272 P. 699

ADAMS COUNTY, a Municipal Corporation, Respondent, v. FIRST BANK OF COUNCIL, a Banking Corporation; E. W. PORTER, Commissioner of Finance, and A. M. BOYLEN, Liquidating Agent, Appellants.

No. 5167.Supreme Court of Idaho.
December 11, 1928.

APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. E. L. Bryan, Judge.

Action to recover a deposit claimed as a trust fund. Judgment for the plaintiff. Affirmed.

Oppenheim Lampert, E.O. Smith and Charles P. McCarthy, for Appellants.

All deposits of public funds of every kind and character (except those actually placed on special deposit under the statutes providing therefor), whether deposited in violation of law or otherwise take the same priority as debts due general depositors. (1925 Sess. Laws, chap. 133, sec. 77, subd. 3.)

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A deposit in the absence of proof to the contrary is presumed to be a general one. (Fralick v. Coeur d’Alene Bank T. Co., 36 Idaho 108, 210 P. 586; Bacon v. State Bank of Kamiah et al., 41 Idaho 518, 240 P. 194.)

In order to establish a special deposit, it is incumbent upon the depositor to prove by a preponderance of evidence that a contract of special deposit was entered into. (Fralick v. Coeur d’Alene B. T. Co., supra.)

A tax collector cannot make a special deposit of public moneys. (1925 Sess. Laws, chap. 45, sec. 12.)

Respondent contends that the deposit in question will be presumed to be a valid special deposit, regularly made in accordance with the statutes, because of a presumption of regularity which attaches to the acts of a public officer, in this case the tax collector.

The nature and limitations of the presumption of the performance of official duties and regularity of official acts, as applied to evidence, are well expressed in the following statement by Professor Wigmore:

“The general experience that a rule of official duty, or a requirement of legal conditions, is fulfilled by those upon whom it is incumbent has given rise occasionally to a presumption of due performance. This presumption is more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules. It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer’s action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and, finally, that the circumstances of the particular case add some element of probability.” (4 Wigmore on Evidence, 2d ed., p. 544, sec. 2534.)

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Carl H. Swanstrom and George Donart, for Respondent.

A treasurer, as defined by the Public Depositary Act, being Sess. Laws 1921, chap. 256, as amended by Sess. Laws 1925, chap. 45, includes both the county treasurer and tax collector. (Sess. Laws 1921, chap. 256, sec. 6, as amended by sec. 3 of chap. 45, p. 65, Sess. Laws 1925.)

The powers of a county tax collector, with respect to the deposit of county funds are coextensive with those of a county treasurer and either may make a special deposit of county moneys. (C. S., sec. 3580, sec. 8379, subd. 4; chap. 256, sec. 24, Sess. Laws 1921, as amended by 1925 Sess. Laws, chap. 45, sec. 10; In re Bank of Nampa, 29 Idaho 166, 157 P. 1117; State v. Thum, 6 Idaho 323, 55 P. 858; First Nat. Bank v. C. Bunting Co., 7 Idaho 27, 59 P. 929, 1106.)

The law presumes that official acts of public officers have been rightfully done, and proof of an act which presupposes the existence of other acts to make it legally operative, constitutes presumptive proof of the commission of such other acts. (Dement v. City of Caldwell, 22 Idaho 62, 125 P. 200 Prothero v. Board of County Commissioners, 22 Idaho 598, 127 Pac. 175; Stuart v. White, 19 Idaho 60, 112 P. 677; Meservey v. Gulliford, 14 Idaho 133, 93 P. 780; Sims v. Milwaukee Land Co., 20 Idaho 513, 119 P. 37; Gillette-Herzog Manufacturing Co. v. Aitkin, 69 Minn. 297, 72 N.W. 123; Eldodt v. Territory, 10 N.M. 141, 61 P. 105; Pine Tree Lumber Co,. v. City of Fargo, 12 N.D. 360, 96 N.W. 357.)

GIVENS, J.

Respondent seeks to recover from appellants as a trust fund money claimed by respondent to have been placed on special deposit with appellant, First Bank of Council, a defunct institution in the hands of appellant, E.W. Porter, Commissioner of Finance. Appellants virtually admit that if respondent had the legal right to make a special deposit, the facts were sufficient to show the deposit to have been of that character. Their defense is based

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on the contention that it is not clear whether the deposits were made by George A. Winkler as “Treasurer” or “Tax Collector,” and that he was not authorized to make a special deposit because the record did not show either that the limit in the banks in the county, under sec. 24, chap. 256, Sess. Laws 1921, p. 566, as amended by sec. 10, chap. 45, Sess. Laws 1925, p. 69, had been reached, or that the county commissioners as a supervising board had authorized a special deposit, or had not provided a safe place in the offices of the treasurer for the keeping of the public moneys.

With regard to the first point, there is no contention that the funds were not county funds, being received by the treasurer as tax collector. The county was the depositing unit. The point is made, however, that under sec. 12, chap. 45 supra, amending chap. 256, 1921 Sess. Laws, the tax collector has no authority to make a special deposit even under the provisions of sec. 10 of said chap. 45. It is clear from the use of the words “public moneys” that sec. 10 covers all of the public moneys of the depositing unit; hence the statute authorizes a special deposit of any public funds.

With regard to conditions precedent authorizing a special deposit, this court has repeatedly held that, in the absence of any contrary showing, the existence of such conditions will be presumed under the doctrine of the presumed regularity of the acts of public officials. Meservey v. Gulliford, 14 Idaho 133, 93 P. 780; Stewart v. White, 19 Idaho 60, 112 P. 677; and while it might be contended that in Sims v. Milwaukee Land Co., 20 Idaho 513, 119 P. 37, the expression was dicta, the rule is there well stated and recognized; Dement v. City of Caldwell, 22 Idaho 62, 125 P. 200; Prothero v. Board of County Commissioners, 22 Idaho 598, 127 P. 175; Athey v. Oregon Short Line R. R. Co., 30 Idaho 318, 165 P. 1116; Bruce v. Frame, 39 Idaho 29, 225 P. 1024; Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45.

The record justified the trial court in finding that a special deposit had lawfully been made.

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That the funds were sufficiently traced was not disputed. The judgment is affirmed. Costs awarded to respondent.

Budge, J., and Baker, D. J., concur.

Wm. E. Lee, C. J., concurs in the conclusion.

Petition for rehearing denied.

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