Opinion No. Oag 56-81, (1981)

70 Op. Att'y Gen. 218

• Court: Wisconsin Attorney General Reports
• Decided: October 14, 1981
• Status: Published

Opinion

R.J. MCMAHON, Commissioner Savings and Loan

You have requested my opinion concerning the applicability of sec. 112.05, Stats., to the investment of funds on deposit by savings and loan associations in money market futures. AS YOU have described the procedure, such investments serve to control and make more certain the associations' future interest obligations and allow the associations increased ability to predict or control the rate of their future interest obligations. As you have indicated, such investments, controlled by regulations and insured savings, may be financially sound practices.

It is my opinion that sec. 112.05, Stats., does not apply to savings and loans except when they act in a trust capacity. Section 112.05, Stats., is a part of ch. 112 of the Wisconsin Statutes, which chapter concerns "fiduciaries." It is a criminal statute and must be interpreted narrowly. Shinners v. State exrel. Laacke, 219 Wis. 23, 261 N.W. 880 (1935). In Shinners, the Wisconsin Supreme Court construed the word "person" as used in the first phrase of sec. 112.05, Stats., to apply only to a situation where an individual took money for safekeeping: "With this history in mind, the separate classification of persons engaged in the business of receiving deposits of money for safekeeping can only relate to individuals engaged in that business as distinguished from corporations organized under the banking act."219 Wis. at 30.

Moreover, as none of the other terms in the statute would in any way include a savings and loan association except where it acted as a trustee, a savings and loan association would only be included when it acted in a trust capacity and only with respect to such funds. See 68 Op. Att'y Gen. 372 (1979), where this office approved practices similar to those described in your opinion request.

You further ask if sec. 112.05, Stats., would apply to or restrict trust funds deposited with a savings and loan association. As noted above, only where the savings and loan is acting as a trustee would the restriction in sec. 112.05, Stats., apply and then only to such funds.

BCL:RDR