In re Huston

BUDGE, J.-

— The petitioner, Fred L. Huston, auditor of

the state of Idaho, was indicted by the grand jury of Ada county, on January 13, 1915, which indictment, eliminating the title, reads as follows:

“James IT. Wallis and F. L. Huston are accused by the Grand Jury of the County of Ada, in the State of Idaho, by this indictment of the crime of without authority of law appropriating public moneys committed as follows, to wit: That on or about the twentieth day of August, 1914, and before the finding of this indictment at Boise, in the County of Ada, State of Idaho, the said James H. Wallis then and there being the duly appointed, qualified and acting Dairy, Food and Sanitary Inspector of the State of Idaho, and the said F. L. Huston, being then and there the duly elected, qualified and acting Auditor of the State of Idaho, and as such Auditor charged with the lawful disbursement of public moneys, did, wilfully, unlawfully, and feloniously and not in the due and lawful execution of their trust as such public officers appropriate funds and public moneys belonging to the State of Idaho, without authority of law to the use of Robert Wallis in the sum of Ninety ($90.00) Dollars, lawful money of the United States of America, by then and there paying to the said Robert Wallis, as salary, the said sum of Ninety ($90.00) Dollars, lawful money of the United States of America, out of the traveling expense fund of the said State Dairy, Food and Sanitary Department appropriation of the State of Idaho for services rendered in the Bacteriological Department of the Health Department of the State of Idaho. ’ ’

James H. Wallis is not a party to the petition herein for a writ' of habeas corpus and is in no way connected with this proceeding.

This indictment was returned under sec. 6975, Rev. Codes. We will quote such portions of said section only as are conceded by counsel for respective parties to form a basis for this indictment, to wit:

“Each officer of this state, or any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:

“1. Without authority of law, appropriates the same or any portion thereof to his own use, or to the use of another ;

“Is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from holding any office in this state.”

The facts in this ease are not disputed and briefly stated are as follows:

Robert Wallis rendered services in the bacteriological laboratory for the months of June, July and August, 1914, at a fixed compensation of $90, for which amount he presented a claim to the head of the department, which claim was subsequently filed with F. L. Huston, state auditor, as secretary of the state board of examiners. This claim was regularly listed and filed by said secretary with the state board of examiners as provided by law, and subsequently was by the board of examiners audited and duly allowed. "Whereupon the state auditor was directed by the state board of examiners to draw a state warrant in favor of the claimant for the full amount of his claim. The bacteriological laboratory is under the supervision of the state board of health. The state dairy, food and sanitary department is likewise a department of the state board of health. The indictment charges, in effect, that the petitioner paid the said Robert Wallis the sum of $90, out of the traveling expense fund of the state dairy, food and sanitary department appropriation for services rendered in the bacteriological department of the health department of the state of Idaho. The gist of the offense charged appears to be that the money was paid out of the traveling expense fund of. the state dairy, food and sanitary department appropriation instead of being paid out of the appropriation for the bacteriological department of the health department of the state of Idaho. It will be remembered that both these departments are under the general supervision and are.integral parts of the state board of health. It is admitted that the services were rendered; that the amount charged for the services so rendered is not excessive; that the obligation was a valid claim against the state; that the petitioner in no way benefited, directly or indirectly, by reason of the employment of said claimant or. the payment of said claim; that the state lost no money, but that an honest valid obligation, lawfully incurred, was paid by the issuance of the warrant in question. The only contention on the part of the prosecuting attorney of Ada county is that these services were paid for from the wrong fund, or item of an appropriation made by the legislature for the maintenance of an integral part of a general department, and that this fact alone makes the state auditor guilty of a felony under sec. 6975, Rev. Codes, supra; to wit: “Without authority of law” appropriating public moneys to his own use or that of another.

Sec. 6975, Rev. Codes, supra, is a criminal statute, enacted for the purpose of protecting the public revenue. It relates to state, county, city, town or district officers, and to every person charged with the safekeeping, transfer, or disbursement of public moneys. It makes certain specified acts crimes, punishable on conviction, in the state prison for not less than one nor more than ten years. This section is divided into ten subdivisions, each of which relates to a separate and distinct class or provision. Some acts mentioned are clearly mala proJiibita, and on a trial involving such acts, it is not necessary, in order to establish guilt, to show intent on the part of the person charged. Such, for instance, is the offense prescribed in subdivision 4 of said section, to wit: Depositing public money “or any portion thereof in any bank, or with any banker or other person, otherwise than on special deposit, or as otherwise authorized by law. ’ ’ This subdivision of said section was construed by this court in the case of the State v. Browne, 4 Ida. 723, 44 Pac. 552, and is relied upon in order to secure a conviction of the defendant in the case at bar. There is, however, a clear distinction between that case and the ease at bar. The facts are entirely different. The principles of law applied in that case cannot consistently be made applicable to the case at bar. In the case above cited, the indictment charged Gilstrap, county treasurer of Latah county, and Browne and Hattabaugh, eodefendants, with having feloniously entered into a written contract by the terms of which Gilstrap agreed to deposit in the Moscow National Bank, of which Browne was president, and in the Commercial Bank at Moscow, of which Hattabaugh was president, any and all sums of money belonging to said Latah county, state of Idaho, coming into the possession of or under the control of Gilstrap as treasurer of said Latah county. That in pursuance of said contract, the said Gilstrap, as such treasurer as aforesaid, deposited with said banks large sums of money of said Latah county which had come into Ms hands as such treasurer as aforesaid, in violation of sec. 6975, supra. Gil-strap was charged with the receipt, safekeeping, transfer, or disbursement of the public moneys of Latah county as treasurer of said county. He had the actual custody and control of the money and the corporeal possession thereof. He was aided and abetted in the wrongful and unlawful act of depositing the public moneys in the banks of his codefendants, contrary to law, by acting in collusion with Browne and Hattabaugh, who became principals in the violation of the provisions of said section 6975, supra, and were equally amenable under the law with the county treasurer, Gilstrap.

Is the petitioner, as state auditor, charged with the receipt, safekeeping, transfer or disbursement of public moneys, within the meaning of sec. 6975, Rev. Codes, supra?

The word “receipt” is defined by lexicographers as “an acknowledgment of the fact of payment.”

The word “safekeeping” as defined by the same authorities is that “Where an instrument signed by a depositary, acknowledging that another person has deposited with him for ‘safekeeping’ a certain number of dollars in gold, which the depositary is to return when called for, such phrase implies that there is a special deposit.” (Wright v. Paine, 62 Ala. 340, 344, 34 Am. Rep. 24.)

It must be admitted that only money in possession could be meant by the word “receipt” or “safekeeping.”

The word “disbursement,” which is used interchangeably with the word “transfer” in sec. 6975, supra, has been construed to mean “money expended by an executor, guardian, trustee, etc., for the benefit of the estate in his hands or in connection with its administration.” This word is also defined in the Century Dictionary, vol. 2, p. 1644, as follows: “1. The act of paying out or expending as money. 2. Money paid out; an amount or sum expended, as from a trust, or a corporate or public fund; as, the disbursements of the treasury, or of an executor or a guardian. ’ ’ The Standard Dictionary, page 521, defines “disbursement,” as, “1. The act or process of disbursing. 2. A sum paid out; money expended, especially from public funds.”

The above definitions of the words, “receipt,” “safekeeping,” “transfer” and “disbursement” of public moneys are all inconsistent with any idea except that the person transferring or disbursing has the actual corporeal possession, control or custody of the thing sought to be transferred or disbursed.

The state auditor, in his official capacity, is not the custodian of public moneys within the meaning of sec. 6975, Rev. Codes, supra. He is not authorized to receive public moneys or to safely keep, transfer, or disburse the same. In order to warrant his conviction under sec. 6975, supra, it must be found that he is charged, or in some manner entrusted by law with the receipt, safekeeping, transfer, or disbursement of public moneys.

In our opinion, sec. 6975, Rev. Codes, supra, was aimed at the crime of embezzlement and against a particular class of persons who fraudulently appropriate to their own use, or to the use of others, not in the due and lawful execution of their trust, any property which comes into their possession or under their control by virtue of the official position which they hold or in violation of a trust. Under the law of this state, a state' auditor does not come within the class of persons against whom said section is aimed, for the reason that he is not charged under the statute with the receipt, safekeeping, or disbursement of public moneys. He is but one of several whose combined acts are absolutely necessary to ultimately bring about the disbursement of public moneys.

From an examination of decisions construing practically the same provisions that we have in said section 6975, Rev. Codes, it has been universally held that auditors, who are not charged with the receipt, safekeeping, transfer, or disbursement of public moneys, do not come within the meaning of said section. (State v. Pierson, 83 Ohio St. 241, 93 N. E. 967; State v. Heath, 70 Mo. 565; 10 Am. & Eng. Ency. Law, 1019, 1020; Moore v. State, 53 Neb. 831, 74 N. W. 319; State v. Moore, 56 Neb. 82, 76 N. W. 474.)

"When penalties are directed against a particular class, a description of the class and of the defendant as coming therein are essential elements of the crime and must be charged and proved. (Moore v. State, supra.) Under the constitution and laws of this state certain officers are required to charge, collect and account for fees received for services performed in an official capacity, while other officers, performing like services, are not required to so charge, collect, or account for such fees. For example: Probate judges and other specified officers are required to charge and account for fees received by them for performing marriage ceremonies. Justices of this court and district judges are not, because they are not within a class who are charged with the receipt, safekeeping, or accounting of such fees.

In the case of the State v. Newton, 26 Ohio St. 265, the supreme court in construing section 6841, Revised Statutes of Ohio, which is similar to sec. 6975, Rev. Codes, said:

“Under the laws as they stood prior to the year 1858, the oath of office and official bond of a state or county treasurer were deemed sufficient, without the aid of criminal legislation, to insure the safety and proper application of all money that might come into their hands by virtue of their respective offices.....

“The auditor of state as to the treasurer of state, and the county auditor as to the county treasurer, under the prior laws, stood in the same official relation to each other that they do now, and their relative duties were substantially the same. Under the prior laws, no one supposed that the county auditor was responsible for the public moneys in the hands of the county treasurer, and clearly the law imposed no such responsibility, and there was no complaint on the part of the public that the auditor of state or county auditor had not faithfully and satisfactorily performed their official duties; and hence, as to them, there existed no necessity for penal legislation. While this was the ease in reference to state and county auditors, it was not so in reference to state treasurers, county treasurers, and other’ officers into whose hands the public moneys came by virtue of their offices or employment. Defalcations by these officers became frequent, the treasurers of state not excepted. The public money was squandered and lost; . ... In these respects, the evils became insufferable, and, for the purpose of remedying them, the legislature, in 1858, passed two statutes — the first entitled ‘An act to further provide for the better regulation of the receipt, disbursement, and safekeeping of the public revenue’ (S. & C. 1596); the second entitled ‘An act to establish the independent treasury of the state of Ohio.’ .... The provisions of these acts are much more stringent, in all respects, than those of previous acts, as applied to treasurers of state or county treasurers; . . . . it is impossible to avoid the conclusion that the penalties provided by the fifteenth section of the independent treasury act are particularly pointed at treasurers — state, county, township, city — and other officers whose duties are similar, and not at auditors of state or county auditors.”

In the case of Storm v. Territory, 12 Ariz. 35, 94 Pac. 1102, the supreme court of the state of Arizona had under consideration sec. 439, Arizona Rev. Codes of 1913 (sec. 398, Penal Code, 1901), which is identical with-sec. 6975, Rev. Codes, sv/pra. The defendant, a county treasurer, had been convicted of embezzlement and on appeal the supreme court said: ‘ ‘ The judgment and sentence of the court denominated the crime for which the defendant was indicted and convicted as embezzlement. It is contended that this is erroneous; that the crime is not embezzlement. That portion of sec. 398 of the Penal Code [sec. 439 of the 1913 Revision] under which the defendant was indicted and convicted reads: ‘ Every officer .... of any county, .... of this territory, .... charged with the receipt, safekeeping, transfer or disbursement of public moneys, who, .... without authority of law, appropriates the same or any portion thereof to his own use, . . . . is punishable, . ... ’ The appropriation by a county treasurer to his own use, without authority of law, of public moneys in his official possession, is fraudulent, and is therefore embezzlement. Therefore the judgment and sentence of the court are not erroneous in describing the offense of which defendant was convicted as embezzlement.”

It is not charged in the indictment that the defendant Huston misappropriated public moneys which were actually in his possession or under his control as state auditor, or that he aided or abetted the lawful custodian in misappropriating the same.

The state auditor cannot legally draw a warrant in favor of a claimant, such as the one described in the indictment, except as authorized and directed so to do by the state board of examiners, whose duties in this respect are prescribed by the provisions of sec. 146, Rev. Codes, as amended, Sess. Laws 1913, p. 58, reading as follows: “It shall be the duty of the state board of examiners to examine all claims, except salaries and compensation of officers fixed by law.....The board may approve or disapprove any claim or demand against the state or, any item thereof, or may recommend a less amount in payment of the whole, or any item thereof..... But no claim shall be examined, considered or acted upon by said board, unless the state auditor, as secretary of the state board of examiners, shall have indorsed thereon the certificates required to be made by him by section 145h, and unless receipted vouchers are therewith showing the payment of all items for which reimbursement is asked.” (Thomas v. State, 16 Ida. 81, 100 Pac. 761; Winters v. Ramsey, 4 Ida. 303, 39 Pac. 193; Bragaw v. Gooding, 14 Ida. 288, 94 Pac. 438; State v. Hallock, 20 Nev. 326, 22 Pac. 123; Pyke v. Steunenberg, 5 Ida. 614, 51 Pac. 614.)

The state treasurer is not only authorized under the law, but it is made his duty, as such officer, to refuse the payment of a state warrant drawn by the state auditor unless he' is satisfied that it is a proper and legal charge against the state. (Gibson v. Kay, 68 Or. 589, 137 Pac. 864; State v. Brown, 10 Or. 215; Crutcher v. Cram, 1 Ida. 372.) A warrant drawn by the state auditor is but prima facie, and not conclusive evidence of the validity of the allowed claim, and unless there is authority of law for the payment of such claim, the treasurer may refuse, and indeed it is his duty to refuse, to pay the warrant, even if funds are appropriated. (Goldsmith v. Baker City, 31 Or. 249, 49 Pac. 973; State v. Lindsley, 3 Wash. 125, 27 Pac. 1019; State v. Brown, 10 Or. 215; Shattuck v. Kincaid, 31 Or. 379, 49 Pac. 758.) In the case of the State v. Hastings, 10 Wis. 525, the court said: “And in respect to the auditor, to whom there is a delegation of authority to do all acts connected with accounts and claims against the state, and to certify them to the treasurer for payment, it may be said that he is a general agent. But it by no means follows therefrom, that all his acts are conclusive upon the state. There is a broad distinction in this respect between the acts of general agents of the public and those of general agents of private individuals or corporations. Whilst the latter may, and oftentimes do, bind their principals, when acting beyond the scope of their authority or instructions, yet the former never can.”

An officer not charged by law to collect, and who has no right to the public money, cannot be convicted of embezzling money received under color of his office, though he falsely represented that he was entitled by virtue of his office to receive it. (State v. Bolin, 110 Mo. 209, 19 S. W. 650.)

In the case of Sherrick v. State, 167 Ind. 345, 79 N. E. 193, the court said (quoting from an opinion of Justice Marshall, in United States v. Wiltberger, 5 Wheat. 76, 96, 5 L. ed. 37) : “ ‘To determine that a case is within the intention of the statute its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a ease which is within the reason or mischief of a statute is within its provisions, so far- as to punish a crime not enumerated in the statute because it is of equal atrocity or of a kindred character with those that are enumerated.’ Penal statutes are to reach no further in meaning than their words. No person is to be made subject to them by implication; and all doubts concerning their interpretation are to preponderate in favor of the accused.....Johns v. State, 19 Ind., at page 429, 81 Am. Dec. 408; Bishop, St. Crimes (3d ed.), sec. 190e; McClain, Cr. Law, sec. 85; ... . State v. Meyers, 56 Ohio St. 340, 47 N. E. 138; .... To illustrate: A statute making a county treasurer who converts the public moneys in his custody guilty of embezzlement cannot be extended to embrace his deputy. (State v. Meyers, supra.) ” In the case of Sherrick v. State, supra, the court further said: “Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of the criminal law. ’ ’

As we have heretofore stated, it is not alleged in the indictment that the defendant is a person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who, “without authority of law, appropriates the same or any portion thereof to his own use, or to the use of another”; but the pleader adroitly attempts to apply said statute by merely alleging that the state auditor, “as such auditor charged with the lawful disbursement of public moneys, did, willfully, unlawfully, and feloniously and not in the due and lawful execution of their [his] trust as such public officers [officer] appropriate funds and public moneys belonging to the State of Idaho, without authority of law by then and there paying to the said Robert Wallis, as salary, the sum of ninety ($90.00) ” Not being charged with the receipt, safekeeping, transfer or disbursement of the public moneys under said section, he cannot be charged with the unlawful and felonious disbursement of said moneys not in the due and lawful execution of his trust. It is not contended that the money was appropriated for a personal use by the state auditor, but that he appropriated the public moneys to the use of another, by then and there paying to the said Robert Wallis, as salary, the said sum of $90, lawful money of the United States, out of the traveling expense fund of the state dairy, food and sanitary department appropriation of the state of Idaho, for services rendered in the bacteriological department of the health department of the state of Idaho. This would be a physical impossibility, for the reason, as above stated, he did not have the custody, control, or power to disburse public moneys. In drawing a warrant in favor of the claimant Wallis, he merely acted in a ministerial capacity.

It is not contended that the claim presented against the state was not a lawful claim authorized by law. It further appears that the claim was properly presented to the state board of examiners; that it was audited and allowed; that the auditor was directed by said board to draw a warrant in favor of the claimant in full payment for the services rendered, as appeared upon the face of the claim presented to the state board of examiners and by said board allowed. The state board of examiners, under the law and the constitution, has the sole and absolute discretion in passing upon what are and what are not valid and proper charges against the state. A writ of mandamus will not lie to compel said board to act favorably or unfavorably upon a claim so presented. Neither will a writ of prohibition issue to restrain said board from allowing or disallowing a claim against the state. Under the law, it is incumbent upon a claimant to submit in proper form a claim against the state, accompanied by original vouchers or receipts of any evidence of indebtedness against the state. After a claim has been submitted to the state board of examiners as provided by law and the same has been examined, audited and allowed and the auditor directed to draw a warrant in favor of the claimant, in the absence of collusion, theft or actual fraud upon the part of the claimant and the auditor, or the claimant and the state board of examiners, although a mistake is made by the auditor in drawing said warrant upon the wrong fund or item in the same department, resort should be had to the civil rather than the criminal law, as provided by sec. 145i, chapter 15, Sess. Laws 1913, p. 57, which reads: “For the proper performance of the duties herein enjoined upon the state auditor, as secretary of the state boalrd of examiners, or for any unlawful or irregular payment of any account submitted against the state, the state auditor is hereby made responsible upon his official bond. ’ ’

It seems to us that it would be both cruel and inhuman to incarcerate a public official in the state penitentiary or to visit upon him the disgrace and humiliation of an indictment and trial, who, while acting in a ministerial capacity and under the direction of- a properly constituted board — whose duty it is to audit, examine and allow claims against the state — drew a state warrant upon the wrong item in an appropriation for the maintenance of a department or an integral part thereof. There is no single question which has so often taxed the patience and industry of the courts as the question of deciding just where and when “authority of law” does or does not exist. In deciding this question, courts and others learned in the law often disagree and are sometimes mistaken. The state auditor is not supposed to be an officer learned in the law, yet he is charged with the responsibility of deciding whether “authority of law” exists for paying a given claim out of a given fund; or, what amounts to the same thing, he must decide, in the first instance, whether there is any “authority of law” to make a given claim a charge against the state, and he must then determine out of which fund, under “authority of law, ” the claim may be paid. It never was the intent of the law to hold the state auditor, or any other public official, criminally responsible under a severe penalty, for a mistake in judgment when presenting or allowing a claim against the state, or for a failure to be always right in his decisions, in the absence of actual fraud, theft, conspiracy to cheat, or some felonious and unlawful attempt to deprive the state of its public moneys. Even the most learned and able judge might well shrink from accepting the responsibility of at all times being absolutely right in determining when a given claim is within or without “authority of law.”

In the ease of the United States v. Elvina, 24 Philippine Rep. 230, the court says: “One who has actually paid out the public funds in good faith to persons who have rendered services to the municipality of which he is treasurer, and under and in accordance with resolutions of the municipal council authorizing him to make such payments, is not guilty of the crime of misappropriation of public funds, although such payments may have been made_ in violation of law.

“Where the money alleged to have been misappropriated was paid out in the interest and for the benefit of the municipality, in good faith and in the honest belief that it was his duty as municipal treasurer to make such payment, such funds so paid out are not criminally misappropriated, although they may have been paid out on insufficient vouchers or improper evidence.

“Where a municipal treasurer makes an honest mistake as to the law or to the facts concerning his duties relative to the expenditure of public funds, and actually and in goad faith pays out such funds under such mistake, he is not guilty of the crime of misappropriation of public funds, although he may be civilly liable to reimburse the municipality.”

In this proceeding, the only question to be determined is the legality of the restraint under which the petitioner is held, and in view of the conclusions that have been reached in this case, we do not feel called upon to further construe sec. 6975, Rev. Codes, or the provisions of the general appropriation act passed by the 1913 legislature, Sess. Laws 1913, p. 637.

Having decided that the facts alleged in the indictment do not state a public offense against the petitioner, it follows that the petitioner must be discharged, and it is so ordered.

Sullivan, C. J., concurs.