dissenting.
This is an action on behalf of the state of Nebraska to recover from the defendant, a former state treasurer, and his sureties, the sum of $280,510. The action was brought in Douglas county, and each of the defendants objected to the jurisdiction of the court of that county; that the action was not brought in the proper county. Immediately after said objections were filed the state filed an amended petition, wherein it alleges: “Of the said moneys so received and held by the said John E. Hill as such state treasurer and belonging to the state of Nebraska, he, the said Hill, during his said last term of office, and after the execution and delivery of the said bond, unlawfully, and contrary to his duty as such state treasurer, deposited in and loaned to the Capital National Bank of Lincoln, Nebraska, located and doing business in the .county of Lancaster, in the state of Nebraska, the aggregate sum of $236,361.60 and over; and in the United States National Bank of Omaha, Nebraska, located and doing business in the county of Douglas, in the state of Nebraska, the aggregate sum of $159,748 and over; and in the Merchants National Bank of Omaha, Nebraska, *710located and doing business in the county of Douglas, in the state of Nebraska, the aggregate sum of $80,510 and over, thereby converting said moneys to his own use. The said moneys were so deposited and loaned from time to time in sums less than the said aggregate sums, but the plaintiff is not informed, and has not the meaua of ascertaining, the precise-dates and amounts of the said several sums making up the. said aggregate, and cannot more particularly set forth the same.” A notice was duly served on each of the defendants of said amendment. The objections to the jurisdiction were sustained by the court and the action dismissed for .want of jurisdiction.
The sole question presented is the right to bring the action in Douglas county. Section 54 of the Code provides: “Actions for the following causes must be brought in the county where the cause, or some part thereof, arose: First —An action for the recovery of a fine, forfeiture, or penalty imposed by a statute; except that, when it is imposed for-an offense committed on á river, or other stream of water, or road which is the boundary of two or more counties, the action may be brought in any county bordering on such river, water-course, or road, and opposite to the place where the offense was committed. Second — An action against a public officer, for an act done by him in virtue or under color of his office, or for a neglect of his official duty. Third — An action on the official bond or Undertaking of a public officer.” Now, where did the cause of action arise? If the allegations of the petition are true, the defendant Hill took the money of the state and, in the face of a direct prohibition in the statute, converted the same to his own use by depositing it in two banks in Omaha. Section 124 of the Criminal Code declares: “If any officer or other person charged with the collection, receipt, safe keeping, transfer, or disbursement of the public money, or any part thereof, belonging to the state or to any county, or precinct, organized city or village, or school district in the state, shall con*711vert to his own use, or to the use of any other person or persons, body-corporate, association or party whatever, in any way whatever, or shall use by way of investment in any kind of security, stock, loan, property, land, or merchandise, or in any other manner or form whatever, or shall loan, with or without interest, to any company, corporation, association, or individual, any portion of the public money, or any other funds, property, bonds, securities, assets, or.effects of any kind, received, controlled, or held by him for safe keeping, transfer, or disbursement, or in any other way or manner, or for any other purpose; or, if any person shall advise, aid, or in any manner participate in such act, every such act shall be deemed and held in law to be an embezzlement of so much of the said moneys or other property, as aforesaid, as shall be thus converted, used, invested, loaned, or paid out as aforesaid, which is hereby declared to be a high crime, and such officer or person or persons shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement,'and also pay a fine equal to double the amount of money or other property so embezzled as aforesaid, which fine shall . operate as a judgment at law on all of the estate of the party so convicted and sentenced, and shall be enforced to collection by execution or other process, for the use only of the party or parties whose money or other funds, property, bonds, or securities, assets, or effects of any kind as aforesaid, has been so embezzled.” We were told on the argument by the attorneys for the defendants that this section was practically nullified and that no conviction had ever taken place on it. This may be true, but still it is the law of this state, as much so as that against larceny, robbery, or murder, and it is not in the power of this court to nullify it.
The above section is substantially the act of the Ohio legislature, approved April 12, 1858. (S. & C., 1610.) *712This act was passed for the express purpose of prohibiting the loaning of the public funds. The experience of other states has been that the loaning of such funds tends to foster corruption in its worst forms by placing the surplus funds of the state in the hands of a few persons to be used for their personal benefit. These persons stand in with the public official, whoever he may be, and manage to keep on hand a much larger surplus than necessary, which is used for private gain. Prior to 1835 the surplus funds of the United States were kept in banks. The effect was found to be favoritism and corruption, which had a demoralizing effect upon not only party organization, but upon free government itself. The president in that year ordered the public funds withdrawn from the depositories and kept in the treasury. From that time till now the surplus funds of the United States, except in certain special cases, as where depositories are designated for certain purposes, are kept in the hands of the treasurer. It is true that a sub-treasury act was afterwards passed for the greater security of the public funds, and that they are now principally kept in the sub-treasury or some of its branches. Now, suppose the United States treasurer should loan the funds on his personal account and receive the interest thereon. He would be clearly guilty of converting the public funds to his own use. So far as I am aware, no attempt of that kind has ever been made. The statute of Nebraska places an absolute prohibition upon the loaning of public funds or depositing the same in a bank. Stronger language could not be used. The offense is declared to be embezzlement, and the punishment is fixed at not less than one nor more than twenty-one years’ imprisonment in the penitentiary. But it is said that the treasurer is guilty of conversion by carrying the funds out of Lancaster county, and, therefore, that county is the only one where the action can be brought. The answer is, the prohibition of the statute is not against carrying the funds into another *713county, but in loaning the same to one or more banks. The overt act, the loaning, took place in Douglas county, and there alone can a prosecution be had, and no prosecution for that offense could be instituted and- maintained in Lancaster county.
In 1879 the legislature passed an act “to provide for the safe keeping of the moneys belonging to the state,” the first three sections being as follows :
“Section 1. Whenever there shall have accumulated in the hands of the state treasurer moneys of the state to an amount in excess of the sum of $100,000, the state treasurer shall, in writing, notify the governor and auditor of the state of that fact, and thereupon, within three days after the service of such notice, the governor, auditor, and treasurer shall meet and determine whether such excess is necessary to be retained in the treasury for the purpose of meeting the current demands thereon; and the record of said notification, and the proceedings of said meeting, and of its finding, shall be made and signed by each of such officers, and preserved in the office of the auditor, who shall act as the secretary of such meeting.
“Sec. 2. In case said officers shall find that said excess is not necessary to meet the current demands upon the treasury, the same shall be immediately invested in United States four per cent bonds, by the treasurer, who shall deposit the same in some safe deposit, to be designated by the governor, auditor, and treasurer, in writing, signed by them and made of record in the auditor’s office, and there kept until it shall become necessary to convert the same into money, which necessity shall be determined and the record thereof kept in like manner as hereinbefore provided, and a statement of any such investment or sale under oath shall be published within ten days after the same is made, in some newspaper published at the capital, to be designated in writing by the governor. There shall also be published in the same paper a monthly statement, under oath, of the amount *714of cash balance in the state treasury and of the amount invested as aforesaid.
“Sec. 3. Any officer charged with the duties hereinbefore mentioned who shall make or publish any false statement, or swear falsely in respect to any matter or thing, in respect to which a sworn statement is herein required, shall be deemed guilty of perjury, and shall be prosecuted and punished accordingly.” (Laws 1879, 152.)
This act was amended in 1891, the first two sections being as follows:
“Section 1. The state treasurer shall deposit, and at all times keep in deposit for safe keeping; in the state or national banks, or some of them doing business in the state, and of approved standing and responsibility, the amounts of money in his hands belonging to the several current funds in the state treasury, and any such bank may apply for the privilege of keeping on deposit such funds or some part thereof; all such deposits shall be subject to payment when demanded by the state treasurer on his check and by all banks receiving and holding such deposits as aforesaid, shall be required to pay, and shall pay, to the state for the privilege of holding any such deposit not less than three per cent per annum upon the amounts so deposited, as hereinafter provided, and subject also to such regulations as are imposed by law and the rule adopted by the state treasurer for receiving and holding such deposits.
“Sec. 2. The amount to be paid by any and all banks under the provisions of this act for the privilege of keeping public funds on deposit shall be computed on the average daily balances of the public moneys kept on deposit therewith, and shall be paid and credited to the state quarterly on the first days of January, April, July, and October of each and every year, and the treasurer shall inquire every such depositary to keep separate accounts of such several funds of the state as may be deposited, showing the name of each fund to which the same belongs and the amounts *715and sums paid to the state for the privilege of keeping the same on deposit as aforesaid, and to each of said funds respectively shall be credited directly to the account of the fund or funds so held on deposit, in .proportion to the amount of such funds so held.”
There is also' a provision for designatiijg the bank where deposits are to be made. The act did not take effect until the expiration of the term of the then .treasurers.
This act, therefore, qualifies section 124 of the Criminal Code, and provides for the safe keeping of the public money, and- is no doubt a valid law. If the' treasurer, therefore, without such directions, deposits money in a bank, the statute declares him guilty of embezzlement, and it'is a diversion of the money tó his own use. This question was before the court in First Nat. Bank of South Bend v. Gandy, 11 Neb., 431, and it was held that public money thus deposited was subject to garnishment for . the private debt of the officer.
In State v. Keim, 8 Neb., 67, a former state treasurer had deposited $2,000 in a bank at Falls City; and the bank failed, and an attempt was made .to saddle the loss on the state. ' The court, by Cobb, J., held that the treasurer and his sureties must make the loss good, as the depositing was in violation of law. It is said: “ The depositing of the $2,000 in the bank of the defendants was a loan in its legal effect. (Commercial Bank of Albany v. Hughes, 17 Wend. [N. Y.], 100; Southern Loan Co. v. Morris, 2 Barr [Pa.], 175.) The state could not have made this loan in point of fact without the intervention of some officer or agent. No officer or agent of the state could make such loan or deposit without a violation of the law above referred to, which violation would render such officer or agent both, personally and officially liable to the state for the money so loaned or deposited, while no such unauthorized act would bind the state.” The same rule was adhered to in Cedar County v. Jenal, 14 Neb., 254, *716and is a general rule. (Seward County v. Cattle, 14 Neb., 144; Commercial Bank of Albany v. Hughes, 17 Wend. [N. Y.], 94; Swartwout v. Merchants Bank, 5 Denio [N. Y.], 555; Perley v. County of Muskegon, 32 Mich., 132.)
Now, where did the cause of action arise ? In my view, where the breach of the condition occurred. We are referred to the case of Clay v. Hoysradt, 8 Kan., 58-74, as establishing a different rule. In that case Hoysradt recovered three judgments against George P. Clay before a justice of the peace of Leavenworth county, Kansas. These were receipted for in full by Hoysradt upon the payment of but little more than one-half of the face of the judgments. After giving such receipt, Hoysradt, who seems to have been a resident of Douglas county, Kansas, caused an execution to be issued upon the judgments for the residue thereof and given to a constable of Leavenworth county, who levied upon property of Clay in that county. The action was brought against Hoysradt in Douglas county, and the justice by whom the judgments were rendered and constable were joined with him, and the court held properly, I think, that the action must be brought in the county where the acts were performed.
In Fay v. Edmiston, 28 Kan., 109, this question again came before the supreme court of that state. In that case Judge Valentine says: “Where the action is against the officer and his sureties upon his official bond, we should think that the action might properly be commenced in the county where the cause of action arose, that is, in the county where the breach of the bond was committed, and tbat the court from which the writ was issued would not have the sole and exclusive jurisdiction, even if it had jurisdiction at all.” The same rule was applied in this court in the case of McNee v. Sewell, 14 Neb., 532. In that case McNee was sheriff of Thayer county and executions were issue 1 on certain judgmjnts against one Gray in the district *717court of Lancaster county and sent to McNee as sheriff of Thayer county, who neglected to execute or return the same. Afterwards, proceedings in amercement were instituted against him in Lancaster county, and the court of that county found that he was liable and amerced him in the amount of each of the said executions; and this court held that the action was properly brought in Lancaster county, and that the sureties were liable on the judgment. The leading case in regard to local and transitory actions is Mostyn v. Fabrigas, 1 Cowp. [Eng.], 161, 1 Smith, Leading Cas. [6th Am. ed.], part 2, 934, where there is a very clear statement of the law in regard to actions that are local and transitory; and a fair deduction from the cases therein referred to shows that officers may be sued in the county where the alleged wrongful act was committed, unless the statute expressly requires it to be brought elsewhere. Stephen, in his work on Pleading, says that at common law the plaintiff “ may lay the venue in the action in any county, and upon issue joined the venire issues into the county where the venue in the action is laid,” but the “defendants were enabled to protect themselves from any inconvenience which they may apprehend” by showing that the cause of action arose wholly in the county to which it was proposed to change the venue. If, however, the plaintiff would undertake at the trial to give ample evidence that a part of the cause of action arose in the county where the venue was laid the venue could not be changed. (Steph., Pi. [4th Am. ed.], 290.) At common law, “ actions against constables, headboroughs, church-wardens, and persons aiding and assisting them, are to be laid within the county where the injury complained of has been committed.” (3 Phillips, Ev. [4th Am. ed.], 727*.) At common law, therefore, the action was to be brought where the cause of action arose, and that is the case under our statute. Now, where did the cause of action arise in this case? If the allegations of the petition are true, the defendant *718Hill, in violation of law, deposited in Omaha banks a very large amount of money belonging to the state. As declared by statute and the decisions of this court he thereby converted it to his own use. This was done in Douglas county and not in Lancaster county, and it is very clear that the district court of Lancaster county could have no jurisdiction of that embezzlement. The case, therefore, is clearly within the provisions of section 54 of the Code, and the action being rightly brought upon the official bond, all causes of action upon such bond may be included in the petition, as the case falls within thé familiar rule that where jurisdiction is entertained for one purpose the court will entertain jurisdiction and render complete relief. (Story, Eq. Juris., sec. 64/c, and cases cited.)
The title of the revenue law of 1879 is, “An act to provide a system of revenue.” The third definition of the word given by Webster is “The annual produce of taxes, excise, customs, duties, rents, &c., which a nation or state collects and receives into the treasury for public use.” The money in question is that of the state levied and collected from the taxpayers, but which the treasurer has wrongfully appropriated to his own use. In other words, it is a part of the revenue of the state, placed where the-treasurer is reaping a private benefit from its use. As I understand the law, all matters which properly relate to the revenue of the state may be included in the act. If that is not so, then there is no power for any county, city, municipality, school district, or other subdivision of the-state to sue for the wrongful conversion and misappropriation of its funds, because the prohibition applies to each of them equally with the state. But no one will contend for such a construction as that.
Section 174 provides: “When-suit is instituted in behalf of the state, it may be in any court of record in this-state having jurisdiction of the amount; and process may be directed to any county in the state. If any proceeding. *719against any officer or person whose duty it is to collect, receive, settle for, or pay over any of the revenues of the state, whether the proceeding be by suit on the bond of such officer or person, or otherwise, the court in which such proceeding is pending shall have power, in a summary way, to compel such officer or person to exhibit on oath a full and fair statement of all moneys by him collected or received, or which ought to be settled for or paid over, and to disclose all such matters and things as may be necessary to a full understanding of the case, and the court may, upon hearing, give judgment for such sum or sums of money as such officer or person is liable in law to pay. And if, in a suit upon the bond of any such officer or person, he or his sureties, or any of them, shall not for any reason be liable upon the bond, the court may, nevertheless, give judgment against such officer and such of his sureties as are liable, for the amount he or they may be liable to pay, without regard to the form of the actions or pleadings.”
Section 175 provides that cities, towns, villages, or corporate authorities, or persons aggrieved, may prosecute suit against any treasurer or other officer collecting or receiving-funds, for their use, by suit upon the bond of the treasurer, in any court of competent jurisdiction, whether the bond has been put in suit at the instance of the auditor or not. Cities, towns, villages, and other corporate authorities or persons, shall have the same rights in any suits or proceedings in their behalf as is provided in case of suits by or in behalf of the state.
These are special provisions which control general provisions. Under these provisions the state is expressly authorized to sue the treasurer in any county where service can be had. Would it not be a strange anomaly that a city, village, or other municipality — in other words, a small part .of the people in their corporate capacity; — may sue in any county where service' can be obtained, but the state, *720the whole people in their corporate capacity, are restricted to one county? I do not so understand the law and cannot give my consent to so narrow a construction of the statute. If the facts stated in the amended petition are true, and for the purpose of the motion they are presumed to be so, it is very clear to my mind that the district court of Douglas county has jurisdiction, and that the judgment of the court below should be reversed and the cause remanded for trial.