Manitowoc County v. Truman

Cassoday, C. J. The questions presented turn upon the construction to be given to the bond set forth in the foregoing statement, and the statute pursuant to which it was given, and which reads as follows: “ The county board of every county may annually at their first meeting, or within the month of June, and as often thereafter as they shall determine, select some bank, banks, or banking association, with which all funds then in the county treasury, or which shall thereafter be received by the treasurer of such county, shall be deposited; provided, however, that such bank, banks, or banking association shall, before receiving such funds, give security in the same manner as is now required of the treasurer of such county, for the safe keeping and proper disbursement of such funds, which security shall be approved — 11 — by the county board. Such county board shall, before or after so selecting depositaries, contract with them for the payment to such county of such interest upon the funds deposited as they may mutually agree upon¡ and the cov/nty board may, at any time, when in their opinion the safety or interest of the county requires it, direct all sums so deposited by the county treasu/rer to be paid into the coxmty treasury, or to such other bank or banks as they may select. This act shall not apply to counties in which the total assessed valuation, as determined by the state board of assessment for the year 1884, is less than six millions of dollars.” S. & B. Ann. Stats, sec. 693 (Laws of 1885, ch. 87). It is manifest that under this section the plaintiff county was not absolutely bound to select some bank as such depositary, but it was left optional with the county board to make such selection or not, as it might in its wisdom determine. But it is contended that when such power is exercised it can only be for a single year or until the next meeting of the board; that it must make such selection “ annually,” and at each such annual selection make a new contract and obtain a new bond, even when the same bank is continued as such depositary. This would, as we think, be a very strained construction, and one not warranted by the language employed. True, the county board “ may cm-ntKtlly at their first meeting, or within the month of June, and as often thereafter as they shall determine, select some bank,” etc. The statute requires the annual meeting of the county board to be held in November of each ye ax’. S. & B. Ann. Stats, sec. 664. This being so, it is quite manifest that by the language quoted the legislature authorized such selection by the county board at their first annual meeting in November or in June, and as often thereafter as they should determine. The object of the statute was to authorize the county board of every county coming within its provisions to temporarily loan the funds of the county to a bank to be — 12 — designated, for the purpose of obtaining interest thereon, upon such bank giving security in the same manner required of county treasurers, and to that extent relieve the county treasurer of liability. No purpose could be served by arbitrarily requiring a renewal of such selection, contract, and bond at every annual meeting of the board, or at the meeting thereof in June, nor at any other particular time, and hence no such requirement was made. That there was no intention that such depositary should arbitrarily continue for just a year, or any other fixed period, is manifest from the fact that such county board was expressly authorized by the same statute to withdraw such funds from such depositary “ at any time when in thevr opinion the safety or interest of the county required it,” and to direct the same “ to be paid into the county treasury, or to such other bank or banks as they ” might select. “ Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in the case of necessity or the absolute intractability of the language used.” Salmon v. Duneombe, L. R. 11 App. Cas, 627, Even penal statutes are not to be construed so strictly as to defeat the obvious intention of the legislature. IT. S. v. WiMberger, 5 Wheat. 76. In view of the contents of the section and its purpose as therein expressed, we cannot hold that the word “ annually,” as used in the section, should be construed as a mandatory requirement that a new selection of a depositary and a new contract with the same must be made, and a new bond must be taken, at the expiration of every year. It is undoubtedly true that the liability of sureties cannot be extended by doubtful construction or implication. If they are held liable in this case, it is because there has been a breach of their express contract. The bond upon which the action is based purports to be given pursuant to the statute. By the express terms of the bond the banking com — 13 — pany was to pay three per cent, on average monthly balances, and four per cent, on all funds remaining on deposit under the contract for more than one year from the date of such deposit. As such deposits were necessarily to be made from time to time after the giving of the bond, it was obviously in the contemplation of all parties to the bond that the same should remain in force during the continuance of such deposits; hence, longer than a year. The same is true as to the resolution adopted by the county board November 26, 1890, and the agreement made December 30, 1890. Besides, the agreement recites the adoption of the resolution, and the bond recites the making of the agreement. But neither the resolution nor the agreement nor the bond required any such deposit to remain with the banking company for a year or any specific period. On the contrary, each and every of such deposits, by the express language of the bond as well as the resolution and the agreement, was subject to be withdrawn at any time by order of the county board. Such right of withdrawal of such deposits at any time by the county board, so provided for in the bond, contract, and resolution, is in strict conformity to the section of the statute quoted. True, the statute does not expressly authorize the agreement for interest at the rate of three per cent, only on average monthly balances, and four per cent, only on such moneys as remained on- deposit for one year; but the section of the statute quoted does expressly provide that “ such county board shall, before or after so selecting depositaries, contract with them for the payment to such county of such interest upon the funds deposited as they may mutually agree upon.” Obviously, no bank would agree to pay a specific rate of interest on any deposit, without any regard to the length of time the money was so to remain on deposit. It would seem that the right to so contract for the payment implies the right to fix the terms of the. contract, so long as it is not repugnant to any of the provisions of — 14 — that section, nor to any statute, nor to any principle .of public policy. The authorities go 'further, and hold, in effect, that an obligation entered into voluntarily and for a sufficient consideration, unless it contravenes the policy of the law or is repugnant to some statute, is valid at common law, notwithstanding the attempt may have been to execute it pursuant to a statute with the terms of which it does not strictly comply. Barnes v. Brookman, 107 Ill. 318; Sooy v. State, 38 N. J. Law, 324; Ordinary v. Heishon, 42 U. J. Law, 15; U. S. v. Linn, 15 Pet. 311; N. S. v. Hodson, 10 Wall. 395. As indicated, the duration of the contract between the county and the banking company was unfixed, aiid was liable to be terminated by order of the- county board at any time. So, it would seem the sureties were at liberty to terminate the agreement, so far as they were concerned, at any time, on giving notice. Reilly v. Bodge, 131 N. Y. 153; Emery v. Blatz, 94 N. Y. 408; Offord v. Davies, 104 Eng. O. L. 748; Hyland v. Habich, 150 Mass. 112. It will be observed that the statute nowhere prescribes the form of the bond, otherwise than to require the bank to “ give security in the same manner as ” the county treasurer is required, “ .for the safe keeping and proper disbursement of such funds,” and which security must be approved by the county board. The statute prescribes a form for the bond of the county treasurer. S. & B. Ann. Stats, sec. 710. But the form thus prescribed contains several things inappropriate to the security to be given by such bank. The bond in suit was duly approved by the county board, and we are constrained to hold that it was given substantially in the “same manner” as thus prescribed, and that it was in all respects within the general scope and purpose of the statute, and hence is valid. It is hardly necessary to add that the action of the county board adopting the report of its committee, to the effect — 15 — that said, banking company had agreed to continue the arrangement in regard to the interest on monthly balances, as agreed upon, for the next -succeeding year, was nothing more than a determination not to withdraw the funds from the bank nor to ask for any different agreement as to interest or security. For reasons already given, we do not think it operated as an extension or renewal of the contract, so as to discharge the sureties. By the Oourt.— The judgment of the circuit court is affirmed.