Smith v. Board of Chosen Freeholders

The opinion of the court was delivered by Magie, J. This appeal is from an order overruling a demurrer to re-’ spondent’s bill of complaint. One cause of demurrer assigned by appellant was that, upo» the facts alleged in the bill, respondent had a complete and adequate remedy at law. The bill was filed by the board of chosen freeholders of Essex county, the respondent, against appellant and the Newark City National Bank. By its statements the following facts appear- and are admitted by the demurrer: The Newark City National Bank was a bank of discount and deposit. Respondent had kept an account in the bank and deposited therein part of the county money for the purpose of drawing against the same by check. The deposits were made in the name of the county collector as such, and were- drawn, under-direction of respondent, only by checks signed by the county collector for the time being and countersigned by the auditor of the county. Appellant had been county collector for some years and up to-May 24th, 1890, when Thomas J. Regan, previously elected,. [636] ■gave the security required by law and became county collector in place of appellant. On July 26th, 1890, there stood to respondent’s credit on the books of the bank, in the name of T Joseph. M. Smith, Collector,” $18,804.91, and on that day, •pursuant to respondent’s directions, a check for that sum was ■drawn on the bank, signed by Regan, the collector, and countersigned by the auditor and duly presented for payment. The bank refused payment on the ground that the check was not ■signed by appellant. ■ The prayer'of the bilL was for a decree that the bank'should ■transfer and pay to respondent the sum above named, with inter•est from the day of the refusal to pay the check. ■ The determination below was put upon the ground that the facts stated in the bill- showed appellant to have been the depositor of the funds in question and the creditor of the bank in respect to the balance on deposit, and respondent to have a merely equitable interest therein capable of being asserted only in an equitable proceeding. The argument here takes the same view of the facts, and contends that, if appellant was the depositor of these funds, no action at law would lie for the balance by respondent, although, ■upon the facts, the bank must have known that the deposits were •of public money, belonging to respondent, and were deposited for it. I deem it unnecessary to follow this line of argument, for I find myself obliged to conclude that upon the facts stated in the bill, no relation of debtor and creditor was established between •■appellant and the bank. It is expressly stated that the deposits, out of which the fund in question came, were made, not by appellant, but by the board of chosen freeholders, the respondent. By such a deposit the bank became the debtor of the respondent, and the inference ■that such was the relation between the two corporations is not at all modified by the fact that the bank chose to place the deposits fo the credit of the county collector as such, for upon the- statements of the bill it may be inferred that such conduct was part ■of the contract of deposit. Moreover, the directions given by [637] respondent as to the mode in which drafts on the bank for suck deposits should be drawn, clearly indicates that the moneys-deposited were not to be controlled or drawn by the county collector, in whose name, as such, they might be entered. Eor the-directions of respondent were that deposits were to be withdrawn only by checks of the collector for the time being, countersigned by the auditor, and the collector, for the time being,, might not be the collector whose name stood at the head of the account, but a successor in office, as in the case before us. Such directions must be presumed, from the statements, to have been acquiesced in by the bank, and also to have made part of the contract of deposit. Under these statements, I conceive it impossible to discover-any contract between the bank and appellant. The latter could not withdraw the deposit, nor give orders upon it, without the-intervention of another and independent county official, and' when he ceased to be collector, as he admits he has by the-demurrer, he lost the power to sign checks. Under such circumstances, he could have brought no action at law or otherwise for the balance in question. On the contrary, upon proof before a- jury in a court of law of the facts stated in the bill, in an action by respondent against the bank, I think it would have been the duty of the court to direct a verdict in favor of respondent. Such an action would' have been an appropriate and complete remedy for respondent. I háve reached this conclusion with great reluctance. Upon-the admitted facts, the moneys of the public are withheld from the municipal corporation charged with its control,, by a private-corporation, without any apparent excuse. Whether it may justify its course or not might be decided in this case, and with no more injury to appellant than his liability to costs. But the line of division between legal and equitable remedies-is fixed in. this state by a long course of precedents, and even legislative-authority is forbidden to intermingle these remedies by the constitutional prohibition against interference with the ancient jurisdiction of the' courts. When such an objection, as we-have been [638] considering is advanced and established, we are bound to give effect to it. The result is that respondent, on its own statements, has an adequate and complete remedy at law, and may not, therefore, maintain this bill against appellant. I shall vote to reverse the decree below, and for a decree dismissing the bill as against appellant. For reversal — The Chief-Justice, Dixon, Mague, Reed, Scudder, Yan Syckel, Brown, Clement, Whitaker — 9. For affirmance — Depue, Knapp, Smith — 3.