Territory of New Mexico ex rel. City of Albuquerque v. Matson

OPINION OP THE COURT. WRIGHT, J. 1 The claims of the respondent that the relator, the city of Albuquerque, is not the party beneficially interested within the meaning of Section 2762, C. L. 1897, are negatived by the facts stated in the record. It there appears that the city was the owner of a considerable sum of money, more than one hundred and seventy-five thousand dollars, and presumably about two hundred and fifty thousand dollars, in the hands of its treasurer, and that if it should be deposited in the bank designated by ordinance, the city would receive interest for it at the rate of three or four per cent. That certainly creates a beneficial interest in the city to have the deposit made. 2 2. The question whether under Section 2424-, C. L. 1897, a city had the right to designate a depository of its money in the hands of its treasurer, turns on the meaning of the word "custody,” as used in the statute. The appellee claims that the provision: "He may be required to keep all moneys in his hands belonging to the corporation in such place of deposit as may be designated by ordinance,” is contradicted and rendered nugatory by the words immediately following: “Provided, however, no such ordinance shall be passed by which the custody of such money shall be taken from the treasurer.” It should be borne in mind that the money is all the time the property of the city, and not of the treasurer, that his duty is to receive it for the city and with it pay claims against the city which have been duly approved. Everything else is, or should be, subsidiary to this main object. In that connection, the word "custody” must mean immediate charge and control under the law, and not the final absolute control of ownership. Suppose a person to be carrying on a business through a manager, and that he directs him to deposit all the money he receives in a certain bank in his own name as manager, and subject only to his checks as manager — could it be said with any show of reason that the money is not in his custody because he did not select the bank of deposit? And is a prisoner any less in the custody of the jailer because he holds him in a jail provided by the county and designated by law as the place of confinement for such prisoner ? If, by the ordinance in question, the city had, for instance, required the treasurer to deposit in the joint names of himself and some other officer of the city, and that payments from the desposit should be made only by checks signed by both such depositors, that, obviously, would have been calculated to deprive him of the custody of the. money. But the mere designation of the bank in which he shall deposit, in his own name, and subject only to his own checks, as treasurer, without in the least restricting his right to pay out the money according to law, is not depriving him of the custody of the money. Roland v. Commonwealth, 82 Pa. 306, 319, 22 Am. Rep. 758; Klemmier v. Mt. Penn Gravity R. Co., 163 Pa. 521, 30 Atl. 274; Commonwealth v. Valsalka, 181 Pa. 17, 37 Atl. 405, 409; People v. Gibler, 78 Ill. App. 193. We conclude, then, that under the law, as it was in the compilation of 1897, cities did have the right to designate, by ordinance, the banks in which their treasurers should deposit the city funds received by them. 3 4 3. The city council having the right under Section 2424 of the Compiled Laws to designate by ordinance the banks in which their treasurers should deposit the city funds received by them, we must now determine whether they have since been deprived of that right by later legislation. If this right has been taken away from the city council, it is by Section 3, Chapter 122, of the Session Laws of 1909. We quote the two acts in full: “Sec. 2424.-He may be required to keep all moneys in Ms hands belonging to the corporation in such place of deposit as may be designated by ordinance: Provided, however, no such ordinance shall be passed, by which the custody of such money shall be taken from the treasury. The treasurer shall keep all moneys belonging to the corporation'in Ms hands, separate and distinct from his own moneys, and he is hereby expressly prohibited from using, either directly or indirectly, the corporation money or warrants in Ms custody' and keeping, for his own use or benefit, or that of any other person or persons whomsoever, x x.” “Chapter 122, An Act to provide for the furnishing of proper bonds by territorial, county and municipal officers, and for other purposes. Approved March 18, 1909.” “Sec. 3. x x x All county and municipal treasurers are hereby required to designate one or-more banks authorized to do business under the laws of the Territory of New Mexico, or under the laws of the United States, as a depository, or depositories, for the deposit and safe, keeping of all funds coming into their hands as such treasurer. And upon the deposit by the treasurer in such depository of funds coming into their hands as such treasurers, they shall be absolved from any liability upon their official bonds for any loss of such moneys arising out of the failure of such depository to repay said funds: Provided, That no moneys shall be deposited with any such depository until it shall have executed and delivered a good and sufficient bond in an amount equal to the amount of the bond required to be given by such treasurers under' this act,, equal to the proportionate amount of such moneys which said depository is to receive under its said designation, which said bond shall run to the Territory of New Mexico, and shall be approved as to the form and sufficiency by the judge of tire district court of the district within which said treasurer resides and conditioned that such depository will faithfully perform all of its duties as such depository and will, upon demand of such treasurer, pay over all moneys deposited with it. The name or names of the depositories designated by the county treasurers shall be by said treasurers immediately certified to the traveling auditor of the Territory.” While it is undoubtedly true that the title of Chapter 122 and the other provisions of the act indicate that the primary object of the act was to relieve municipal and county treasurers from the exactions of the trust and surety companies, we have no constitutional prohibition against including more than one subject in the same legislative act. Chapter 122, Session Laws of 1999, does not specifically repeal Section 24-24, nor does the use, in the repealing clause, of the words, “all acts and parts of acts in conflict herewith,” add anything tó the repealing effect of the later legislation. Can the two law;s: Section 24-24, of the Compiled Laws, and Section 3, of Chapter 122, of the Session Laws of 1909, be read together so that both laws may stand and be given their full effect? Repeals by implication are not favored, and it is the duty of the courts so to construe the acts, if possible, that both shall be operative. Lewis Sutherland on Stat. Cons., Sec. 247. But where two statutes on the same subject are manifestly and totally repugnant and contradictory in their provisions, the latter statute, to the extent of the repugnancy and contradiction operates as a repeal of the former. McCool v. Smith, 1 Black 459; Territory v. Digneo, 15 N. M. 157; Sandoval v. County Commrs., 13 N. M. 543; Baca v. Bernalillo County, 10 N. M. 438. Under the provisions of Section 2424:, cited supra, the city council, by ordinance, may designate a depository or depositories, and, in event they do so designate a depository or depositories, they may require the treasurer to keep all the moneys in his hands belonging to the corporation in such place or places of deposit. By the provisions of Section 3, Chapter 122, of the Laws of 1909, all county and municipal treasurers “are hereby required to designate one or more banks, etc. xxxxx Provided, that no moneys shall be deposited with any such depository until it shall have executed and delivered a good and sufficient bond,” etc. We think that a mere reading of the two provisions clearly shows the legislative intent to place the designation of his depository wholly within the control of the municipal or county treasurer, as the case may be. Under Section 2424, cited supra, the action of the city council is optional. Under Section 3, Chapter 122, Laws of 1909, the action of the treasurer is made 'mandatory- and he has no option whatsoever. While we are of the opinion that the language of tha later act is so plain in its requirement that the treasurer is required to designate the depository for county and municipal funds as to leave no room for speculation as to the legislative intent, the fact that Section 2424 makes no provision whatever for the giving of a depository bond, thereby leaving the matter wholly within the control of the city council, while Section 3, of Chapter 122, Session Laws of 1909, specifically requires that a bond be given, and that same shall be approved as to form and _sufficiency by the Judge of the District Court, indicates still more forcibly the legislative intent to place the power to designate county and municipal depositories in the hands of the county or municipal treasurer. While we must admit that the later act places a. power, in the hands of the treasurer that may be subject to grave abuses, and that Section 2424 is more in harmiony with the entire scheme of municipal government, such considerations can have no weight with the courts where the terms of the later act are so manifestly and totally repugnant to the earlier act that by no reasonable rule of construction could the two acts be read together so as to give effect to both laws. Counsel for appellant urges that the omission of the word, “city,” in the third section of Chapter 122, of the Session Laws of 1909, when in the first section of the act the words, “county, city or municipality” occur twice, indicates a distinction in the legislative mind between the words, “city” and “municipality.” While it is true, that there is a presumption that the meaning of a' word repeatedly used in a statute is the same throughout, (Pitte v. Shipley, 46 Cal. 161), we think that the title of the act itself, wherein the words, “territorial, county and municipal officers” are used, takén together with our statutory definition of the words, “municipal corporations,” Sec. 2452, C. L. 1897, clearly precludes any such distinction in the third section of Chapter 122, of the Laws of 1909. We must, therefore, hold that Chapter 122, of the Session Laws of 1909, operates to repeal Sec. 2424 of the Compiled Laws of 1897. The judgment of the lower court is affirmed.