State ex rel. v. Siemens ( 1913 )

Mr. Justice McNary

delivered the opinion of the court.

The act under consideration was passed by the House of Representatives, February 14, 1913, by the Senate the twenty-fifth day of the month, received by the executive department on February 27th and filed with the Secretary of State on the same day. By reason of matters purely political the legislature did not adjourn until March 2d, and for that account the act .did not become effective until Tuesday following the first Monday of June, 1913, which was the 3d day of the month.

Those provisions of the act pertinent to an understanding of the statute recount that the county treasurer of the several counties of the state shall, on the first Monday in June of each year, designate such banks and trust companies within the respective counties as have become eligible county depositaries, for the purpose of receiving on deposit funds of said county. The applicants must qualify in this manner: They shall, on or before the first Monday in June of each year, file applications in writing with the county treasurer, accompanied by a sworn statement of their financial condition. The county treasurer shall pass upon the same, and shall stamp upon the application either the word “Approved” or “Rejected,” append his signature, and submit the same to the district attorney, together with all securities offered for protection of the county funds, who shall, upon receipt thereof, and after examination, advise the county treasurer as to their legality. No securities shall be approved, unless their market value shall equal the amounts of deposits applied for by any bank. The statute further provides that the county treasurer shall deposit, and at all times keep on deposit in the county depositaries, all of the moneys of the county coming into his hands, and which funds shall be deposited in the depositaries in proportion that the capital and surplus of the depositaries bear to the total public funds; that such deposits shall be subject to payment when demanded by the county treasurer, and the depositaries shall be required to pay the county for the privilege of holding the funds, interest at the rate of 2 per cent per annum on the daily average deposits.

We believe there are but two questions to be considered: (1) Does the writ contain facts sufficient to warrant plaintiff relief? (2) Is the county treasurer privileged to exercise absolute discretion in refusing the application of a prospective depositary?

On the surface of this proceeding it is obvious the statute did not become vitalized until a day subsequent to the time specified in the act for the selection of depositaries, and, on account thereof, it is argued defendant could designate no depositaries until the intervention of a year; that is, until the first Monday in June, 1914.

1, 2. These conditions suggest a careful analysis of the statute. It will not be denied the great fundamental rule in construing legislative enactments is to ascertain and make efficacious the intention of the lawmaking body, keeping in mind the intention as expressed in the statute; and, when that legislative will is ascertained, no other judicial duty need be performed than to declare such intention. Confessedly, the statute under consideration is remedial in character, and that the words therein are to be construed beneficially, so as to promote the remedy contemplated by the act.

3. Another formula of statutory construction is that mandatory provision of a statute must unfailingly be followed, while directory provisions need not necessarily be followed in the precise manner indicated in the law. If the subject matter and language of the act be examined in the light of these principles, an interpretation both rational and wholesome will appear. That it was the manifest intention of the legislature to have tiñe act vital on the first Monday of June in the year of its passage is apparent from the early course the enactment took through the legislature. That the first Monday of June expired one day earlier than the maturity of the statute was a political contingency not anticipated by the framers of the act or the law-making body. That the statute is remedial in its nature plainly appears from a casual reading of the enactment.

4. However a graver question arises when we take up the consideration whether the particular provision in thought is to be regarded as directory or mandatory. We think the true rule is expressed in the following language: ‘ ‘ When the particular provision of the statute relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or where the directions of the statute are given with a view to the proper, orderly and prompt conduct of business merely, the provision may generally be regarded as directory”: Hurford v. City of Omaha, 4 Neb. 350. To the same effect we cite Sedgwick, Constitutional Law, p. 372; 36 Cyc. 1158. In People v. Lake County, 33 Cal. 487, a case of recognized similarity, the Supreme Court, speaking through Mr. Justice Bhodes, said: “When a statute specifies the time at or within which an act is to be done, it is usually held to be directory, unless time is of the essence of the thing to be done, or the language of the act contains negative words, or shows that the designation of the time was intended as a limitation of power, authority, or right.”

5. In the determination of the query whether defendant should designate county depositaries regardless, of the fact the la.w became effective a unit of time after the date specified in the statute, significance must be given to the nature of the official act; that is, whether the time prescribed in the enactment is intended as a limitation of time in which official duty must be performed, or whether the designated time was indicated as a convenient period, and merely with a view to the proper, orderly and prompt administration of a public duty. The act before us for construction has fixed the first Monday in June of each year as the day the treasurers of the respective counties of the state shall designate banks or trust companies that shall become depositaries for county funds. There is nothing in the nature of the duty indicating it might not be as effectually exercised after the first Monday in June as before that date, had the law been extant. Furthermore, the law contains no prohibition to exercise the selection of the depositaries after the first Monday in June. We are at loss to see where the time specified in the act for the selection of depositaries is of the essence of the statute, or, a matter of substance to the contrary, the law was conceived in the belief that it was promoting the public weal, that a remedy is needed for existing abuse, and that a convenient time should be stated when official duty should be performed. To say the act must be construed as being in a state of repose until the first Monday in June next is placing an interpretation thereon of strict and literal severity. The essence, the very quintessence, of the statute is to establish county depositaries and to divert into the public exchequer moneys in the way of interest that had heretofore flowed into private reservoirs, and to hold otherwise would be placing a premium on form, and minimizing, if not destroying, the effect and value of substance.

6. The concluding question is whether a county treasurer is vested with absolute discretion in rejecting or accepting applications of banks or trust companies for designation as county depositaries.

Section 1 of the act reads: “It shall be the duty of the county treasurer * * to designate such banks and trust companies * * as have * * become eligible county depositaries. * * The county treasurer shall pass upon the application,” sign the same, and stamp thereon “Approved” or “Rejected,” and “transmit to the district attorney such application, together with all securities offered for protection of the county funds.”

Section 2 provides: “The county treasurer shall deposit, and at all times keep on deposit in the county depositaries, * * all the moneys of the county coming into his hands,” etc.

7. Apparently from these excerpts no discretion abides with the county treasurers respecting the performance of official duty which is imperative. The enactment requires the officer to initiate the act which makes the statute a living rule of official conduct, but leaves to the treasurer the freedom to act in all matters pertaining to the selection, rejection or designation of county depositaries, according to his own judgment, honestly exercised. Mandamus will lie to compel the execution, by a public officer, of a duty prescribed by law, but not to control the exercise .of that duty, when the act to be done involves the exercise of judgment or discretion.

Considering the enactment in question, we believe the county treasurer of the several counties in this state must select depositaries for county funds, subject only to the controlling influences of a sound discretion in the matter of the financial strength and qualifications of a depositary and the form of the application’as detailed by the statute.

The demurrer to the writ must be overruled.

Demurrer Overruled.