(dissenting): The statute now under consideration, in the' form in which it was originally enacted by the -General Assembly of 1891, was purely -criminal in its nature, and made it an offense for any -officer of the State, or any county, -township, city or town, o-r deputy clerk or other person -employed by such officer, to use or loan public funds or to permit any other person or corporation to use the same. The other section of the same statute, quoted in the opinion of the majority, merely-defined the -term “public funds” as used in the first section, prohibiting public officers from using, lending or -depositing, but did not enlarge the -class of persons to which the statute was applicable. The statute applied only to officers of the State or of a -county, township, city or town, and did not include officers of a school district. Being ia criminal statute, nothing could be taken by intendment, and it .reached to only such eases as those which fell squarely within the terms of the statute. It can not be 'successfully contended that an officer would have been subject to the penalty of the statute if any other person had deposited money in his name, or if moneys to which he was entitled, ais such public officer, were deposited by -some other person. In other words, prior to the amendment made by the Legislature in 1903, the -county treasurer would not have been criminally liable for funds wrongfully deposited in the bank by the officer of the school district. I think that is the test in the present case, for if the funds were not deposited in such manner as would have made the treasurer criminally liable prior to the amendment, the stockholders of the bank are not civilly liable under the statute as amended. The amendment of 1903 merely relaxed the penalty -of the statute so as to permit ‘ ‘collectors of taxes, county treasurers and treasurers of cities and towns,” to deposit public funds for safe keeping, on condition that the sureties on their official bonds, and banks in which such deposits are made, and the stockholders, shall be liable for such funds. There is in this amendment' no enlargement of the elas-s of persons to which the statute is applicable, but a mere relaxation of the terms of the statute so as to permit some of the -officers named to deposit public funds under the specified conditions.
It se-ems to me that the court is stretching the language of the statute beyond its real meaning, according to ordinary rules of interpretation, in saying that the stockholders are liable in this case for funds deposited by the school -district. The fact that the funds thems-elves fall within the class designated by the ¡statute as “public funds” does not necessarily make the ¡stockholders of the bank responsible, for the reason that the statute -only creates a liability for funds deposited by the officers specified therein. It will be obs-erved that the same elaus-e which makes the bank and its stockholders liable also declares that the sureties on the official bond shall be liable. Now, can it be contended for a moment that the sureties on the official bond of a treasurer are liable for funds which never came into the hands of that -officer, hut were -deposited in the hank by tbe -officers -of a school district? Y-et the same provision -of the statute- which makes the stockholders of the hank liable also -makes the sureties on the -official bond liable, -and tb-ere is no ground for -separating tbe liability. The interpretation which the -court now places -on this statute leaves stockholders -of the bank without any means of protecting themselves against this liability. They may have instructed the '-cashier not to -receive -any deposits from -collectors -or -treasurers, -thinking that they were thereby escaping liability, -an-d yet without their -consent the -ca-shier imposed a liability up-on them by 'accepting funds on -deposit from a -school -district.
It is my opinion, therefore, -that the court erred in holding that the stockholders wer-e individually responsible for this fund.