An opinion in this case, written by one of our commissioners, failed to receive a carrying vote. The case was reassigned to the writer who wrote an opinion which also failed to receive a vote of the majority of the judges in Division One. The case was then transferred to the court en [571] banc, re-argued, additional briefs filed and again assigned to the writer.
This is an action for money had and received. The finding and judgment below were for defendant and plaintiff appealed.
October 9, 1922, Ben C. Hyde, then superintendent of insurance, made an order, under Section 6283, Revised Statutes 1919, now Section 5984, Revised Statutes 1939, reducing certain insurance rates 10 per cent. The order was to become effective November 15, 1922. November 10, 1922, before the effective date of the reduction order, 155 fire insurance companies filed suit (called the review suit) in the circuit court of Cole County, attacking the validity of the reduction order. On the same day the review suit was filed, the insurance companies concerned and the superintendent of insurance entered into an agreement whereby the companies, pending the review suit, were to collect the rates in force prior to the reduction order, but it was provided that in the event the reduction was sustained, the companies would return to the policyholders the excess premium money collected. The review suit was referred; the referee found for the insurance companies; the circuit court, on December 22, 1924, approved the report and finding of the referee, and entered judgment canceling the reduction order. From this judgment the superintendent of insurance appealed, and on June 23, 1926, the judgment of the circuit court, canceling the reduction order, was reversed and the reduction order was approved. [See Aetna Insurance Company et al. v. Hyde, 315 Mo. 113, 285 S.W. 65.] The Supreme Court of the United States granted certiorari [273 U.S. 681, 47 Sup. Ct. 113, 71 L.Ed. 837] and that court, on January 3, 1928, upheld the reduction order and dismissed the certiorari writ. [See Aetna Insurance Company et al. v. Hyde, 275 U.S. 440, 48 Sup. Ct. 174, 72 L.Ed. 357.]
Shortly after the decision by the Supreme Court of the United States, the 155 insurance companies filed separate suits against Superintendent Hyde and the attorney general in the United States District Court at Kansas City, to enjoin the enforcement of the reduction order. These suits attacked the constitutional validity of
what is now Section 5984, Revised Statutes 1939. The 155 suits were heard together in the federal district court, and injunctive relief was denied April 12, 1929. [See Aetna Insurance Company v. Hyde, 34 F.2d 185.] One of the plaintiff companies in the 155 suits filed in the federal district court at Kansas City, appealed from the decision of that court to the Supreme Court of the United States and the decision of the district court was affirmed April 14, 1930. [See National Fire Insurance Company of Hartford v. Thompson, 281 U.S. 331, 50 Sup. Ct. 288, 74 L.Ed. 881.]
The insurance companies returned to the policyholders, who paid the excess premiums, the sum of $10,336,353.16, but this sum was not all that was collected in excess of the rate as fixed by the reduction order of October 9, 1922, and on February 8, 1931, Joseph B. Thompson, then superintendent of insurance, filed motion in the circuit court of Cole County, in the original review suit, to compel restitution of the balance of the premium money collected in excess of the rate as fixed by the reduction order. On May 26, 1933, the circuit court entered an interlocutory decree directing that said balance be paid into the circuit court and held by the court "subject to its further orders." The order of restitution of said balance recited:
"That a master or masters will be appointed by the court in order that such plaintiffs (insurance companies) may show what refunds, or other allowable credits, if any, they have made or are entitled to and for which they will receive credit, and judgment will be accordingly rendered; that such master or masters will allow plaintiffs to have a hearing on all of the issues regarding the amount of money due from them at this time and that such master or masters will conduct such hearings and make such investigation as directed by this court; that when each and every plaintiff has fully complied with this judgment and the other orders to be made by this court it will be fully and completely discharged from any and all liability to any one whatsoever regarding restitution; that this court will retain jurisdiction of this case to make any and all further orders which it deems necessary."
On the heels of the interlocutory judgment for restitution, the insurance companies brought prohibition directly in this court to prohibit the circuit court from enforcing the order of restitution. The contention was that "the circuit court was without jurisdiction to entertain the motion for restitution." It was held (May [572] 3, 1934) that the circuit court did have jurisdiction to make the restitution order. [See State ex rel. Abeille Fire Ins. Co. et al. v. Sevier, 335 Mo. 269,73 S.W.2d 361.]
December 14, 1934, the circuit court made two orders in the original review suit. The first of these orders recited the various orders theretofore made in the cause and substituted R.E. O'Malley, then superintendent of insurance, as movant in the motion for restitution, and the order gave directions to the insurance companies as to how and
what they should do in making restitution, and directed that each company, by February 15, 1935, deliver to the Clerk of the circuit court "a check for the amount of unrefunded moneys" and this check was to be made "payable to custodians" to be appointed by the court. And the order further recited that L.H. Cook and H.P. Lauf were appointed commissioners and custodians and charged with the duty of examining the reports and remittances required under the order, and they were authorized to pass on the correctness of the reports, etc., and, if necessary, they were authorized to hold hearings on the correctness of the reports and remittances. And, until otherwise directed, the custodians were directed to deposit "the proceeds of said checks" in the Central Missouri Trust Company, defendant in the present case.
The second order made by the circuit court on December 14, 1934, was as follows:
"Now at this day the court having before it the matter of the collection, care and disbursement of the fund arising from the order of restitution heretofore made herein, it is hereby ordered:
"1. That the Central Missouri Trust Company, the depository heretofore designated by the court, shall open an account and carry the same on the books in the following language: Circuit Court of Cole County, Missouri, Restitution Fund. Aetna Insurance Company et al. v. R.E. O'Malley, Superintendent of Insurance of Missouri, H.P. Lauf and L.H. Cook, custodians.
"2. That no moneys shall be paid out of said fund for any purpose whatsoever except upon the written order of this court, and that all such payments shall be made by check signed by the judge of this court and by the two custodians herein, and said check shall show upon its face the date of the court order authorizing the issuance of same. The signatures of both custodians shall appear at the bottom of such check and the signature of the judge of this court shall appear upon the left hand margin thereof, and unless all such signatures appear as aforesaid the said depository shall not be authorized to cash the same.
"3. The custodians are hereby directed to open and keep proper books showing the amounts received by them and from whom, and the dates of such receipts, and also showing all amounts paid out, when paid, to whom and for what purpose, which books shall be open at all times to the inspection of the court and its designated agents or officers and to the counsel in this case."
December 7, 1935, the circuit court entered its final judgment of restitution against the insurance companies in which the balance due from each company was stated. And on February 18, 1936, an order was made to the effect that the insurance companies had fully complied with the order of restitution, and the companies and their sureties were discharged "from all further obligations." The insurance
companies paid to the custodians $2,751,256.32, and this amount was deposited by them in the defendant trust company. The first deposit was for $51,739.32, and was made on December 29, 1934, and the last deposit was for $2.10, and was made August 21, 1936. The custodians, appointed by the court, returned to policyholders $100,978.14, and there was checked out of the deposited restitution funds, over the period of January 24, 1935 to and including January 31, 1938, for fees, salaries, etc., in attempting to deliver the money to policyholders, the sum of $289,789.95. Of the amount checked out for what may be called administration costs, $60,500.00 went to each of the custodians; $78,966.25 to attorneys; $67,408.50 for office salaries, clerical help; $8,884.42 for rent; $8,613.08 for furniture and fixtures; $9,184.68 for stationery and printing, and $5,927.90 for postage. The balance of administration costs was for miscellaneous and less costly items.
Plaintiff's petition is in 75 counts, each count being based upon a separate deposit. Count No. 1 contained this allegation:
"Plaintiff further states that on December 29, 1934, the defendant herein, without the consent of the superintendent of the insurance department of Missouri, wrongfully and without authority of law received [573] the sum of fifty-one thousand, seven hundred thirty-nine dollars and thirty-two cents ($51,739.32) of the said money so paid to the said L.H. Cook and H.P. Lauf; that at the time defendant received said money it knew that said money belonged to the policyholders of Missouri and that the superintendent of the insurance department of Missouri was the lawful custodian thereof, and that the circuit court of Cole County, Missouri, and the said L.H. Cook and H.P. Lauf were wrongfully attempting to deposit said money with defendant and to administer said money contrary to law." Each count, except as to date and amount, contained such allegation.
October 17, 1938, George A.S. Robertson, then superintendent of insurance, by letter, demanded of defendant that the restitution money be turned over to him as such superintendent. October 22, 1938, defendant replied to the superintendent, stating the amount that had been deposited, and the amount checked out, and expressed a willingness to turn over the balance upon presentation of "a check therefor payable to you, drawn and signed conformably to the order of the depositor court accompanying the initial deposit, with respect to which you have been fully advised by our said letter of October 8th, or a further order of said circuit court directing such payment be made to you."
The present cause was filed November 6, 1938, and on November 23, 1938, defendant trust company filed motion in the circuit court, in the original review suit, asking for an order directing it to pay over to the superintendent of insurance the amount of restitution money deposited with it, less the amount paid out to policyholders and for administration costs. On the same day this motion was filed,
superintendent Robertson applied to this court for prohibition to prohibit the circuit court from making an order authorizing defendant to pay over to him any sum less than the amount of restitution money deposited. Preliminary writ was granted, and it was held (October 17, 1939) that the circuit court had jurisdiction to make an order directing defendant to pay over to the superintendent of insurance the restitution money it then had on deposit. [See State ex rel. Robertson v. Sevier, 345 Mo. 274,132 S.W.2d 961.] November 20, 1939, pursuant to the mandate of the Supreme Court, the circuit court made an order directing defendant to turn over to the superintendent of insurance the amount of the restitution money then on deposit with it, and defendant, on the same day, turned over said amount, $2,360,488.23, to the superintendent of insurance.
As stated, supra, this cause was filed November 16, 1938, before the turnover to the superintendent, and in the petition judgment is asked for the total amount deposited with interest. However, plaintiff, in the brief, takes cognizance of the $100,978.14 disbursed by the custodians to the policyholders, and the amount turned over to the superintendent of insurance by defendant on November 20, 1938, and in the brief states "that in reality the action as it now stands is for the sum of $289,789.95."
Appellant contends: that the circuit court had no jurisdiction to seize and administer the fund; that portions of the court orders directing the commissioners to deposit the fund in defendant trust company indicated that the court was attempting to administer the fund and hence were void; that void orders protect no one; that defendant is presumed to know the law; that, by accepting the deposits, the relation of debtor and creditor was not created, but defendant became a trustee ex maleficio; that defendant knew the source of the fund and knew, or should have known, that the superintendent was the rightful custodian.
After this case was transferred to the court en banc, appellant filed a supplemental brief in which, for the first time, he makes the further contention that the excess premiums collected became a trust fund in the hands of the insurance companies and were impressed with such trust at the time they were paid to Cook and Lauf or into the registry of the court.
[1] We did hold, first in Aetna Ins. Co. v. O'Malley,342 Mo. 800, 118 S.W.2d 3, in June, 1938, and in later cases, that the superintendent was the rightful custodian and that the circuit court was without authority to administer the fund through custodians of its own choosing. However, an examination of the many cases involving this fund fails to disclose that we have ever held the circuit court was without power to collect this fund and keep it in the registry of the court until final adjudication of the amount due from each insurance company. Nor have we ever held that the circuit court lacked power
to order the money deposited in a bank during the process of collection.
[574] The motion for restitution, filed by the superintendent in the circuit court on February 18, 1931, prayed "that plaintiff be required to pay into this court," etc. In State ex rel. Robertson v. Sevier, 345 Mo. 274, l.c. 279, 132 S.W.2d 961, decided November 7, 1939, it was admitted by the then superintendent of insurance that this fund was in the registry of the circuit court, even though on deposit in the defendant trust company, subject to the check of the circuit judge. As to a similar fund, sec: State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876; American Constitution Fire Assur. Co. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795.
As stated, this fund was not paid into the registry of the court in one lump sum. The first deposit was made on December 29, 1934, in the amount of $51,739.32 and the last deposit on August 21, 1936, in the sum of $2.10. Between those dates many deposits were made. In its judgment of December 7, 1935, the court found that certain companies owed additional amounts which they were required to pay; also that one company had paid the commissioners more than the amount of its liability and the excess was ordered refunded to it. Until December 7, 1935, there was no final judgment by the circuit court as to the amount due from any company and until February 18, 1936, there was no finding by that court that all the companies had complied with its orders by paying into court the amounts due.
We have consistently held, in several cases, that this fund was collected for the benefit of the policyholders who had paid excessive premiums, and that the superintendent was the proper custodian to make distribution to such policyholders. But we have never held that the policyholders were entitled to receive distribution as each payment was made by the companies; nor that the superintendent, as the representative of the policyholders, necessarily was entitled to receive each payment as made. In the Aetna case, 342 Mo. l.c. 814, we said the circuit court had jurisdiction to compel the companies to pay the excess premiums to the superintendent "or into court for him." We also said, at page 813: "The refunds could not be made until the court on December 7, 1935, by its final judgment in the restitution action compelled the companies to pay the excess premiums into court." In the American Constitution case, 342 Mo., l.c. 156, speaking of a similar fund, we said: "Since the court has the fund in its custody, it is its duty to protect it and see that it reaches the rightful custodian." We think the circuit court had jurisdiction to cause this fund to be paid into its registry and, until final adjudication and payment of the amounts due, had the right to cause the money to be deposited in a bank. [City of Fulton v. Home Trust Co., 336 Mo. 239, 78 S.W.2d 445.]
In the former opinion prepared by the writer, the Fulton case was cited, but not discussed. In his supplemental brief, appellant seeks
to distinguish that case from the instant case on the facts, but we still think it is authority for the right to deposit these funds during the process of collection. In the Fulton case a statute required a city collector to report to the city council and pay all collections into the treasury monthly. A city ordinance required the collector to make a settlement each month with the city clerk and to immediately pay into the treasury the amount found due on such settlement. It was the custom of the collector to make daily deposits to his credit as city collector of all collections during the month and then draw his check to the treasurer for the amount found due on his settlement at the end of the month. Near the end of a certain month the bank failed and the city claimed a preference for the amount then on deposit to the credit of the collector, being the collections made during the current month. The claim for preference was based upon exactly the same contentions made by the appellant in the instant case in his original brief, to-wit: "that the city collector was not the legal custodian of such funds; that the deposits were made without authority, were illegal or unlawful, and known by the officers of the bank to be so, and that a trust ex maleficio was created; second, that, if they be held to be lawful deposits, under the facts, they were received as, became and were, special deposits which the bank held as mere trustee." Division One of this court, without dissent, held against all the contentions of the city. Not only were the points of law decided in that case identical with those advanced by the appellant in his original brief in the instant case, but the facts are in many ways similar. In that case the bank officials knew that the [575]
money had been collected from the taxpayers for the benefit of, and to be turned over to, the city after settlement with the city clerk. In this case the bank officials knew that the money had been collected from the insurance companies for the benefit of policyholders and, it may be presumed, knew that it should be turned over to the superintendent of insurance for the policyholders when the court finally determined the amount due and collected the same. Neither in the Fulton case nor in this was the act of retaining the fund during the process of collection a violation of any statute. We there held that the city collector had implied power to make and the bank had the right to receive, the deposits on a creditor-debtor basis.
In West St. Louis Trust Co. v. Brokaw, 232 Mo. App. 209,102 S.W.2d 792, Frank Brokaw, as next friend of Scott Brokaw, a minor, obtained and collected a judgment for $2,000.00. The circuit court made an order that the next friend deposit the money in the trust company for the minor until he should reach his majority. The money was deposited to the credit of "Frank Brokaw, trustee for Scott Brokaw" and the bank made a record that "Mr. Brokaw must have an order from the court before any withdrawals will be allowed." The bank failed and a preference was claimed for the amount of the
deposit. The St. Louis Court of Appeals, while conceding that the portion of the court's order directing the deposit was void, held that there was nothing unlawful in accepting a general deposit of trust funds and that a trust ex maleficio did not arise from the mere acceptance of such deposit.
[2] So, then, the mere deposit of the money, without more, did not constitute the defendant trust company a trustee ex maleficio. [U.S.F. G. Co. v. Mississippi Valley Trust Co. (Mo. App.), 153 S.W.2d 752; Paul v. Draper, 158 Mo. 197, 59 S.W. 77.] But the appellant says that the court was without authority to deposit the money in the names of Cook and Lauf; that that portion of the court orders of December 14, 1934, as well as the direction for the management of the fund, was void and therefore no protection to any one. To follow that argument to its final conclusion would compel us to hold that the judgment of the circuit court ordering payment to the commissioners does not protect the insurance companies, and that they still owe the balance of the money which has not reached the superintendent because they have not made payment to the right person. However, we do not think the court's orders are defective to the extent contended by appellant. The court had jurisdiction to order the money paid into its registry and, pending final adjudication, to order the money deposited in a bank. The fact that the order required the deposits to be made in the names of the commissioners, in addition to the name of the court, does not entirely invalidate the orders.
In the Aetna case, 342 Mo. 800, 118 S.W.2d 3, this court referred to the orders of the circuit court made on December 14, 1934, and many other orders made after that date. We there held that the orders appointing Cook and Lauf "as custodians to distribute said fund" and an order appointing an attorney for such custodians were void. Those were the only orders involved in that case. We there said that the orders appointing Cook and Lauf, by whatever name they were called, constituted them referees and that the orders attempting to clothe them with authority to administer the fund after it was paid into court
was void. That portion of the orders requiring the money to be deposited was not in issue and not discussed.
Appellant says that the wording of the court orders of December 14, 1934, which orders were brought to the attention of defendant, was sufficient to show the defendant that the court intended to exceed its jurisdiction by administering the fund. The second order of December 14 has heretofore been set out. The first order is quite long and it is unnecessary to set it out in full. The effect of it was to appoint Cook and Lauf as referees (although they were erroneously called "custodians and commissioners") with directions to make an accounting with the various insurance companies. The order also provided that payments from the companies be deposited in a bank or invested in securities, but "until otherwise directed shall deposit
the same in the Central Missouri Trust Company." The payments were deposited and the court never at any time made any order to invest the money.
Appellant says that these two orders indicate that the court was at that time attempting to seize the fund and administer it; that the defendant is presumed to know the law and therefore was bound to know [576] that the superintendent of insurance alone had authority to administer the fund.
It probably is true that at the time these orders were made on December 14, 1934, the court, the superintendent and the defendant all believed that the court had jurisdiction to administer the fund. This court did not hold that the circuit court lacked such jurisdiction until nearly four years after such orders were made. Whether the maxim, "that every one is presumed to know the law," required the defendant to anticipate our construction of the law, it is unnecessary for us to decide. Regardless of the beliefs or intentions of the parties, there was nothing in the two orders under which the deposits were made authorizing the commissioners to pay administration expenses out of the money belonging to the policyholders. The second order prescribed the manner in which the account should be carried, set out the form of checks, and required the commissioners to keep books, but said nothing about the purposes for which payments should be made.
[3] Bear in mind that the only charge against the defendant is that it illegally received the deposits; that charge being based upon allegations that defendant knew as a matter of law that the superintendent was the proper custodian and knew as a matter of fact that the circuit court in making the deposits thereafter intended to administer the fund.
The cases cited by appellant on this phase of the case are not in point. They are cases involving claims for preference against the assets of closed banks, based upon failure to comply with the statutory method for selecting depositories. Each of them concerns a claim for preference for the amount remaining on deposit at the time the bank closed; none of them involves the liability of the bank for money paid out by checks under orders of a court, or otherwise.
"When, however, the bank is sought to be held, not for what it has that belongs to another, but to pay that other what the bank did not retain but which still others got, the result is very different, and so ought the applicable principles to be." [Atlanta, etc., Ry. v. Barnes, 95 F.2d l.c. 275.]
Appellant says that when defendant honored checks for items of administration expense it had knowledge that the court was administering the fund and paying expenses out of the policyholders' money.
There is no evidence that any orders of the court for the payment of expenses were brought to defendant's attention. The agreed statement of facts shows that none of the checks, except for refunds to
policyholders, indicated the purpose for which it was drawn. But, even if it be conceded that the evidence justifies an inference that the defendant knew expenses were being paid out of the fund, such evidence is not responsive to any allegation of the petition. The petition does not charge the defendant with any wrong, negligence or irregularity in paying out the money after it was deposited. The charge is that defendant illegally received deposits of the money in the names of Cook and Lauf when it knew that it belonged to policyholders and that the superintendent was the proper custodian.
[4] Cases cited by appellant are clearly distinguishable from the instant case on their facts. In Pile v. Bank,187 Mo. App. 61, 173 S.W. 50, the bank received the benefit of part of the money by applying it to an overdraft. St. Charles Savings Bank v. Orthwein Inv. Co., 160 Mo. App. 369, 140 S.W. 921, and Paxton v. Gilliam-Jackson L. T. Co., 221 Mo. App. 1101, 297 S.W. 119, each was a suit against a person charged with appropriating money to his own use. In Mann v. Bank, 323 Mo. 1000, 20 S.W.2d 502, a bank cashier loaned to his bank a part of a trust fund under his control as trustee. In Round Prairie Bank v. Downey (Mo. App.), 64 S.W.2d 701, recovery was sought for money loaned to the bank, and Mo. Twp. v. Bank, 328 Mo. 868, 42 S.W.2d 353, was a suit for money paid to a bank. Other cases cited involve actual fraud or unjust enrichment. They are not in point. In the instant case there was no allegation or proof that the defendant trust company received or appropriated to its own use any part of the fund, nor that any part of the fund was paid to the defendant by any person who received payment from the commissioners. This is not a case of fraud or unjust enrichment, nor an effort to recover trust funds from the ultimate recipient. All the fund not paid to the superintendent was paid out to others on checks in accordance with the contract of deposit. None of it was retained by defendant trust company for its own use. Under such circumstances we do not think the doctrine of constructive trusts applies. [3 Bogert, Trusts and Trustees, page 1451, sec. 471; In re West of St. Louis [577] Trust Co. v. Brokaw,232 Mo. App. 209, 102 S.W.2d 793; U.S.F. G. Co. v. Mississippi Valley Trust Co. (Mo. App.), 153 S.W.2d 752.]
[5] Since this case was lodged in this court, en banc, the appellant makes the contention, not contained in his former briefs, that the excess premiums constituted a trust fund in the hands of the insurance companies and was impressed with such trust at the time they were paid to Cook and Lauf or into the registry of the court. No such theory was advanced in the trial court either in the proceeding to compel restitution or in the instant case. The motion for restitution was based on the theory that the insurance companies had not completely paid back to the policyholders the excess premiums they had collected and that they still owed an undetermined balance. The
motion, in effect, asked the circuit court to determine the amount of this balance and to require the companies to pay it into court. The motion did not seek to impress a trust, but to collect a debt.
Many briefs have been filed in this case. In the last one, filed since the argument en banc, appellant elaborates an argument made in somewhat different form in his previous briefs to the effect that the title to the fund passed to the policyholders immediately upon its payment into court, citing a number of cases. We deem it unnecessary to review these cases except to say that they do not decide the question of the court's right to deposit such funds in a bank. They do, however, treat such payments into court as being in custodia legis. In the instant case the superintendent of insurance never claimed or demanded the fund during the period of nearly two years it was being paid into court. The only question before us is as to the court's right to make deposit in bank of the money in its registry. Even if the deposits were trust funds and known to be such by the bank, that fact alone would not create a trust relation as between the bank and depositor. [9 C.J.S., sec. 275, p. 575; Fred A. Boswell Post v. Farmers State Bank (Mo. App.), 61 S.W.2d 761.]
[6] Respondent cites, among other reasons for sustaining the judgment rendered in its favor by the lower court, Section 5458, Revised Statutes Missouri 1929 [Mo. Stat. Ann., sec. 5458, p. 7655] now Section 8062, Revised Statutes Missouri 1939. That statute requires that a person claiming a deposit, standing on the books of a trust company in the name of another, to either procure a restraining order or indemnify the trust company. Respondent argues that, as the superintendent knew the manner in which the deposit was being carried and administered and failed to comply with the statute or to make any claim whatever, he is barred from maintaining this suit. It is unnecessary for us to pass upon this contention. However, this statute is one indication of the State's solicitude for the solvency of banking institutions. The banking business is coupled with great public interest. It is subject to strict regulation, visitation and supervision. Ordinarily a bank or trust company acting as depository of funds in court may safely rely upon the court's orders, without the necessity of employing counsel to pass upon the validity of each order. Otherwise it would be unsafe for banks to act as such depositories.
"The order of court, although directing payment to a person not entitled thereto, is an absolute protection to the custodian, and this is true, even in case the order was fraudulently procured, if the custodian had nothing to do with its procurement." [18 C.J., p. 778, sec. 50.]
"Banks are in effect fiscal agents of the government. They are essential to the business interests of our state. They operate under government supervision. The public has a keen interest in their successful operation and in their facilities for public service. They
aim to afford the public a safe place for the keeping of one's money. While regulation must be and is strict and exacting, unreasonable and unjust rules inconsistent with the efficient and safe conduct of the bank are not to be imposed." [Rodgers v. Bankers' National Bank, 179 Minn. l.c. 203.]
Under the proof we do not think the defendant trust company acted illegally in accepting the deposit of this fund. Therefore, the relationship of debtor and creditor arose and, in the absence of allegation and proof of fraud (actual or constructive) or of unjust enrichment in the handling of the account, the defendant is not liable and the judgment should be affirmed. It is so ordered. Leedy and Tipton, JJ., concur; [578] Douglas andEllison, JJ., concur in separate opinions; Hays, J., dissents in separate opinion; Gantt, C.J., dissents.