State v. Keim , 8 Neb. 63 ( 1878 )

Cobb, J.

The state, by the attorney general and other attorneys, brought this action against the defendants for two thousand dollars, which it is alleged in the petition it deposited with the defendants, who were copartners in the business of banking at the city of Falls City, in the state of Nebraska, under the style and firm name of C. L. Keim & Co., for safe keeping, to be delivered to the -said plaintiff on demand. That the same was afterwards demanded and payment thereof refused, etc.

Keim, one of the defendants, demurred to the petir tion, and assigned, with other grounds of demurrer, that the said petition does not state facts sufficient to constitute a cause of action in favor of said plaintiff and against the said defendant. The district court sustained the demurrer and rendered judgment for the defendant. No service of process was had on the defendant Grable.

By article TV of the General Statutes, p. 1016, it is made the duty of the state treasurer to reside and keep Ms office at the seat of government; to receive and keep all moneys of the state, not expressly required to be received and kept by some other person. By section 124 of chapter LWDT, of the same statutes, p. 749, all investments or loans of the state money are prohibited. The depositing of the $2,000 in the bank of the defendants was a loan in its legal effect. Commercial Bank of Albany v. Hughes, 17 Wend., 100. Southern Loan Co. v. Morris, 2 Barr, 175.

The state could not have made this loan in point of fact without the intervention of some officer or agent. No officer or agent of the state could make such loan or deposit without a violation of the law above referred to, which violation would render such officer or agent both personally and officially liable to the state for the money so loaned or deposited, wMle no such unauthorized act would bind the state. The reverse of this proposition must be equally true, that the state would thereby acquire no right of action except as against its officer or agent on his official bond, or for a violation of law, or in a proper case against parties who might be guilty of a conspiracy with such officer or agent to unlawfully obtain possession of the public money by means of such loan or deposit.

It is true that although such loaning or depositing of the public money was unauthorized and contrary to the spirit and policy of our government, yet after it was done in point of fact it could be ratified by the state. But such ratification could, under our constitution, only be by public law, and this court will take judicial notice of any such law or the absence thereof.

The transaction set forth in the plaintiff's petition not being originally binding on the state and not having been assumed or ratified by it, constitutes no cause of action on the part of the state against the defendants.

The judgment of the district court is affirmed.

Judgment aeeirmed.