dissenting.
The warrant in question was twice bandied by Mr. Millard. As agent of Bartley be sold it to tbe Chemical National Bank, and as agent of tbe Chemical National Bank be afterwards delivered it to Bartley in exchange for |201,884.05 of tbe state’s money. Tbe jury found that tbe words, “For to reimburse tbe state sinking fund,” plainly written upon tbe face of tbe warrant, did not attract Mr. Millard’s attention when he received it from Bartley and sent it to New York, nor when be received it from tbe New York bank and delivered it to Bartley, nor even when it lay before him on bis desk while tbe interest upon it was being computed. Tbe jury also found that the possession by Bartley of a warrant supposed to evidence a debt due to him from tbe state amounting to $180,101.75, did not at any time excite Mr. Millard’s special wonder or cause him to inquire by what strange chance a solvent-commonwealth could have become so heavily indebted to its own treasurer. These findings are approved by the decision, and defendants are acquitted on tbe theory that tbe payment was made under apparent authority and that they, in receiving tbe money, acted in good faith and hence committed no actionable wrong. Tbe weakness of this position is clearly pointed out by Commissioner Hastings, but it may be well enough to emphasize what be has said. The powers and duties of public officers are definitely fixed by law, and since every one is conclusively presumed to know tbe law, it is perfectly clear that in tbe transaction we are considering the real authority and tbe apparent authority of tbe state treasurer were exactly tbe same. Evidently tbe doctrine of apparent authority, which is a1 branch of the law of estoppel, has nothing whatever to do with this case; it is wholly and obviously irrelevant. But if an estoppel may, under any circumstances, be alleged against the state, which in view of Philadelphia Mortgage *903& Trust Co. v. City of Omaha, 63 Nebr., 280, must be regarded as at least doubtful, what is there iu the present record to justify the court in refusing to take notice of the statutory limits of the treasurer’s power? Surely defendants can not, Avith any show of reason, insist that the unauthorized payment of the warrant, the Avrongful act Avhich they themselves abetted and participated in, operated as a practical enlargement of the treasurer’s authority. As Avell might a parricide ground an appeal for compassion or clemency on the fact that he Avas an orphan. Bartley’s real authority was to disburse the public funds upon valid warrants and not othenAdse. Compiled Statutes, 1901, ch. 83, art. 4, sec. 2.* He had no semblance of authority to pay an invalid warrant; and yet this is precisely what he did. He not only paid out the state’s money upon a warrant which proclaimed its OAvn illegitimacy, but he paid it out directly to the defendants, the holders of the warrant. How they could be legally innocent in receiving money which they knew belonged to the state, and which Avas turned over to them without the actual or apparent consent of the state, is something ' hich I have never been quite able to understand. It is true that the defendant bank as a state depositary was under a general obligation to honor the treasurer’s checks, but it was certainly under no such obligation when the treasurer’s check transferred to itself money for the payment of a claim which it held for collection and Avhich the treasurer had neither actual nor apparent authority to pay. To get a clearer view of the transaction let us separate the capacities in which the Omaha bank was acting. As agent for the Chemical National Bank it had in its hands for collection a spurious claim against the state. As a state depositary it had in its vault a large amount of the state’s money. As agent of the New York bank it obtained from the state treasurer a check evidencing the treasurer’s permission to take $201,884.05 of the public funds for a specific purpose. It availed itself of this permission. It had access to the state’s money, and, *904as a private collecting agent, laid bold of a sufficient sum to pay the worthless warrant. If the same warrant had been presented at the treasurer’s office in this city, and if it had been there paid, it would, we presume, be readily conceded that the payment was one which the treasurer had neither real nor apparent authority to make, and that the receiving and removing of the money by defendants would be a conversion of it. But what conceivable difference can it make whether an unlawful payment is made in Lincoln or in Omaha, if in either case the money paid belongs to the state? And what possible difference can it make whether the money is actually paid out by the hand of the treasurer or is seized and taken by a person who has the treasurer’s permission to seize and take it? In the case at bar defendants, with the treasurer’s permission in the form of a check, went into the vault of a state depositary and there helped themselves to the state’s money. The transaction was essentially the same as though Mr. Millard had presented the warrant at the treasurer’s office and had, with Bartley’s consent, gone into the vault and helped himself to $201,884.05 of the state’s money.
Syllogistically stated, the whole matter is this: The statute in effect declares that money can be lawfully obtained from the state treasury upon valid warrants and not otherwise. The defendants obtained the money in question from the state treasury upon a warrant that was not valid. Therefore, they obtained it unlawfully. The law does not discriminate between wrong-doers. It makes no exception in favor of persons who act for others and not for themselves. An agent, even though he act in good faith, must, before he can rightfully lay his hands upon the public funds, produce a valid warrant; the possession of something that looks like a warrant is not sufficient.
A more complete and elaborate statement of the grounds of my dissent will be found in the following opinion of Commissioner Hastings, which is, in my judgment, a demonstrative answer to all that has been said in support of the conclusion reached by the majority.
CoUbey’s Annotated Statutes, sec. 9134.