but all such insurance companies shall, during the pendency of such action or review, deposit with the superintendent of insurance on all policies issued or renewed after the date of such order or direction, and until the final determination of such action, an amount equal to the difference between the rates fixed by the superintendent in his order and those in effect prior thereto, such funds to be held by the superintendent of insurance to await the result of such review, and in the event the orders and directions of the superintendent be set aside, such funds shall be returned to the companies pro rata, and in the event his orders and directions shall be sustained, then such funds shall be turned over to the policyholders pro rata. The superintendent shall deposit allsuch funds (italics ours) so held by him in responsible banks and shall require good and sufficient bond for safe-keeping and proper accounting.' This section was in full force and effect when all the deposits here concerned were made, and no one, reading this section, could be mistaken as to who was the lawful custodian of the restitution money.
[14] "All men are presumed to know the law except when overreached by one possessed of a superior knowledge of the law, or when *Page 570 there is a relation of trust or confidence. [Security Savings Bank v. Kellems, 321 Mo. 1, 9 S.W.2d 967.] Such rule is one of necessity, and is as old as the law itself, and has recognition in the jurisprudence of all civilized countries. Orderly government could not exist if every one at will could interpose his ignorance of the law as a defense when the enforcement of his obligations is sought in the courts. In the present case there is no claim on the part of the defendant that it was overreached in accepting the deposit of the restitution money, or that there was any relation of trust or confidence between it and those who placed the money on deposit. Such being the situation defendant must be held to have known when the deposits were made that neither the circuit court nor the custodians had any lawful right to disburse the restitution money. Therefore it must be held, unless all precedent is disregarded, that defendant became a trustee ex maleficio of the restitution money placed with it. There are numerous cases in this State supporting the law as stated. These are a few of such cases: Ralls County v. Commissioner of Finance, 334 Mo. 167, 66 S.W.2d 115; In re Cameron Trust Co., 330 Mo. 1070, 51 S.W.2d 1025; William R. Compton Co. et al. v. Farmers Trust Co. et al. (Mo. App.),279 S.W. 746, l.c. 748 (4); State ex rel. Gentry v. Page Bank of St. Louis County et al., 322 Mo. 29, 14 S.W.2d 597.
"The recent case of Hartford Accident Indemnity Co. v. Farmers National Bank et al. (Tenn.), 149 S.W.2d 473, is similar in principle to the present facts. In that case it appears that one Taylor was clerk and master of the chancery court of Franklin County, Tennessee. He died April 14, 1932, and was found to be short in his account of back tax collections. It was found by the chancery court that Taylor had appropriated to his own use $7,843.14 of the back tax money. His surety, the Hartford Accident Indemnity Company, paid the shortage, and as the subrogee of the state and county, sued and recovered from the bank in which Taylor had deposited the money. In that case it is said (149 S.W.2d l.c. 476):
"`The bank's officers knew that the monies in the account `Dick Taylor, Back Tax' were collections of back taxes. They knew Taylor had no source of income except his office as clerk and master; and they knew he was drawing checks promiscuously on this account for his own individual purposes.'
"In the present case, defendant actually knew the source of the money deposited; and presumptively knew that those who deposited it had no lawful right to disburse it, and actually knew that large portions of it were being checked out to persons other than policyholders to whom it belonged. In State ex rel. Gentry v. Page Bank, supra, it is said (14 [588] S.W.2d l.c. 599).
"`There is no question that the bank knew the source of the money deposited with it, and whether or not it perceived and comprehended the constraint of Section 28, Laws 1921, First Extra Session, p. 104 *Page 571 with respect to the fees made payable to and the prompt transmission thereof to the state treasurer, it was constructively imbued and charged with such knowledge. The secretary of state was a mere collector of the fees, nothing more. The authority given him did not extend to a deposit, and it was his duty to promptly transmit the fees to the state treasurer, to whom they were made payable and under whose control and custody the statute placed them.'
[15] "When the first alleged deposit in the present case was made (Dec. 29, 1934), not only was there the statute (Sec. 5985, R.S. 1939) which provided exclusive right to the custody of the excess premium money in the superintendent of insurance and made it his exclusive duty to distribute such money to the policyholders, in case the reduction order was sustained, but there was then the decision of this court (May 31, 1934) en banc in State ex rel. Abeille Fire Ins. Co. et al. v. Sevier, supra,335 Mo. 269, 73 S.W.2d 361, which said in regard to the very proceeding in which the void order here involved was thereafter made, that the excess premium money was the policyholders' money; that (73 S.W.2d l.c. 368) `the superintendent of insurance is a public official and represents the policyholders;' that it was his duty `to get the policyholders their rights under the law;' and that `neither he nor the attorneys representing him had authority to stipulate away any lawful right of the policyholders.' The court also pointed out in the Abeille case (73 S.W.2d l.c. 369) that the insurance companies `gave a bond payable to the superintendent of insurance for the use and benefit of the policyholders, guaranteeing to him that they would make such refund.' And further said, `the superintendent of insurance as the representative of the policyholders, may enforce the reduction order by motion for restitution.'
"The attempt to make the custodians the representatives of the policyholders to collect and distribute this money was clearly in the face of that opinion as well as in violation of the statute, and as stated, both the statute and the opinion existed when the alleged deposits here concerned were made. Furthermore, this court en banc had previously (June 11, 1932) pointed out in State ex rel. Missouri State Life Ins. Co. v. Hall et al.,330 Mo. 1107, 52 S.W.2d 174, that our insurance code is exclusive and prevents any court from appointing a receiver of any kind to take over any of the functions vested in the superintendent of insurance by the Legislature in the exercise of its police power to regulate the insurance business and protect the interests of the public therein. This court, in that case, made it clear that the very purpose of the Legislature in providing for a public officer to exercise these designated duties in connection with insurance companies was to prevent (52 S.W.2d l.c. 178) `dissipation of large sums of the company's money for expenses, fees, and allowances' so as to merely leave `the superintendent as statutory undertaker . . . to distribute the remains.' Statutes for this purpose *Page 572 were not the result of sudden action, but have a long and well known history behind them. In the situation presented here, it was not possible for the relation of debtor and creditor to be created and the only relation possible, under the facts, between defendant trust company and the superintendent of insurance, the statutory representative of the policyholders, was that of trustee ex maleficio of a public trust fund.
[16] "Defendant invokes Sec. 5458, R.S. 1929, 11 Ann. Stat., sec. 5458, p. 7655, now Sec. 8062, R.S. 1939. This section follows: `Adverse claim to deposit on books — effectual, when. Notice to any trust company doing business in this state of anadverse claim (italics ours) to a deposit standing on its books to the credit of any person shall not be effectual to cause said trust company to recognize said adverse claimant unless said adverse claimant shall also either procure a restraining order, injunction or appropriate process against said trust company from a court of competent jurisdiction in a cause therein instituted by him wherein the person to whose credit the deposit stands is made a party and served with summons, or shall execute to said trust company, in form and with sureties acceptable to it, a bond indemnifying said trust company, from any and all liability, loss, damage, costs and expenses for and on account of the payment of such adverse claims or the dishonor of the check or other order of the person to whose credit the deposit stands on the books of said trust company, provided, that this law shall not apply in any instance where the person to whose credit the deposit stands is a fiduciary [589] for such adverse claimant, and the facts constituting such relationship, as also the fact showing reasonable cause of belief on the part of the said claimant that the said fiduciary is about to misappropriate said deposit, was made to appear by the affidavit of such claimant.'
"This section was enacted in 1927, Laws 1927, p. 246, but it has not been up for construction. Defendant says that this section `was intended to protect the bank against the very sort of claim that is being pressed here. It was intended to prevent the bank being held liable where a party other than the depositor, with full knowledge of all of the facts, has stood by while the trust company paid out money on the depositor's check, the third person (superintendent of insurance) having made no claim to the funds in accordance with the statute. Unless the whole purpose of this statute is to be nullified by construction, we submit that, in the absence of any affidavit or notice of any kind, the trust company is not liable for funds paid out on checks drawn by its depositor in compliance with the contract of deposit.'
"We cannot agree to such construction. If such was the purpose of what is now Sec. 8062, then it would be possible for any public trust fund to be entirely dissipated, and its rightful owners deprived *Page 573 thereof merely because some public officer did not do his duty. This section could not have been intended to apply to public funds, and the decisions of this court en banc throughout the insurance rate fund litigation have applied the rule of public funds, viz., that no neglect or default of any public officer can affect the right of the State, so to speak, to recover such funds. We think that the term deposit as used in Section 8062, when applied to the present facts, means what is ordinarily implied by the use of such term, that is, a lawful and proper deposit so far as concerns the depositor and the bank, and one where the relation of debtor and creditor is created. [See Butcher et al. v. Butler et al., 134 Mo. App. 61, 114 S.W. 564; In re Olson's Estate, 206 Iowa 706, 219 N.W. 401; City of Canby v. Bank of Canby, 192 Minn. 571, 257 N.W. 520; State Banking Board et al. v. James et al. (Tex.), 264 S.W. 145.] Also, there was in fact, no adverse claimant as to ownership of the restitution money. Defendant, the custodians, and the circuit court all recognized that the money actually belonged to the policyholders.
"See also State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887, l.c. 892, where it is said: `What we have said disposes of defendant's point that he need not take notice of any limitation on the powers of the state auditor in auditing the account. He had actual knowledge of the facts involved and he received payment under statutory provisions which every person was bound to know and construe at his peril.'
"In the present case, it was the duty of those who collected the restitution money to turn it over to the superintendent of insurance, and this the defendant bank must be held to have known. There can be no escape from the conclusion that defendant is liable for the money sued for, and we so rule.
[17] "Is plaintiff entitled to recover interest, and if so, should interest run only from date of demand, October 17, 1938? We think plaintiff is entitled to recover interest. [See Sec. 3226, R.S. 1939, 7 Ann. Stat., sec. 2839, p. 4623; Napoleon Hill Cotton Co. v. Stix, Baer Fuller Dry Goods Co., 203 Mo. App. 25,217 S.W. 323; Jefferson City Savings Assn. v. Morrison,48 Mo. 273; Great Northern Ry. Co. v. Erie Ry. Co., 58 F.2d 414.] As stated, supra, this is an action for money had and received. Sherman v. International Life Ins. Co., 291 Mo. 139,236 S.W. 634, was an action for money had and received, and it was held in that case (236 S.W. l.c. 642) that in order to recover interest it was necessary to allege and prove demand. Such was done in the present case. Sec. 3226, R.S. 1939, referred to, supra, provides as follows:
"`Creditors shall be allowed to receive interest at the rate of six per cent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand ofpayment is made; for money recovered for the use of another, and retained without the *Page 574 owner's knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.' (Italics ours.)
"It was held in the Sherman case, supra, that the part of Sec. 3226 which we have italicized was applicable as to interest in that case, and we perceive of no reason why such part of said section should not control here, hence we hold that plaintiff is entitled to interest only from date of demand, and we might say that there are suits in judgment [590] and pending which involve parts of the same money sued for in this cause. Lucas v. Lamb, supra, is one of these suits. Plaintiff, of course, will be entitled to only one satisfaction of the judgment presently to be directed.
"The judgment should be reversed and the cause remanded with directions to enter judgment for plaintiff for the sum of $289,789.95, plus simple interest at 6% from October 17, 1938, date of demand. It is so ordered."