Spratley v. Board of Commissioners

The opinion of the court was delivered by Johnston, J. : The compensation of a county treasurer is determined by the number of inhabitants in the county for which he is elected, and as Leavenworth county has a population of over 25,000, the treasurer of that county is entitled to a salary of $4,000. This is the extreme limit of compensation that he can claim or retain for any official responsibility which he may assume, and for every official duty which he may perform. It is, as the statute says, “ In full for all services rendered by said treasurer or his deputies,” and he is required to report to the board of county commissioners all fees which he may receive for official services performed at the request of others, and the amount [277] of them is to be deducted from the salary allowed. (Gen. Stat. 1889., ¶ ¶ 1716, 1717.) In another section it is made a felony for the treasurer to use or permit others to use “any public money coming into his possession or under his control from any source whatever by virtue of his official position.” (Gen. Stat. 1889, ¶ 1715.) It is within the power of the legislature to fix the compensation of public officers for official service, and to make it unlawful for county treasurers to receive or retain any other or greater reward from any source whatever for the performance of such services. The statutory provisions relating to such officers in effect preclude the treasurer from receiving any compensation or from taking or retaining any reward other than is expressly allowed as salary. The payment to and the retention by a public officer of any private reward, or any compensation other than as expressly provided by law, is contrary to public policy, subversive of good morals, and inconsistent with the pure administration of a public trust. The condemnation moneys were deposited with Spratley as county treasurer, and under the statute it was his official duty to hold and distribute them. We are very clear, therefore, that he is in no sense entitled to take or retain any additional compensation for the discharge of that duty. Can the county recover the interest on the condem-- • nation moneys that were placed by him in the public depositories ? It is insisted on behalf of Spratley that no one other than the owners of these moneys can rightfully claim the interest which accrues on the samé, and that they are not public moneys within the meaning of the statute governing deposits. It provides that the “treasurer shall deposit daily all public money in [278] some responsible bank, to be designated by the board of county commissioners, in the name of such treasurer as such officer, which bank shall pay such interest on average balances as may be agreed upon by the board of county commissioners ; and such bank shall credit the same monthly to the account of said treasurer ; and before making such deposits, the said board shall take from such bank a good and sufficient bond, in a sum equal to the largest approximate amount that may be deposited at any one time, conditioned that such deposit shall be promptly paid on the check or draft of the treasurer of said county; and such bank shall, on the first Monday of each month, file with the county clerk a statement of the amount of money on hand during the previous month, and the amount of interest accrued thereon to said date.” (Gen. Stat. 1889, ¶1716.) It is true, as contended, that the funds deposited do not belong to the public. If the condemnation proceedings are regular, the money deposited belongs to the railroad company until the right of way passes to the company. If no appeal is taken from the award of the condemnation commissioners, the right of way passes to the railroad company, and the right to the money passes to the landowner. (Blackshire v. A. T. & S. F. Rld. Co., 13 Kan. 514; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 id. 453.) It does not appear that appeals were taken by any of the landowners, and if none were taken until the time for appeals expired, the deposits became the property of the landowners. Although-the condemnation money was not owned by the public, it nevertheless was public money within the meaning of the statute requiring "the placing of funds in the public depositories. It is money paid as the law requires in a public proceeding to secure the accomplishment of a public purpose. It is placed in the custody of a public officer, who keeps [279] the same at the public expense. It is obtained in the exercise of the sovereign power of eminent domain, ■which can only be used for public purposes. The sovereign power being delegated to the railroad company makes it a public agency to secure the building of a highway to carry out a public use. An important and essential step in this public proceeding is the payment or deposit of condemnation money, and the legislature, which has full power in the premises, has provided that the amounts awarded as compensation to landowners by the public tribunal provided for that pur■pose shall be deposited with the county treasurer. He holds it as a public ‘officer rather than as the agent of the railroad companies or the landowners. The awards deposited are not loaned to the county, nor does the county become responsible to the owners of those funds for either principal or interest. Neither the railroad companies nor the landowners are entitled to claim from the treasurer any more than the amounts deposited. There is no privity between those owning the fund and the county which would entitle them to anything for the use of the money, no more than the owners of redemption money could claim interest for the use of money paid to redeem land from a sale for taxes. If the treasurer should fail to pay the money upon demand to one entitled to it, a liability for interest might arise against him, but so long as the money remains in the county treasury unclaimed no interest can rightfully be demanded by the owner. His only concern is that the money deposited shall be safely kept and properly distributed. The facilities for the safe-keeping of the money are provided by the county and at its expense. The county board designates the bank in which the money shall be placed, fixes the [280] rate of interest which shall be paid on the average balances that may be deposited, and the bond of the depository is taken by and in the name of the county commissioners. The public depository is a part of the financial system of the county, the main purpose of which is the protection and safety of the funds placed in the hands of the county treasurer as the law provides. The payment of interest is only an incident to the transaction, and as the county bears all the burden and cost of providing the facilities for the safe keeping of the money, it justified the legislature in authorizing the collection of interest upon the funds placed in the depository. Interest can only be collected where it is specifically authorized by law. There is no statutory provision authorizing the collection of the interest agreed to be paid by a public depository upon condemnation monóy, redemption money, nor of any other public money lawfully remaining in the county treasury. The statute does provide, however, that the county may'arrange for the deposit of all such money in some responsible bank, and may agree with the bank upon the interest which shall be paid, and from the language employed we think the legislature clearly contemplated that the interest accruing on such funds should belong to the county. The judgment of the district court will be affirmed. All the Justices concurring.