dissenting.
I do not concur in the conclusion of the majority and give here the reasons for my dissent.
The constitution of 1875 not only repealed that part of section 32 of the insurance law which authorized the auditor to appropriate to his own use the fees therein specified, but repealed, as well, so much of the section as authorized him to receive such- fees for any purpose. These fees were, by the provisions of the constitution, required to be paid into the treasury of the state in ad*849vanee of the rendition of the service which the statute made it the auditor’s duty to perform. The money then, it must be conceded, was received without authority of law. Being so received, is the defendant guilty of embezzlement under section 124 of the Criminal Code, by reason of having converted it to his own use? Resolved into its elements the proposition is this: (1) Did this money belong to the state, and (2) does the defendant fall within the class of persons against whom the penalties of the section are denounced?
It is settled by a long line of decisions in other states that taxes or other public revenues collected by an officer acting under color of an unconstitutional law or void ordinance belong not to himself, but to the municipal or political corporation whose commission he bears. (Chandler v. State, 1 Lea [Tenn.] 296; Village of Olean v. King, 116 N. Y. 355; Swan v. State, 48 Tex. 120; Morris v. State, 47 Tex. 583; Waters v. State, 1 Gill [Md.] 302; Commonwealth v. City of Philadelphia, 27 Pa. St. 497; Middleton v. State, 120 Ind. 166; Mayor v. Harrison, 30 N. J. L. 73.) Here the defendant, acting under color of a statute originally valid, but repealed in part by implication on the adoption of the present constitution, collected fees due the state for official services rendered by him as auditor of public accounts; and now, after having rendered services to the insurance companies as the agent of the state, and after having assumed to act for the state in collecting the fees due for such services, he cannot be heard to deny that the fees so collected and received belong to, and are the property of, the state. The application of the doctrine of estoppel to the facts in this case has made the money in question the money of the state; and it must be so regarded whether its title be drawn in question in a civil or in a criminal case. The law does not require us to hold to-day in a criminal action that it is not the state’s money, and to-morrow in a civil action that it is. In the case of State v. Spaulding, 24 Kan. 1, it was held that where a city officer, pursuant to a custom *850of long standing, but without any other color of right, collected fees due to the city for services rendered by him, such fees belonged to the city, and that by their appropriation to his own use he was guilty of embezzlement.
But was the defendant one of the persons against whom section 124 of the Criminal Code is directed? Whatever may be the rule in other jurisdictions, the question is no longer an open one,in this state. It has been effectually set at rest by the decision in the case of State v. Leidtke, 12 Neb. 171. The language of the section, “any officer or other person charged with the collection, receipt, safe-keeping, transfer, or disbursement of. the public money,” etc. (Criminal Code, sec. 124), is, unquestionably, descriptive of the persons.who may be punished under its provisions, and is, therefore, descriptive of the offense. It is, of course, true that the defendant was not charged' by any valid law with the collection or receipt of the moneys here in question, but (having collected and received them under color of his office, it became his duty to safely keep them and transfer them to the treasury of the state. And this was not, as intimated in the case of San Luis Obispo County v. Farnam, 108 Cal. 562, 41 Pac. Rep. 445, a duty due from him as a private citizen, but one arising out of, and resulting from, his official station. Upon this point the Leidtke Case is direct authority; for, by ihe judgment of this court, a peremptory writ of mandamus was awarded against Leidtke to compel him to pay to the state treasurer fees collected by him as auditor under the provisions .of section 32 aforesaid. The writ could not have issued against, him as a mere private debtor of the state. It could have issued only to coerce the performance of an official duty. (Thatcher v. Adams County, 19 Neb. 485; Laflin v. State, 49 Neb. 614.)
I am not prepared to say that I should agree to the rule established by the Leidtke Case were the question now-presented for the first time. But that decision has stood unchallenged for nearly twenty years. It may be contrary to the weight of authority, but it has the support of *851sound reason; and, to say tlie least, it is not so serious an impediment in tlie way of justice as to call for a judicial repeal. Tlie principle on which it rests has the sanction of very eminent authority. It is precisely the same principle which controlled the decision in the case of State v. Spaulding, supra. In that case the conviction was not sustained because Spaulding was agent of the city to collect license moneys. In truth he was not, and could not have been, such agent, — an exclusive agency for that purpose was, by ordinance, vested in the city treasurer; but having by an assumption of authority obtained the money which he embezzled, he was estopped from denying that such assumption was false. From the opinion written by Brewer, J., now of the supreme court of the United States, I quote as follows: “We do not affirm that the city was concluded by the defendant’s acts, nor indeed that any one is estopped but himself. But we hold that when one assumes to act as agent for another, he may not, when challenged for those acts, deny his agency; that he is estopped not merely as against his assumed principal, but also against the state; that one who is agent enough to receive money is agent enough to be punished for embezzling it. An agency de fa’cto, an actual even though not a legal employment, is sufficient. The language of the statute is, £lf any officer, agent, clerk, or servant of any corporation, or any person employed in such capacity.’ * * * He [the defendant] voluntarily assumed full charge of this entire matter, including the receipt of the money and the issue of the license. The money was paid to him because of his office and to induce his official action, and he may not now say that it was not received £by virtue of his employment or office,’ or that its receipt was not one of the prescribed legal duties of such office. * * * He may not enter into the employment and then deny its terms or responsibilities. He is estopped from saying that this money which he embezzled is not the money of the city.” It is no more true as a legal proposition that Spaulding was the agent *852of the city, or, in the language of the Kansas statute, “employed in such capacity,” than it is that the defendant in this case was “charged with the collection, receipt, safe-keeping, transfer, or disbursement of the public money.” Nevertheless, he was convicted and the conviction sustained because the law did not permit him to assert the truth and rely on it as a defense. So it seems to me that the defendant Moore, having obtained the money in question for the state by the exertion of his official authority, should not be permitted to deny that he held it in his official capacity. The remarks of Mr. Bishop in his work on criminal law are pertinent here. The author says: “In reason, whenever a man claims to be a servant while getting into his possession the property to be embezzled, he should be held to be such on his trial for the embezzlement. This proposition is not made without considering what may be said against it. And a natural objection to it is that when a statute creates an offense which by its words can be committed only by a ‘servant,’ an extension of its penalties to one who is not but only claims to be such, violates the sound rule of statutory interpretation whereby the words, taken against defendants, must be construed strictly. But why should not the rule of estoppel, known throughout the entire civil department of our jurisprudence, apply equally in the criminal? If it is applied here, then it settles the question; for by it when a man has received a thing of another under the claim of agency, he cannot turn around and tell the principal, asking for the thing: ‘Sir, I was not your agent in taking it, but a deceiver and a scoundrel.’ When, thereafter, • the principal calls the man under these circumstances to account, he is estopped to deny the agency he professed, why also, if he is then indicted for not accounting, should he not be equally estopped on his trial upon the indictment?” (2 Bishop, Criminal Law [7th ed.], ch. 16, sec. 364.) The rule thus stated has been recognized and approved in State v. Spaulding, supra, State v. O’Brien, 94 Tenn. 79, and People *853v. Royce, 106 Cal. 173, 37 Pac. Rep. 630. It has also received recent recognition from this court. In the case of Bartley v. State, 53 Neb. 310, the contention of the defendant that the depository act is unconstitutional is answered in the following language: “It is urged that the court erred in assuming in the tenth, eleventh, and fifteenth paragraphs of the charge the validity of the depository law. An elaborate argument is made in the briefs against the validity of that piece of legislation on grounds other than those heretofore considered by this court. We must be excused from entering upon a discussion of the subject at this time, as the defendant is in no position now to assert that the public moneys of the state were not rightfully on deposit in the Omaha National Bank. He recognized the validity of the. statute by placing the moneys of the state in said bank, and it would indeed be a reproach upon the law to permit him to assail the depository law in a prosecution for the embezzlement of the public funds so deposited by him. It was the money of the state that went into the bank, and it was likewise the money of the state that paid the check, whether the bank was a lawful state depository or not.” Prom these citations it appears that the Leidtke Case does not stand solitary and alone. The principle on which it was decided is not a pernicious one, to say the least, and it should, in my judgment, be adhered to. The defendant, by his plea of guilty, has confessed that he received the money embezzled as auditor of public accounts, and I do not think we should either directly or by necessary implication overturn one of our own decisions in order to hold that his confession is false.