The evidence in this case should be considered in exactly the same manner as any other case, and in so doing the same rules must be applied as though this were an ordinary suit between two individuals instead of a suit between the State of Illinois on one side and the Governor of the State on the other. It is elementary that the complainant having filed its bill, basing its right to relief on certain specific allegations, to sustain a decree in its favor the burden rests upon it to prove, by evidence, the material allegations of its bill in manner and form as therein alleged. It is not incumbent on the defendants to disprove them. We have repeatedly held that liability cannot rest upon surmise, guess or conjecture, nor upon a choice between two theories equally compatible with the evidence, but must rest upon competent evidence fairly tending to prove the same. It cannot rest, in this case, upon any presumption, — much less upon presumption based upon presumption, — because presumptions of fact are not evidence nor can they be weighed as evidence, (People v. Cochran, 313 Ill. 508,) but *Page 558 can only take the place of evidence in the absence of evidence as to the specific fact sought to be presumed. No presumption as to liability can be considered or weighed in this case, as Small has testified to a state of facts absolutely inconsistent therewith, and he is corroborated by other undisputed evidence.
Various legal questions, some of them having apparent merit, are raised in the answer of Small and discussed in his brief and argument, any one of which, if solved in his favor, would be a bar to this suit. Many of these questions are not discussed or mentioned in the majority opinion. The opinion does, however, discuss and cite authorities in opposition to Small's contention that appellee is by the verdict of not guilty in the criminal case estopped from again litigating the question whether a conspiracy existed between Small and the Curtises, the charge and parties being the same in each action and both actions arising out of the same transactions. It is to be noted that in none of the cases cited from this State are, as in this case, the parties and the issues the same. In each case the suit was brought by an individual, — not by the State, — to recover private damages alleged to have been sustained by the individual by reason of the commission of the criminal offense. The cases cited can therefore have no application to this case. The opinion also cites section 21 of division 2 of the Criminal Code, which provides: "Nothing in this act contained shall be so construed as to prevent the party injured from having and maintaining a civil action for all damages and losses that he may have sustained in consequence of the commission of any criminal offense herein provided for; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby." It is apparent from a mere reading of this section that it has no application to the question here involved. There is here no plea that a private injury was merged in a crime, but it is contended that in a suit between *Page 559 the same parties the identical question here sought to be litigated, — i. e., the question of the existence of a conspiracy between Small and the Curtises, — had been litigated, and that appellee is therefore, by reason of estoppel by verdict, barred from again litigating the same question. I will not, however, further discuss these legal questions, which are more or less technical, but will confine myself to the merits of the case as disclosed by the evidence and base this opinion thereon.
Small held the office of State treasurer of Illinois, — an office of the executive department of the State created by the constitution, — and was by the constitution required to give a bond. His liability to account for all moneys coming into his hands and without loss or defalcation pay the same over to his successor in office, less such sums as he had legally paid out, was absolute. He was an insurer of the safety of the funds. Being such constitutional officer and such insurer of the funds, the legislative department of the State was without power to control him in the matter of the safeguarding of the funds in such manner as to increase his risk as insurer. The constitution did not prescribe the place where he should keep such funds nor the manner of their keeping. The legislature, by reason of its constitutional restriction, could not do so. Its only power in the premises was to protect the State by requiring a bond, requiring the keeping of books of account, and prescribing the manner of the payment of funds into and out of the treasury and the method of accounting therefor. To this end there was legislative action as to each of these matters. By section 12 of chapter 130 (Hurd's Stat. 1917) it was provided: "He shall keep regular and fair accounts of all moneys received and paid out by him, stating, particularly, on what account each amount is received or paid out." The accounts of receipts and expenditures being required by law to be kept were official records. Being the only ones required by law to be kept they were the only official books *Page 560 of the office. It has been frequently held by this court that books kept by an officer which are not required by law to be kept, but which he keeps in the office for his own convenience and information and for the convenience and information of his assistants in the office, are not official books but the private books of the officer.
When Small entered upon the duties of his office as State treasurer there was upon the statute books of this State the following: "That the State treasurer shall deposit all moneys received by him on account of the State within five days after receiving same in such banks in the cities of the State as in the opinion of the treasurer are secure and which shall pay the highest rate of interest to the State for such deposits. The money so deposited shall be placed to the account of the State treasurer." (Hurd's Stat. 1917, chap. 130, par. 22.) It is contended by appellants that this section of the statute is unconstitutional. In the majority opinion it is said with reference to this question: "There is no attempt in this proceeding to make any application of this statute which will prejudicially affect the interest of any of the appellants, and its validity or invalidity is therefore wholly immaterial to the issues of this case." Its constitutionality, however, is a material question in this case, as in the bill filed herein the specific unlawful acts charged were, "that said defendant, Small, did not comply with the requirements of the statute of the State of Illinois as to a large part of the public moneys in his possession by virtue of his said office, and did not deposit such large part of said public moneys in banks in the cities of the State of Illinois, and turned over such large part of said public moneys to the control of said Edward C. Curtis and Verne S. Curtis," and the execution by them of pretended certificates of deposit purporting to be issued by the Grant Park Bank when there was in truth and in fact no such bank as the Grant Park Bank. A demurrer was filed to this portion of the bill by the defendants on the ground that this *Page 561 section of the statute was unconstitutional, and upon a hearing Judge Norman L. Jones sustained the demurrer, holding the statute to be unconstitutional. Without discussing the question as to whether or not this statute was an unconstitutional attempt on the part of the legislative department to interfere with the executive department, this statute was clearly discriminatory in conferring special privileges upon banks in cities. By its provisions the deposit could not be made in banks in villages, incorporated towns or unincorporated territory. It is a matter of common knowledge that in this State there are villages, such as Oak Park, having a population of over fifty thousand, while the great majority of cities in the State have populations of less than one-half that number. This act was therefore rightly held invalid, and its provisions cannot be considered as having any bearing in this case.
A vast amount of testimony was taken before the master in chancery in an evident attempt to trace the State's funds through the hands of the Curtises, to impress upon such funds, wherever traced, the State's ownership and sequester the funds, and in furtherance of such an attempt an extensive tabulation, substantially the tabulation found in the majority opinion, has been presented to us by appellee. As the net result of this mass of evidence the master made his finding of ultimate facts. He did not find that the appellants had entered into an unlawful combination, conspiracy or confederacy. He did not find that Small had ever received a dollar of the interest, discounts or profits upon the funds turned over to the Curtises. The ultimate facts which he did find with reference to the funds were, that "various large sums of the State's funds were transferred by the defendant Small to the defendant Verne S. Curtis and one Edward C. Curtis, now deceased, the said Edward C. Curtis and Verne S. Curtis doing business usually in such transactions as the Grant Park Bank; that such funds were used in most instances by the said Curtises *Page 562 for investment in various notes of Armour Co., Swift Co., Morris Co., Cudahy Co. and Wilson Co., and various sums were received by the said Edward C. Curtis and Verne S. Curtis during said period as and for interest and discounts upon said public funds, for which no accounting has been made to the State of Illinois." None of these facts were in dispute but were alleged in the answers of appellants. The master also found "that the alleged Grant Park Bank referred to in this case was not in fact a bank, but a mere agency used and operated by the said Edward C. Curtis and Verne S. Curtis for the handling and investment of the public funds of the State of Illinois." To these facts he sought to apply the doctrine of sequestration and recommended an accounting. It is evident, however, that this doctrine could not be applied, as the evidence introduced by the State showed indisputably that the funds to which this doctrine could be applied, if applicable at all, — i. e., the funds transferred by Small to the Curtises, — had every dollar been paid back into the State treasury.
The master did not recommend a decree in accordance with the prayer of the bill, as stated in the majority opinion. He did not find a joint liability, but found that Small should account for all the interest, discounts and profits earned on the public funds during his term as State treasurer. He also found "that the defendants Verne S. Curtis, and Etha G. Curtis as administratrix of the estate of Edward C. Curtis, deceased, should account to the complainant in this proceeding for all interest, discounts and profits collected upon the public funds of the State of Illinois by the said Edward C. Curtis or Verne S. Curtis, or by the so-called Grant Park Bank, or any one for them or either of them." He recommended a decree "in accordance with the foregoing recommendation." This was not a recommendation for a decree finding an unlawful conspiracy or an unlawful or fraudulent confederacy or combination nor a recommendation for a decree fixing joint liability on the *Page 563 part of appellants, but was a recommendation for a several accounting. The court in its decree does not find that any of the interest, profits or discounts on these funds had been received by Small and retained by him for his private gain and not accounted for to the State. The decree does not find, as stated in the majority opinion, "that large sums of money were collected by the Curtises for the benefit of Small," but does find that they "received from said investments divers large sums of money as interest or discount, which were appropriated to the use and benefit of the said Len Small, Edward C. Curtis and Verne S. Curtis, or one or more of them." Nor does it find that Small and the Curtises entered into an unlawful confederacy, as stated in the majority opinion. The decree found that appellants entered into a fraudulent combination, plan or scheme through and by which State funds were transferred to the Curtises by Small, and found that appellants were jointly and severally "liable for and obligated to pay over at once to the State of Illinois all discount, interest, profit or income paid to and received by them or any one of them for the alleged Grant Park Bank" from the use of such funds.
Before a decree for joint liability can be sustained upon this bill it must be shown that Small and the Curtises entered into an unlawful plan or scheme to not account to the State of Illinois for moneys due the State, and also shown that each one of them was knowingly a party to such scheme. Even if it be conceded, — which it is not, — that Small at the time he turned the moneys over to the Curtises did not intend to account to the State for interest or profits received by him and that he has not done so, before there can be a joint liability the evidence must show that each of the Curtises knew of such intention and were conspiring with Small to accomplish such intention. Mere proof that State moneys were turned over to the Curtises, that they knew the funds to be State funds and that they derived *Page 564 profits therefrom will not suffice. If that were the rule, then every one of the two hundred or more banks throughout this State which had borrowed State funds from the State treasurer could be compelled to account to the State for the profits derived by them from the funds loaned to them, because in each instance the bank borrowing the money knew the funds to be State funds and procured the loan to be made for its individual gain. It is the law, as stated in the majority opinion, that where liability arises from an intentional wrongful act of several parties conspiring together, each is liable for all resulting damages; but the law is equally well settled that before a party can be subjected to such joint liability it must be shown not only that the act was wrongful and the result of the conspiracy, but that the party sought to be held jointly liable was a party to the conspiracy. When the Curtises made their arrangement with Small they were not dealing with a person whom they knew to be a mere stakeholder, custodian or bailee of funds, having no legal right to loan them, or with a person who they knew had no right to loan funds and therefore chargeable with notice of the illegality of the transaction, but they were dealing with a person who they knew had a right to loan the funds and whom the legislature by a statute was seeking to compel to loan the funds.
The larger portion of the majority opinion consists of an attempt to prove the amount of funds turned over by Small to the Curtises and to trace those funds. That there was an arrangement made between Small and the Curtises, that large sums of the State funds were transferred to the Curtises, that the Curtises derived large profits therefrom, and that not all of such profits and income was turned over to the State treasury, is not disputed. Those facts are alleged in the answer of Small and testified to by him. Proof of these facts, alone, does not constitute ground for joint liability to account. The same facts were true with reference to every other bank which had State funds. The State *Page 565 did not attempt to show what the arrangement was under which the funds were loaned to the Curtises. It is conceded that there is no direct evidence of any unlawful agreement, but it is said in the majority opinion that a conspiracy can be proved by circumstantial evidence, and that where a conspiracy is once established every act and declaration of each member in furtherance of the common design is in contemplation of law the act and declaration of all the members, and is therefore original evidence against each of them. But it is likewise true that before any act and declaration of one member of a conspiracy can be used as evidence against another who is alleged to be a co-conspirator, the conspiracy itself must be first established by evidence. A conspiracy must be proved like any other fact. To justify the conclusion that a conspiracy existed there must be evidence of some agreement or joint action toward accomplishing the object of the conspiracy. (People v. Holtz, 294 Ill. 143.) If a conspiracy existed in this case it was a criminal conspiracy and one punishable by imprisonment in the penitentiary. The undoubted rule in such case is, that before a conspiracy can be established by purely circumstantial evidence the guilt of the accused must be so thoroughly established as to exclude every reasonable hypothesis of his innocence. (Purdy v. People, 140 Ill. 46;People v. Ahrling, 279 id. 70.) Where, in a case in which a conspiracy is sought to be proved by circumstantial evidence, the evidence, when considered all together, can be explained upon any reasonable hypothesis other than the existence of the conspiracy, it is the duty of the court to find that such conspiracy did not exist.
Small testified as to the arrangement and his reasons for entering into it. He testified that he had been State treasurer at a former time and assistant treasurer of the United States, and knew the danger incident to the custody of public funds and his absolute liability for any loss; that he believed it to be his duty to place the funds in his hands at *Page 566 interest; that he went to see the officers of several of the largest banks in Chicago, giving their names; that while they were willing to take the money on deposit they all refused to give him indemnity or collateral security; that he advised with his brother, a former judge of the circuit court, and told him that the large Chicago banks refused to put up collateral, and he replied that he did not know that it would be worth anything if they did, because there was a grave question whether a bank organized under the national banking laws could take some of its assets and give them to a depositor, making him, in effect, a preferred depositor or creditor of the bank; that they talked about private banks, and his brother said there was no question but that a private bank could do it, because it was not under the same restrictions as a State or a National bank, and that everything a private banker owned, — all of his property, — was back of the depositors in the bank; that he talked with a good many other persons besides Judge Small, as he was anxious to see that every cent of the State's funds was preserved; that he talked with his predecessor and with senator Curtis, and went over the matter with him; that Curtis (E.C.) finally told him that if he wanted to deposit the money in Curtis' private bank he would take care of those funds which could not be deposited permanently, and would put up such collateral as he would indicate and pay a reasonable rate of interest upon the money so deposited; that the Grant Park Bank was a private bank owned by Edward C. Curtis, — not that the Grant Park Bank was doing a general banking business; that before making the first deposit E.C. Curtis deposited with him a large amount of bank stock and other securities as general security, to apply on any certificate of indebtedness and any deposit which might be made during his term of office; that thereafter he made deposits in the Grant Park Bank; that these deposits were made by draft mailed from the Springfield office; that in each instance before the draft was mailed Curtis gave him *Page 567 a certificate of deposit of the Grant Park Bank therefor; that in every instance Curtis gave him collateral therefor; that he had no interest in any of this collateral except as their custodian as security for the State's funds. There was no secrecy about the making of these deposits.
Harry C. Luehrs, who was cashier in the treasurer's office from 1905 to 1915, when he became assistant treasurer, (a position he retained until August 1, 1922,) while a witness called by the State, testified: "There was no secrecy about the opening of the safe account. It was established openly, as much as the 'vault account' or the 'open account.' Certain drafts that were issued were charged to the safe account, the same as any other account. There appeared on the tickler each day any fluctuations each day, the same as any other account. The fact that the safe account existed was known to such employees as made entries with respect to the vault account, and such employees had equal opportunities of knowing of the safe account. From time to time drafts were sent to the Grant Park Bank. It was done in the course of business at the office," and that the name of the Grant Park Bank appeared on the records in the office in Springfield.
Edward C. Beck, a witness for the State, who had been connected with the treasurer's office from 1909 to 1913 as assistant treasurer and from 1915 to the time of the trial as cashier, testified: "The tickler showed the amount of money in the safe account during the term of the defendant Small. As far as my duty was concerned, the safe fund was kept in the same manner as the vault account. One account was kept just as open as the other, and each account was subject to the examination of any person in the office of State treasurer during the term of defendant Small. There was no secrecy about the entries relating to the safe account."
Edward Trobaugh, an employee of the treasurer's office and at the time of testifying a United States deputy collector, *Page 568 a witness for the State, testified that in the treasurer's office during the Small administration there was kept a book of daily balances called the "tickler," the entries in which showed the balances which were made at noon each day, and that such entries showed the condition of the account of each fund in the office at noon on that day. He also testified: "There were entries made in the tickler that had to do with the Grant Park Bank. They were made under the name of 'Total.' At the time I made such entries under 'Total' I knew that they referred to transactions with the Grant Park Bank. I knew by information received from Mr. Beck or Mr. Luehrs. Those entries were made in the course of business in the same fashion other business was made concerning other banks, excepting others were kept under another head, but the entries were made in the same course of business as other entries relating to other banks. I did not know it as the safe account during Small's term. The designating of various accounts as 'vault account,' 'safe account,' 'total,' was a mere matter of book-keeping, as I understood it. The entries concerning the Grant Park Bank were made in the same due course of business as other entries, were open to the inspection of employees of the office." He also testified: "During the six months I worked in the cage as assistant paying teller I am pretty sure I drew some drafts to the Grant Park Bank. That was done in the course of business and in the same manner as drafts were issued to the other banks. Transactions in the Grant Park Bank were noted in the draft register and in the tickler. I wouldn't say they were not noted in other records. I didn't mean to say there were no other records kept of transactions with that bank. The entries as to the Grant Park Bank in the tickler or any other record were made in the same way as the entries concerning other banks. Those entries were made openly in the course of business, the same as other entries were made. The draft register was openly kept as any other record in the office of *Page 569 the State treasurer, and the drafts to the Grant Park Bank were entered in the same manner as any other drafts were entered."
It is urged by appellee that it is a circumstance in its favor that this arrangement was made by Small personally and not with subordinates in Springfield. It certainly should not militate against a public officer that he gave his personal attention to the details of an official matter of importance. Much money might be saved the State if other public officers would give their personal attention to the duties of their office and not delegate them to subordinates.
Another circumstance suggested by appellee is, that the collateral, and the only record of it, were kept by Small in "his private safe in his private office above his bank in Kankakee." As we have seen, Small, as a constitutional officer, was an insurer of the absolute safety of the funds. The constitution did not, and the legislature could not, designate a place in which he should keep the funds and collateral in his hands, but of necessity the entire matter of the safeguarding of the funds and collateral was delegated to the discretion of the officer. The evidence of the clerks in the treasurer's office, called as witnesses by the State, is to the effect that the quarters in the office in Springfield were too limited to keep all the collateral and transact all the business of the office there, and that "during the first few months of Small's term there were practically no facilities in the office to accommodate the collateral." Small, as treasurer, maintained an office in Springfield, one in Kankakee and one in Chicago. Luehrs testified that the Chicago office was established during the term of Smulski as treasurer, many years before, and had been maintained by all succeeding State treasurers, and that during the terms of all of the treasurers part of the collateral was held in some safety deposit box in Chicago. According to Small's testimony, part of the collateral received from the various banks was kept in a safety deposit box in Chicago and part in a safe *Page 570 in the office in Kankakee. That Small did not claim any personal interest in this collateral, and that the safe was not "his private safe in his private office," as stated in the opinion, is manifested by the fact that as State treasurer he kept this safe and its contents insured in the name of the State treasurer, for the benefit of the State, in the sum of two million dollars against robbery and burglary, which insurance policies are exhibits as evidence in the case.
Two facts are stated in the majority opinion as reasons why the moneys loaned to the packers were not call loans and that Small's version of the arrangement with the Curtises was not correct: First, that while E.C. Curtis was laying the foundation for the loans to the packers he told them that he was acting as the financial agent for a string of banks which he and his associates controlled, and that he pooled the funds of these banks and bought notes for large sums directly because he could loan the surplus of the several banks to better advantage than they themselves could, and because he could make more favorable terms to the borrower by giving him advance notice if he found it necessary to have the loan paid when the note was due. It is to be noted that this statement of Curtis is somewhat evasive as to the source of the funds which he was actually loaning. The evidence of disinterested parties shows that Curtis was connected with fifteen or twenty banks in different parts of the State and that the packers' notes were high-class securities, and even if the notes were taken for definite times they were readily convertible into cash. This is evidenced by the rate of interest which they bore. The failure to disclose the true source of the funds to the packers is a circumstance readily explainable on a reasonable theory consistent with innocence, and cannot, therefore, be considered a circumstance proving a conspiracy. Curtis could hardly be expected to tell the parties from whom he was trying to get four and a half or five or a larger per cent interest that he had borrowed the money from the State and *Page 571 was only paying two per cent. It is fair to assume that none of the other two or three hundred banks in the State who had State funds, when they loaned such funds at five or six per cent interest, disclosed to the borrowers that the funds were State funds upon which they were only paying two or three per cent.
The second fact, which the opinion calls the more important fact, is, that "in no instance during the two years was any of the $30,000,000 loaned to the packers called by the treasury before the note was due. Almost all the loans were discounted for a definite period, usually six months or less. The agreement made by E.C. Curtis with the packers that money would be available for definite periods and that the payment of the notes would not be demanded without due notice was carried out." The packers do not testify to such agreement. While it had been Small's experience in his former term, and the experience of former treasurers, as shown by the testimony of Luehrs, that the expenditures of the State at certain seasons of the year were such that sudden demands required the keeping of liquid balances, it is a matter of common knowledge that early in Small's term this country entered into the World War and that in this State a policy of rigid economy was adopted. Large contemplated improvements for which moneys were being provided were temporarily abandoned, and by reason thereof vast sums of money were accumulated in the State treasury which otherwise would have been paid out. There was, therefore, no necessity to call any of these loans before they were due.
It is stated as a circumstance that these packers' notes were delivered to E.C. Curtis at times for collection from two to six days before they became due, and that during such times the deposit was not secured. There is no competent evidence in the case showing that Curtis had the notes in his possession for such periods, but even if it were shown, the deposit was not unsecured, as Small had not only the *Page 572 certificates of deposit, for the redemption of which Curtis' entire property was liable, but he also had Curtis' bank stock and general collateral, which had been given him as security for any loan which might be made during Small's term as treasurer. The State was not unsecured. It had Small's official bond, amply sufficient to cover any loss. If Small trusted Curtis and lost thereby the State was not interested, as it was amply protected by the official bond. That Small trusted Curtis could not be a circumstance tending to prove a conspiracy, but rather the opposite. It would tend to prove that Small considered Curtis an honest man, rather than a man who was engaged in a conspiracy to rob the State. The evidence shows, moreover, that the Chicago banks had large sums on deposit which were entirely unsecured, where the risk was more hazardous.
An attempt is made to show that the Grant Park Bank was not a bank, and stress is laid upon the fact that "twenty-two people, who had lived and transacted business in Grant Park and that section of Kankakee county for many years and who were well acquainted with the Curtises, testified that the Grant Park Bank went out of existence in 1898, and that they had not heard of its doing any business since; that checks were generally used in the transaction of business in Grant Park, and that they had never since 1898 seen a check drawn on the Grant Park Bank." The existence or non-existence of the Grant Park Bank as a bank is not material in this case, as Small had as much right, under the law, to loan the funds to the Curtises as individuals as he had to any bank. Prior to January 1, 1921, any person, partnership, association or corporation (except corporations prohibited from exercising banking powers) could without notice to any person, and without a permit or charter from the State or United States, become a bank solely by the exercise of banking powers. A private bank might or might not be a bank doing a general banking business. It did not need a habitat, and many private banks had none, *Page 573 and their business was conducted on the streets, in private homes or wherever the proprietor happened to be. A bank is not necessarily a place or a building but is an institution or business. Private banks were abolished in this State by statute and went out of business January 1, 1921. Whenever, prior to that time, the question arose as to the existence of a private bank, the only question to be determined was, Were the powers of a bank exercised? The location of the bank, the number of its clientele or the notoriety of its existence was not a factor to be considered. In Reed v. People, 125 Ill. 592, it is said: "The ordinary and usual powers exercised by banks are to discount notes and receive deposits. They may, and often do, possess other powers, but these are the ordinary and usual powers conferred upon and exercised by banks and bankers." InOulton v. Savings Institution, 17 Wall. 117, it is said: "Banks, in the commercial sense, are of three kinds, to-wit: First, of deposit; second, of discount; third, of circulation. * * * Modern bankers frequently exercise any two or even all three of those functions, but it is still true that an institution prohibited from exercising any more than one of those functions is a bank in the strictest commercial sense."
The undisputed evidence in the case shows that some years ago Alonzo Curtis and his son E.C. Curtis formed a co-partnership under the firm name and style of "Grant Park Bank," for the purpose of carrying on a private banking business. Such co-partnership was authorized by law at that time to conduct such business, and for some years they conducted quite an extensive private banking business. While from 1908 to 1917 the business was dormant and not much private banking business was transacted by the bank, the evidence does show conclusively that some business was done, and that in 1917 there were still outstanding, unpaid, some certificates of deposit of the Grant Park Bank, and that there were loans made by the bank which were still outstanding, and that the affairs of the bank had not been entirely *Page 574 closed. There was, therefore, on Saturday, April 21, 1917, in existence, a co-partnership under the name and style of "Grant Park Bank," organized for the purpose of doing a private banking business and authorized by law to do such business. That this partnership existed and did a banking business from April, 1917, until January 1, 1921, is demonstrated by the evidence. It received deposits aggregating millions of dollars, issued certificates of deposit therefor, made loans, discounted bills, made collections, and in general did all those things that a private bank was authorized to do and which we have seen constituted the transaction of a banking business. The Grant Park Bank was recognized as existing as a private bank by all the employees of the treasurer's office, where its name appeared openly upon the books and papers. Letters containing drafts were frequently forwarded by mail to the Grant Park Bank and none of these letters were ever returned, so that it is evident that the postal authorities there knew of the existence of the Grant Park Bank. It had bank accounts in its name in different banks, and its endorsements were honored by the various banks for many million dollars. Its checking account at the Fort Dearborn National Bank did not, as stated in the majority opinion, remain the same at all times except for the interest on its daily balances, but the State's evidence shows that on one occasion the Grant Park Bank overdrew its account at the Fort Dearborn National Bank $96,906.46. This is evidence that the Fort Dearborn National Bank considered the Grant Park Bank not only as existing, but as a reliable and trustworthy institution.
It is mentioned as a circumstance that none of the public moneys deposited with it were loaned in its name, and that none of the interest or discounts on the loans to the packers were paid by the packers to the Grant Park Bank. In whose name the loans to Swift Co., Armour Co. and Cudahy Co. were made is not disclosed by the record, as the Swift notes were made payable to their treasurer *Page 575 and by him endorsed in blank, and the Armour and Cudahy notes were payable to themselves and endorsed in blank, and that when paid they were paid generally to the Live Stock Exchange Bank, or some other bank with which they had been left for collection. If the fact that the name of the Grant Park Bank does not appear in the transactions is a circumstance tending to show that it had nothing to do with the transactions, how much more potent evidence that Small had no interest in these transactions is the fact that in all the mass of testimony about these matters Small's name was never mentioned in connection therewith and that none of the packers ever saw him or heard of his having any interest in or connection therewith, and that, though it is claimed that the payment of all these notes has been traced, there is no document or witness tracing any part of these funds into his individual account, and all payments of principal and interest to Small, as treasurer, by the Curtises, are shown by the State and by Small to have been paid into the State treasury and accounted for. On the other hand, the remainder of the discounts and interest on the funds which are traced are traced into the hands of one or the other of the members of the co-partnership which existed under the name and style of "Grant Park Bank," and are shown to have been applied to purposes in which Small, neither as an individual nor as State treasurer, had any interest.
In determining the question whether or not there was actually in existence a private bank known as "Grant Park Bank," the definition of a bank, — i. e., "an institution authorized to receive deposits of money, to lend money and to issue promissory notes, (usually known by the name of bank notes,) or to perform some one or more of these functions," — must be kept in mind. The inquiry is not whether or not there was a building known as Grant Park Bank. The Grant Park Bank was a private bank that only accepted deposits and loaned money after 1898. If the private *Page 576 bank or institution was a co-partnership the individuals composing the partnership were the institution or bank and they were doing business under the name and style of "Grant Park Bank," and that institution could be sued or could defend a suit at law or in equity in the actual names of the individuals composing the co-partnership doing business as Grant Park Bank. If only a single individual (Edward C. Curtis) was conducting a private bank known as Grant Park Bank, then the bank or institution was Edward C. Curtis, and it could only be legally sued as Edward C. Curtis, and it would be proper to follow his name with the words, "doing business as Grant Park Bank." In no instance could the bank be sued directly as Grant Park Bank, whether it was one individual or was composed of two or more individuals who were co-partners. If the Grant Park Bank at any time was operated only by E.C. Curtis as a private banker, then the Grant Park Bank was E.C. Curtis, and the bank was wherever Curtis could be found in Illinois transacting the business of Grant Park Bank. "Grant Park Bank" was merely the trade or business name of the bank and was not a person in law, whether an individual or a co-partnership conducted the business. It was not a person within the meaning of the law. A corporation or an individual is a person or entity in law that may sue and be sued, but a co-partnership is not such a person or entity. No authorities are necessary on this proposition, particularly in Illinois, which is a common law State and governed by common law principles, in the main, in pleading and practice. In the absence of a statute the right of an individual to engage in the banking business in all or any of its departments would be unrestricted. An individual who is engaged in receiving deposits of money and in lending money or discounting notes is engaged in the banking business, and it was his right to do those things until the statute was passed in this State prohibiting the existence of private banks. Reed v. People,supra; Wedesweiler *Page 577 v. Brundage, 297 Ill. 228; Oulton v. Savings Institution,supra; 1 Bouvier's Law Dict. 228; Henderson Loan Ass'n v.People, 163 Ill. 196.
It is definitely established by the evidence that there existed from about 1891 up to January, 1921, a private bank known and designated as "Grant Park Bank." The evidence shows clearly and conclusively that as originally organized the bank was a co-partnership, composed of Alonzo Curtis and E.C. Curtis. The State proved by its witness H.J. Grounewoud that this private bank was assessed in Kankakee county, in which Grant Park is situated, in 1891 as "A. Curtis Sons;" in 1892 as "Curtis Son (Bank);" in 1893 as "A. Curtis Son (Bank);" in 1894 to 1897, both years inclusive, as "Grant Park Bank." It was never assessed as a bank after 1897, according to this witness, but the fact that it was not assessed as a bank can have nothing to do with the question whether or not the bank continued to exist.
Twenty-two witnesses who testified for the State on the question as to whether or not the Grant Park Bank existed after 1897, practically all agree that this bank was organized by Alonzo Curtis and his son E.C. Curtis, and did business as a private bank until the organization of the Grant Park National Bank in 1897 or 1898, and that this bank was conducted in the general store of Alonzo Curtis, or of Alonzo Curtis and his sons, by E.C. Curtis. During that period this private bank had a habitat, and it had books and fixtures, — at least a safe, — and it received money for deposit, loaned money and cashed checks on it for its depositors and others, who also, no doubt, had pass-books, as ordinary depositors have, in which their deposits were noted, as well as their canceled checks. When the National Bank was organized the Curtises became stockholders in that bank, — in fact, it was organized by the Curtises and others. The National Bank became the owner of all the furniture and fixtures of the private bank and of all its *Page 578 accounts, and it had charge of the building so far as the running of the bank was concerned; but it is also shown by the evidence for the defendants that Alonzo and E.C. Curtis did not dissolve their co-partnership or the private bank, but continued to do business as a private bank in the same building in which was conducted the National Bank, up until the death of Alonzo Curtis, some time in 1900. Marie A. Campbell, who was seventy-three years of age at the time she testified for the defendants, was an aunt of E.C. Curtis and sister of his mother. She testified that after the death of Alonzo Curtis, E.C. Curtis' mother assigned to him her interest in the Grant Park Bank. E.C. Curtis, after the death of his father, conducted this private bank as sole proprietor and in the name of "Grant Park Bank," according to the testimony of the witnesses who best knew the facts. After the organization of the Grant Park National Bank the Grant Park Bank never had any furniture or fixtures as a bank, except several private deposit boxes in other banks, in which were kept the promissory notes and other valuable instruments. It was not a bank that issued checks or cashed checks drawn on it by others, for the reason that its deposits were not subject to check, except in a few instances, perhaps, where checks were drawn on its deposits in other banks.
The facts we have just recited concerning this private bank are not seriously disputed by any one of the twenty-two witnesses who testified for the State or by any other witness. Their testimony was simply confined to statements that they had never seen a check or received a check drawn on the Grant Park Bank after about 1898, and that they did not know of the existence of this private bank after 1898. Every one of them admitted, on cross-examination, that E.C. Curtis and his father, or E.C. Curtis, might have been conducting a private bank known as Grant Park Bank after 1898, and that they might have accepted deposits in that bank not subject to check, and that they might *Page 579 have loaned the money so deposited with them or bought commercial paper with it.
Cass J. Hayden, of Momence, a banker connected with the Momence State and Savings Bank, testified for the defendants that he lived in Grant Park more than twenty years and was assistant cashier of the Grant Park National Bank; that E.C. Curtis was cashier and Alonzo Curtis president of the National Bank after it was organized, and that he continued with the Grant Park Trust and Savings Bank after it was organized as successor to the National Bank, about 1898, and that he began with the National Bank in 1898. He testified that shortly after the National Bank was organized there was a savings bank organized by the stockholders of the National Bank and was chartered by the State; that the Grant Park Bank continued to do business as Grant Park Bank from 1898 until about 1900, during which time it was operated by E.C. Curtis until the death of Alonzo Curtis, and Alonzo and E.C. Curtis were the owners of the bank; that the Grant Park Bank continued in operation from the organization of the National Bank, about the year 1898, until about the year 1916 or 1917, — at the time the trust company built its building and moved into it; that he knew that the Grant Park Bank accepted deposits and made loans of money, and that E.C. Curtis was the party who conducted that bank before and after the death of his father; that the savings bank was organized because the National Bank could not do that kind of business, and that it went out of business when the National Bank was succeeded by the Grant Park Trust and Savings Bank, about 1897, and became the owner of all the furniture and fixtures of the National Bank and of the lease of the building in which it was conducted; that Curtis occupied a small room in that bank building during the existence of the National Bank, and continued to do so after the organization of the State Bank, in which Curtis kept his private matters, and that Curtis also kept a book or *Page 580 books in connection with his private bank; that the savings bank also had books in which it kept its accounts, but it owned no furniture or fixtures and had no control over the building in which it transacted its business; that Curtis had no employees while running the private bank, but Miss Julia Bissett, an employee of the National Bank and afterwards of the State Bank, sometimes assisted him; that Curtis also discharged his duties as an officer of the National Bank and of the State Bank; that the savings bank did not issue certificates of deposit at all. Hayden also identified defendants' Exhibits 17 and 18, and testified that the first six lines on the back of Exhibit 18 were in the genuine handwriting of E.C. Curtis and the next three lines were in the handwriting of Miss Bissett, and that the remaining writing on that exhibit was that of E.C. Curtis; that Exhibit 17 was written by Miss Bissett, but that it bears the genuine signature of E.C. Curtis; that he has seen Curtis write hundreds of times and knows the signature to each exhibit is his true and genuine signature. He also testified that he knew that E.C. Curtis made loans and accepted deposits in the Grant Park Bank, because he helped him to make the loans; that Curtis also issued certificates of deposit; that the Grant Park Bank carried an account in the Grant Park Trust and Savings Bank and in the National Bank, and it only accepted deposits from depositors who would not deposit their money in any bank at the rate of interest paid by the Grant Park National Bank and the Grant Park Trust and Savings Bank.
Ernest B. Griffin, a witness for the defendants, connected with the Curtis Trust Company since 1916 and also a stockholder and director of the Grant Park Trust and Savings Bank, and who is connected with twelve or thirteen banks in which he is interested as a director and stockholder, in quite a number of which banks E.C. Curtis was also a stockholder, testified that he had known Curtis thirty years and had seen him write frequently. Norman Griffin, *Page 581 his brother, also a witness for the defendants, testified that he is assistant cashier of the Grant Park Trust and Savings Bank and has been since about 1908, and that he had known E.C. Curtis many years and was well acquainted with his handwriting. Both of these witnesses corroborated in every respect the witness Hayden as to the history and operation of the Grant Park Bank and who composed it from its organization up to 1917, and as to the fact that this bank was operated as a private bank from its organization to said date and conducted by E.C. Curtis. To repeat their testimony in detail would be simply to repeat the testimony of Hayden as to the existence of the bank and as to the manner in which it was conducted. They stated positively that the Grant Park Bank's deposits were not subject to check, and that it carried deposits with the Grant Park National Bank and the Grant Park Trust and Savings Bank. They also identified and testified concerning Exhibits 17 and 18 in the same manner as did Hayden, and confirmed Hayden's testimony that the Grant Park Bank only accepted deposits from depositors who would not deposit their money at the rate of interest paid by the Grant Park National Bank and its successor, that its deposits were not subject to check, that it usually loaned its money on real estate, and that they knew it did make such loans. Ernest B. Griffin further testified that he on several occasions borrowed money from the Grant Park Bank and paid seven per cent interest on the loans; that in 1903 or 1904 he borrowed $5000 of that bank for a year or more, and that in 1913 he borrowed at one time $1000 and at another time $4000, and about the same time borrowed $500 and $1000. Both witnesses testified as to others depositing money in the Grant Park Bank and that it made loans to other parties; that E.C. Curtis generally conducted his private business in a small room in the building occupied by the Grant Park National Bank and the Grant Park Trust and Savings Bank, and that he had no employees after 1908, but that *Page 582 Miss Bissett, an employee of the other banks, sometimes assisted him in drawing certificates of deposit or crediting payments of interest thereon, and that he had rented in the bank aforesaid several boxes, in which he kept his private papers.
The following witnesses testified as in this paragraph stated: Adolph Schroeder testified that he deposited money in the Grant Park Bank at four per cent interest, and that he made such deposits from 1900 to 1911 and accepted certificates of deposit of the same character as Exhibits 17 and 18; that the first certificate of deposit was for $400 and the second for $450, and that his deposits increased in amount; that the last one was for $1000, which was cashed in 1911, and for which he received a draft for $1000 on the Grant Park Trust and Savings Bank; that he was also a depositor, depositing small sums in the other two banks, for which deposits he held their pass-books, but his testimony makes it clear that he deposited in the Grant Park Bank also. Augusta Wangerin testified that she deposited money in the Grant Park Bank at four per cent interest before and after 1900, and received the same kind of certificates of deposit as shown by Exhibits 17 and 18. She is corroborated in her testimony by Hayden and Norman Griffin. Marie A. Campbell testified that she deposited $500 in the Grant Park Bank in 1897, and continued to have money in that bank until 1901; that in 1901 she deposited $2000 in that bank and received a certificate of deposit signed by E.C. Curtis; that she continued to deposit in the bank by renewals until 1914 and then drew out $1000 and the remaining $1000 in April, 1915, at which time she bought a bungalow; that she also borrowed $1000 of that bank through E.C. Curtis, which note ran for a year at six per cent, when it was paid; that in the same year she deposited $1500 in the Grant Park Bank, receiving a certificate of deposit signed by E.C. Curtis; that in April, 1917, she made a further deposit of $1500 in that bank, and carried *Page 583 the last two certificates of deposit in that bank until the last of May or first of June, 1918, at which time she drew out $1500, and in 1919 she withdrew the remaining $1500; that on the certificates of deposit she received four per cent interest all the time. L.T. Fitzgerald, an insurance agent who lived in Kankakee, in the summer of 1917 made a deposit of $200 and received a certificate of deposit for the same signed by E.C. Curtis; that he made this deposit with the expectation that he might handle some of the insurance of Curtis, but drew out the deposit about two months after it was made. Ole T. Olson testified that he lived in Springfield; that he borrowed $1200 of the Grant Park Bank; that it was paid to him by E.C. Curtis, and he re-paid it to Curtis at the Lafayette Hotel, in Kankakee; that he gave a note for the sum borrowed. At the time he testified he was an appointee of Small in the Department of Agriculture as superintendent of plant industry.
Defendants' Exhibit 17, heretofore mentioned, is in this language:
"GRANT PARK BANK No. 1436.
Grant Park, Ill., Apr. 30, 1908.
"Mrs. Jane Young has deposited in this bank eight hundred eighteen and 18-100 dollars, $818 18-100, payable to the order of herself in current funds on the return of this certificate properly endorsed. With interest at the rate of six per cent per annum. This deposit is not subject to check.
EDWARD C. CURTIS, Pt."
This certificate of deposit is endorsed as follows: "Int. paid to March 1, 1909," with similar interest endorsements for the years 1910 to 1917, both inclusive. "April 19, 1913, received on the within $500. Note paid dated March 15, 1907," with a "Paid" stamp on its face, "Feb. 16, 1920, Grant Park Trust Savings Bank, Grant Park, Ill."
Exhibit 18 is in the same form as Exhibit 17, and bears date March 4, 1905, in favor of Mrs. Jane Young, amount $3000, signed by A. Curtis Son. It is endorsed as follows: "This certificate is issued in lieu of No. 1352, which *Page 584 is supposed to be lost, and is not transferable. Int. paid to March 4, 1906." Similar interest endorsements follow for the years 1907 to 1919, both inclusive.
The above exhibits are an original certificate and a duplicate, both of which were signed by E.C. Curtis and were found by Norman Griffin among some of Curtis' papers after his death, in his desk. The evidence shows that the original of which Exhibit 18 is a duplicate was supposed to be signed in the lifetime of Alonzo Curtis. The further testimony is that these certificates of deposit were cashed after the death of Mrs. Young by her son, who lived in Iowa, and as administrator he deposited the proceeds thereof in the Grant Park Trust and Savings Bank, where they remained for about a year.
There were a number of witnesses who testified to the fact that Edward C. Curtis was a private banker during his lifetime and during the time mentioned as the existence of the Grant Park Bank, and that he was known by private bankers throughout Illinois and recognized by their association as a private banker. There is other testimony in the record that the Grant Park Bank accepted money on deposit, issued certificates of deposit for the same and loaned the money or bought commercial paper with the deposits, but the foregoing is sufficient evidence for my purpose. It could not be expected that every person who deposited money with that bank or borrowed money of it could be located and his testimony secured, as Curtis died in 1920 and private banks went out of existence two years or more before this evidence was taken. It was not claimed by the defendants that the Grant Park Bank had as extensive deposits as some larger private banks or made the loans that such private banks made. The claim is that it was a private bank. The amount of the deposits in the private bank or the amount of loans it made did not determine whether or not it was a bank. Neither was it necessary that such a *Page 585 bank have a habitat or have furniture and fixtures, as is well decided by this court and other courts of this country.
The evidence in the record does not establish to a certainty when Verne S. Curtis became a co-partner with his brother, E.C. Curtis, in the conduct of the Grant Park Bank. The evidence does show, as appears from his acts and declarations in the record, that he was a partner of E.C. Curtis in the conduct of that bank in April, 1917, and up to the death of E.C. Curtis, in 1920, and that as the sole survivor of that co-partnership he acted as the Grant Park Bank after the death of Curtis. The evidence further shows that E.C. Curtis was president and Verne S. Curtis cashier or secretary during the time they conducted the bank and the operations spoken of as transpiring during the years 1917 and 1918, and later, beginning with April, 1917.
Much has been said about the fact that Verne S. Curtis in April, 1917, when he ordered supplies for the Grant Park Bank from Marshall H. Jackson, told him that he wanted him to treat the matter in confidence, because he did not want the other local bank to know "what they were up to." There was one bank in Grant Park at that time that was not connected with the Grant Park Trust and Savings Bank, and that was the Farmers State and Savings Bank. The Curtises, perhaps, had their private reasons for not wanting one of the local banks to know they were going to operate the Grant Park Bank in loaning the funds of the State, but there is absolutely no evidence in the record that Small knew anything about how the Curtises felt about the matter or that he conducted his transactions with the Grant Park Bank in a secret manner, and under the law, as heretofore stated, this declaration of Verne S. Curtis could not be considered as evidence against Small.
There seems to be an attempt to support the decree, not on the ground that the evidence in the case shows Small to have received interest which he has not accounted for, *Page 586 but because if certain other evidence which was not produced had been produced it might have shown a liability to account. Reference is made in the opinion to the alleged destruction of certain books and papers which were in the treasurer's office during his term. There is no evidence in the record that Small ever had any of these books or papers in his possession after the expiration of his term or that he destroyed them. No witness testified to having any personal knowledge on the subject. Two or three witnesses who were in the office during the succeeding term testified that they presumed some books and papers were sent to Small after the expiration of his term of office because it had been the custom to send such books and papers to his predecessors. On this subject a witness for the State testified as follows: "I was cashier in the State treasurer's office from 1905 to 1915, when I became assistant treasurer, in which position I remained until August 1, 1922. I have no independent recollection of sending any record to the defendant Len Small at the expiration of his second term. My testimony in that regard is based only upon a custom I say prevailed with reference to the delivery of records to the predecessors of Len Small. The records so sent to the predecessors of Len Small were records kept for the benefit or use of the State treasurers. When I came in the office there was no such record. I created all of them for the purpose of handling the business as it increased. There were but three employees when I came there, now there are some twenty-five, and it is the natural course of events that made certain other memorandums or records necessary, which were added as they came along. I would say they were for the use of all employees connected with the office and the State treasurer. We had a record which carried all entries having to do with the receipt of moneys into the office of the treasurer and another record carrying entries showing all items of disbursements; and up until the time I left the office those were the only records kept *Page 587 in the office of the treasurer of Illinois which were treated as official records, and the records which were delivered or sent as a matter of custom to retiring treasurers were considered by the treasurers and myself as records wholly apart from the official records. The cash book showed the receipts and disbursements of that office. That book was never sent out or delivered to any retiring State treasurer, and as far as I know the cash books for the period of time I served in that office were, and are now, a part of the records in the office of the treasurer of the State of Illinois. That would also be true of the ledger. It was in the ledger that the entries from the cash book were posted. Those books contain a complete record of receipts where the Auditor of Public Accounts had issued his official order to receive, and on the disbursement side all items of disbursements where the auditor had actually issued his warrant. Those records were complete as far as actual receipts and disbursements of the office were concerned." One witness testified that about three months after the expiration of Small's term he saw a watchman put the tickler and the cash register in a box and nail up the box but did not see him take them out or know what was done with them. Small testifies he did not see them after the expiration of his term of office.
Upon this evidence we are asked to presume that these books and papers were sent to Small from the fact that it was the custom to send them to former treasurers. Upon the presumption of their being sent we are asked to presume that they were received by Small, which is basing a presumption upon a presumption. From this last presumption, when the documents were not produced upon the trial, we are asked to presume that they were destroyed or suppressed so that they could not be used as evidence, from which presumption we are asked to presume that if they had been produced they would have shown something detrimental to Small, and using this last presumption as a basis we are asked to presume that they showed that Small had *Page 588 received income, profits or interest for which he had not accounted, notwithstanding the fact that he testified positively that he had accounted for and paid into the treasury all the interest he had received.
In Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625, it is said: "The law is that a presumption cannot be based upon a presumption, for there is no open and visible connection between the facts out of which the first presumption arises and the fact sought to be established by the dependent presumption. (Douglass v. Mitchell, 35 Pa. St. 440; United States v.Crusell, 14 Wall. I; United States v. Ross, 2 Otto, 281.) In the case last cited it is said, in passing upon this question: 'Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact the circumstances must be proved, and not themselves presumed.' " In Rumbold v. Royal League, 206 Ill. 513, it is said: "The law never presumes the existence of a fact which must be affirmatively shown from the mere absence of facts showing the negative."
In the majority opinion it is said: "Proof of the fact that a public official having custody of public funds loaned these funds to others with a secret arrangement respecting the payment of interest and that in reporting interest collected he did not reveal the source of the payments, without more, would be sufficient to justify an order to account." This is not a correct statement of the law. There must be affirmative proof that he had not reported all the interest he had received, and the bill must be predicated upon such failure to make such specific report. The bill in this case contains no allegation of a failure to make monthly specific reports as a ground for an accounting, and a decree for an accounting cannot, therefore, be sustained on any such ground. Even if it had done so the present decree could *Page 589 not be sustained. It is a decree fixing joint liability. The Curtises were not public officials, and were not required by law to make, nor could they make, official reports of interest collected, revealing the source of the payments.
In the majority opinion it is said: "Where a treasurer or other public official has the custody of public funds and such funds earn interest, he is required by the settled law of this State to turn such interest into the public treasury as soon as it is received by him. (County of Lake v. Westerfield, 273 Ill. 124; Hughes v. People, 82 id. 78.) This is now, and has always been, the law in this State without regard to a statute on the subject." This does not state the law with exactitude. It is only in case the interest is received by him that it is his duty to account therefor. If the funds are loaned by him to others and such funds are placed at interest at a higher rate than is paid him by the borrower, he is only required to turn into the public treasury such interest as he receives. The majority opinion also says: "This liability to account for profits made on public funds is the same whether the interest or discount is paid to the officer directly as such, or whether it comes to him indirectly as a partner or stockholder in a bank where public funds are deposited. — Whitney v. Peddicord,63 Ill. 249." He is only liable to account for such share of the profits as he himself receives and not for profits made by another, even though that other be his partner.
In the Westerfield case, supra, and Hughes case, supra, the public officer had admittedly received interest which had not been turned into the public treasury, yet in each case the official was held liable only for the amount which he himself had actually received. State v. McFetridge, 20 L.R.A. 223, involved the State treasurer of Wisconsin, who had admittedly received interest on public funds from banks and which he had not paid into the State treasury. It was there held that both the deposit and the stipulation for the payment of interest were in themselves lawful, even *Page 590 though both the bank and the treasurer intended that the latter should retain the interest as his own, and that as soon as he received the interest money it belonged, with the principal, to the State, but he was not held liable for profits which the bank made on such deposit. That case contains a number of references to other cases holding public custodians liable for the interest received, and in all of them the liability was the amount actually received by the public officer. Following the same line is Rhea v. Brewster, 130 Iowa, 729, 8 Ann. Cas. 389, where the clerk of the court was held liable for the interest received by him on the money but the liability was for what he himself actually received. The same is true of Eshelby v.Board, 66 Ohio St. 71, 63 N.E. 586, with respect to a school treasurer. In that case the doctrine that the increment follows the principal was made to apply only to the interest actually received by the treasurer. In Michigan, although it was held that the deposit on interest was in itself unlawful, the county treasurer was held liable only for what interest he had actually received. (Board of Supervisors v. Veherke, 128 Mich. 202, 87 N.W. 217, 92 A.S.R. 450.) The McFetridge case was followed by holding the treasurer liable only for what he had actually received, in Adams v. Williams, (Miss.) 52 So. 865, 30 L.R.A. (n. s.) 855. In no case in the United States involving the collection of interest on public funds was an official held liable for more interest than he had actually received.
In Whitney v. Peddicord, supra, (the case cited by the majority opinion on this subject,) Smith and Peddicord were executors of the last will and testament of John Whitney, deceased, and Peddicord was a partner in a banking house with one Burrows. The executors had deposited moneys which they held as such executors in the bank of Peddicord Burrows and the moneys were used in the business of the bank. On the question of an accounting for interest on the funds used by the bank the court said: *Page 591 "It is a familiar principle that an executor or administrator who has used the trust funds to his own profit is chargeable with such profits, if they can be ascertained, or in lieu thereof, with interest on the sum used. (Rowan v. Kirkpatrick, 14 Ill. I.) Under this rule, while Smith is not liable, Peddicord should be personally charged with six per cent interest since the war, on such proportion of the average deposits with the firm of Peddicord Burrows of the funds of the estate as was used for his benefit. If he received one-half the profits of the banking house he should be charged with interest on one-half the average amount of the money of the estate kept on deposit; and the same rule should be applied if he had a different interest in the business. It would be unjust to charge him with interest for such portion of the profits on these deposits as was received by his partner, Burrows." What is said with reference to the liability of these parties applies with equal force to the liability of appellants. It would be unjust to charge Small with interest for such portion of profits on these deposits as was received by the Curtises, and it would be unjust to charge the Curtises with interest for any portion of the profits on these deposits which was received by Small. This authority cited in support of the majority opinion does not support the same but is an authority against the decree in this case, which fixes a joint liability of all the appellants for interest received by anyone for them.
The evidence does show that Small received interest on public funds, paid it into the State treasury and made report thereon, and in the matter of payment and of reporting he followed exactly the custom established by a long line of predecessors. The evidence in the record shows that each State treasurer from 1907 to 1921 made two reports of interest received, without itemizing them, and it shows that the treasurer from 1907 to 1909 received for interest on public funds $169,514.97; the treasurer from 1909 to *Page 592 1911, $90,306.42; the treasurer from 1911 to 1913, $166,221.93; the treasurer from 1913 to 1915, $180,953.92; the treasurer from 1915 to 1917, $142,614.31; Small reported as his receipts on public funds from January 8, 1917, to September 30, 1918, $306,424.33, and from September 30, 1918, to the end of his term, $143,585.79, making a total of $450,010.12 during his term, being an amount greater than the combined receipts from this source of any two of his predecessors. These reports were made to the various Governors, the books and accounts audited by the State Auditor of Public Accounts, and no complaint was made as to the correctness of the methods nor were the reports challenged in any way. The bill in this case is not based on any failure to file an itemized account of interest received on public funds. The decree shows upon its face that it is not based on any such failure, and, being a decree fixing a joint liability, it could not be based upon any such failure.
Small has held many positions of responsibility and trust. He has been a supervisor, clerk of the circuit court, trustee of a State hospital, State senator, State treasurer for two terms, assistant treasurer of the United States, and has been twice elected Governor of the State of Illinois, the latter time being after the commencement of this suit. These facts are cited, not that his case should receive by reason thereof any greater consideration than that accorded to the case of the humblest citizen of the State, but that in the consideration of this case the same rules might be applied. He testified as a witness in this case. It has always been the rule that when a man is called upon to give evidence, his business, occupation, social position in life, the positions of trust, honor and responsibility which he has held, may be shown, so that in considering his testimony the court and jury may know his situation in life and the repute in which he has been held, on the theory that a man of substance, who has enjoyed the trust and esteem of his fellow-citizens, is less liable to commit perjury than one less fortunately *Page 593 situated. He testified, positively and unequivocally, that he had not entered into an arrangement with the Curtises to receive money, income, discount or profits from the public funds for his own gain; that he had not received any income, profits or discounts therefrom for his private gain; that from time to time he had received interest on the public funds turned over to the Curtises in the same manner and at the same rate that he had received interest on the State funds from all the other banks throughout the State, and that he had accounted for the entire amount so received as a part of the $450,010.12 accounted for by him. He is not contradicted in his testimony by any witness, document or exhibit. His reputation for truthfulness and honesty is not impeached. Under these circumstances we have no right to disregard his testimony but must accept it. On this subject the law is thus laid down by Mr. Justice Caton in Robertson v. Dodge, 28 Ill. 161: "The only question would seem to be, Was the jury justified in disregarding the testimony of this witness? He was not impeached in the least in any way, so far as this record shows. Indeed, there is no intimation that he is not a truthful man. Can a jury, from mere caprice, entirely disregard the testimony of a witness unimpeached in any way? This they cannot lawfully do, although they are the judges of the credibility of witnesses. They must judge of that fact, as of any other in the case, from evidence." On the same subject, in Chicago and AltonRailroad Co. v. Gretzner, 46 Ill. 75, Mr. Justice Breese said: "This court has said that a jury cannot willfully or from mere caprice disregard the testimony of an unimpeached witness; that while they may judge of the credibility of a witness they must exercise their judgment whilst doing so, and not their will, merely. Robertson v. Dodge, 28 Ill. 161." On the same subject, in Larson v. Glos, 235 Ill. 584, Mr. Justice Cartwright said: "There is nothing in this record which would justify a jury in discrediting and rejecting the testimony of Timke. It is *Page 594 true that a court or jury is not bound to believe a witness when, from all the other evidence or from the inherent improbability or contradictions in the testimony, the court or jury is satisfied of its falsity; (Podolski v. Stone, 186 Ill. 540; ) but a jury cannot willfully or from mere caprice disregard the testimony of an unimpeached witness. (Chicago andAlton Railroad Co. v. Gretzner, 46 Ill. 75.) Where the testimony of a witness is uncontradicted, either by positive testimony or by circumstances, either intrinsic or extrinsic, and the witness is not impeached, the testimony cannot be rejected even by a jury. The witness in this case was not contradicted or impeached, and the facts testified to were not improbable in themselves or in connection with any circumstances in the case."
The same rules govern a judge in the trial of a law case in which a jury is waived, and the same rules govern a chancellor in passing upon the facts in a case in chancery. Neither the judge nor the chancellor in such case can from mere caprice disregard the testimony of a witness upon any material matter who is uncontradicted by positive evidence or by circumstances and who is not impeached; and particularly is this so where the evidence of the witness is not unreasonable or improbable or is corroborated by other credible evidence or circumstances. Such has always been the rule announced by this court, and the rule is supported by the weight of authority, if not universally so.
Not only is Small not contradicted or impeached on the subject, but he is corroborated by other evidence not mentioned in the majority opinion. Luehrs, who had charge of the interest account in the treasurer's office, testified: "The amount collected by myself included all other accounts — interest-producing accounts. There was only one left that interest could be derived from. That would be the safe account. The gross amount in the form of interest derived from the deposit of public funds for the last *Page 595 three months of the term of defendant Small was $143,585.79. I cannot state the total amount in the treasury the last three months of that term. My best recollection would be that the daily average balance in the treasury of Illinois for those months would be eighteen to twenty-two million dollars. The average daily balance would be about $19,000,000 during that period. That is my best recollection. Interest on that sum at the rate of two per cent for the period of three months would be $95,000." So that, according to his testimony, $48,000 of the $143,585.79 consisted of interest on the Curtis or Grant Park Bank loans. In speaking of the $306,424.33 payment he says: "I cannot form a judgment as to how much more it was; that is, I cannot form a judgment as to how much more interest was paid in that was derived from the vault account. My judgment is that it came from the safe account. I have no positive knowledge, but I am positive that the amount of interest paid in exceeded the amount that was paid in on account of the vault account." While this witness can not give the amount of interest on the safe or Grant Park Bank account which was paid into the treasury, he does give the basis upon which interest was charged to all the banks, — i. e., upon their daily balances. The evidence in this case discloses what the daily balances were, not only on the safe account but upon all the other interest-bearing accounts, and when interest is figured on such daily balances it is seen that the amount paid into the State treasury covers the amount due from all interest-bearing accounts, including the safe account.
For these reasons, and for the reasons assigned in the dissenting opinion of Mr. Justice Duncan, I am compelled to dissent from the conclusion reached by the majority of the court. *Page 596