Mr. Justice Jones
delivered the opinion of the court:
The People, by Edward J. Barrett, Auditor of Public Accounts of the State of Illinois, filed a complaint in the circuit court of Livingston county against Ralph F. Bradford, former Director of the Department of Conservation, and the National Surety Company, surety on his bond in the sum of $10,000, alleging that, as such director, Bradford had, on January 23, 1933, collected fines, fees, and penalties in the sum of $37,654.81, which he has not paid into the State Treasury, though it was his duty to do so within thirty days after receipt of same. The defendants answered, denying the principal allegations of the complaint, and setting up twelve special defenses. Plaintiff filed a motion to strike these defenses, and the motion was sustained except as to four of the defenses. Plaintiff elected to stand by its motion to strike and judgment was entered for defendants. This appeal followed.
The People have filed a motion to strike the statement, brief and argument of appellees for the reason that they have argued the defenses stricken by the trial court, and urge that these cannot be considered, on review, because appellees took no cross-appeal. They did assign cross-errors. Appellees have moved to strike this motion because a copy of appellant’s motion and suggestions in support thereof were not served on opposing counsel at least twenty-four hours before the motion was presented for filing, as required by rule 49 of this court. Both occurred December 13, so the motion of appellees to strike the motion of appellant is sustained.
Moreover, it was unnecessary for appellees to cross-appeal in order to save for review all the defenses interposed in their answer. The judgment appealed from was for appellees, and no part of it was adverse to them. They were, therefore, in no position to prosecute a cross-appeal. Having obtained all the relief they deemed themselves entitled to, they may sustain the judgment upon any ground warranted by the record, though they may wish to show the court below erred in not giving it to them on different or additional grounds. (Bullman v. Cooper, 362 Ill. 469; McCaskill, Civil Practice Act Ann. 1936, (Supp.) p. 209.) All of the defenses interposed related to the defense of estoppel, the ground on which the decision of the trial court was based. The refusal of the circuit judge to consider certain elements claimed to create an estoppel does not preclude us from considering them. We shall later discuss the acts which appellees urge create an estoppel against the State.
Bradford, as Director of the Department of Conservation, received from county, city and village clerks the proceeds of fees, fines and penalties collected by them pursuant to the Fish and Game Codes. He had a deposit account with the Livingston County National Bank at Pontiac, in the name of “Ralph F. Bradford, Director of the Department of Conservation.” When this bank closed January 23, 1933, there was a balance of $37,654.81 in the account. The State brought suit against the receiver of the bank to establish a preferred claim on the theory of a trust ex maleficio. A consent decree was entered allowing a preferred claim of $3000, which was all that could be traced, and the remainder as a general claim, on which dividends in the sum of $12,129.18 have been paid. This total of $15,129.18 was held by the trial court to be a good defense of part payment.
The rule is well established in this State that a public officer is liable on his bond for the loss of public funds coming into his hands by virtue of his office and deposited by him in a bank and lost through its failure, though the bank was reputed solvent, and nothing can relieve him of his obligation to safely keep and pay over such funds, but the act of God or of the public enemy. (People v. West Englewood Bank, 353 Ill. 451; Estate of Ramsay v. People, 197 id. 572; People v. McGrath, 279 id. 550; Oeltjen v. People, 160 id. 409; Thompson v. Board of Trustees, 30 id. 99.) This is true even though the officer rightfully deposited the funds. A fortiori, the rule applies if, as contended by the People here, the deposit was wrongfully made.
The statute then in effect, (Smith-Hurd Stat. 1931, chap. 120, sec. 154, par. 142,) provided: “The revenue for State purposes shall be collected in gold and silver coin, United States legal tender notes, current national bank notes and auditor’s warrants and in no other currency.” The statute also provided, (Smith-Hurd Stat. 1931, chap. 127, sec. 2, par. 171,) that every officer, department, etc., receiving money for or on behalf of the State “shall pay into the State Treasury the gross amount of money so received without delay and not later in any event than thirty days after the receipt of same, without any deduction on account of salaries, fees, costs, charges, expenses or claims "of any description whatever.” Nowhere is any authority given the Director of the Department of Conservation to accept checks or drafts or to deposit them in a bank for collection. The State Treasurer may deposit State moneys only in banks approved as State depositaries, and then only when the bank shall have deposited securities with the State Treasurer equal in market value to the amount of moneys de-. posited. (Ill. Rev. Stat. 1937, chap. 130, par. 29.) Bradford’s duty was to collect the money from the county, city and village clerks and turn it over to the State Treasurer. It was no part of his duty to select a depositary for such funds. Town of Cicero v. Hall, 240 Ill. 160.
Appellees contend that section 31 of the Pish Code (Smith-Hurd Stat. 1931, chap. 56) and section 40 of the Game Code (Smith-Hurd Stat. 1931, chap. 61) impliedly authorized Bradford to accept checks and drafts, and, of necessity, to deposit them for collection, by providing that “county, city and village clerks shall not be permitted to make deductions from remittances sent to the department for either postage or for the costs or fees for drafts or money orders.” These negative provisions cannot be held to have repealed, by implication, the express provision of the Revenue act as to the manner in which revenue for State purposes shall be collected.
Appellees insist that the rule of absolute liability does not apply here for the reason that the State is estopped, by the acts of its officers, from asserting its rights against Bradford. The general rule in this State is that the doctrine of estoppel is not applicable to the State acting in its sovereign capacity. In People v. Brown, 67 Ill. 435, the People brought suit against the sureties on a sheriff’s bond. Defendants claimed an estoppel, on the ground that because of a mistake of the Auditor in stating the sheriff’s account, defendants were prevented from obtaining indemnity against the State. We held the defense of estoppel not available against the State and said: “Its rights, revenues, and property would be at a fearful hazard should this doctrine be applicable to a State. A great and over-shadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine. If it can be applied in this case, where a comparatively small amount is involved, it must be applied where millions are involved, thus threatening the very existence of the government.”
In People v. Woods, 354 Ill.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Jones
delivered the opinion of the court:
The People, by Edward J. Barrett, Auditor of Public Accounts of the State of Illinois, filed a complaint in the circuit court of Livingston county against Ralph F. Bradford, former Director of the Department of Conservation, and the National Surety Company, surety on his bond in the sum of $10,000, alleging that, as such director, Bradford had, on January 23, 1933, collected fines, fees, and penalties in the sum of $37,654.81, which he has not paid into the State Treasury, though it was his duty to do so within thirty days after receipt of same. The defendants answered, denying the principal allegations of the complaint, and setting up twelve special defenses. Plaintiff filed a motion to strike these defenses, and the motion was sustained except as to four of the defenses. Plaintiff elected to stand by its motion to strike and judgment was entered for defendants. This appeal followed.
The People have filed a motion to strike the statement, brief and argument of appellees for the reason that they have argued the defenses stricken by the trial court, and urge that these cannot be considered, on review, because appellees took no cross-appeal. They did assign cross-errors. Appellees have moved to strike this motion because a copy of appellant’s motion and suggestions in support thereof were not served on opposing counsel at least twenty-four hours before the motion was presented for filing, as required by rule 49 of this court. Both occurred December 13, so the motion of appellees to strike the motion of appellant is sustained.
Moreover, it was unnecessary for appellees to cross-appeal in order to save for review all the defenses interposed in their answer. The judgment appealed from was for appellees, and no part of it was adverse to them. They were, therefore, in no position to prosecute a cross-appeal. Having obtained all the relief they deemed themselves entitled to, they may sustain the judgment upon any ground warranted by the record, though they may wish to show the court below erred in not giving it to them on different or additional grounds. (Bullman v. Cooper, 362 Ill. 469; McCaskill, Civil Practice Act Ann. 1936, (Supp.) p. 209.) All of the defenses interposed related to the defense of estoppel, the ground on which the decision of the trial court was based. The refusal of the circuit judge to consider certain elements claimed to create an estoppel does not preclude us from considering them. We shall later discuss the acts which appellees urge create an estoppel against the State.
Bradford, as Director of the Department of Conservation, received from county, city and village clerks the proceeds of fees, fines and penalties collected by them pursuant to the Fish and Game Codes. He had a deposit account with the Livingston County National Bank at Pontiac, in the name of “Ralph F. Bradford, Director of the Department of Conservation.” When this bank closed January 23, 1933, there was a balance of $37,654.81 in the account. The State brought suit against the receiver of the bank to establish a preferred claim on the theory of a trust ex maleficio. A consent decree was entered allowing a preferred claim of $3000, which was all that could be traced, and the remainder as a general claim, on which dividends in the sum of $12,129.18 have been paid. This total of $15,129.18 was held by the trial court to be a good defense of part payment.
The rule is well established in this State that a public officer is liable on his bond for the loss of public funds coming into his hands by virtue of his office and deposited by him in a bank and lost through its failure, though the bank was reputed solvent, and nothing can relieve him of his obligation to safely keep and pay over such funds, but the act of God or of the public enemy. (People v. West Englewood Bank, 353 Ill. 451; Estate of Ramsay v. People, 197 id. 572; People v. McGrath, 279 id. 550; Oeltjen v. People, 160 id. 409; Thompson v. Board of Trustees, 30 id. 99.) This is true even though the officer rightfully deposited the funds. A fortiori, the rule applies if, as contended by the People here, the deposit was wrongfully made.
The statute then in effect, (Smith-Hurd Stat. 1931, chap. 120, sec. 154, par. 142,) provided: “The revenue for State purposes shall be collected in gold and silver coin, United States legal tender notes, current national bank notes and auditor’s warrants and in no other currency.” The statute also provided, (Smith-Hurd Stat. 1931, chap. 127, sec. 2, par. 171,) that every officer, department, etc., receiving money for or on behalf of the State “shall pay into the State Treasury the gross amount of money so received without delay and not later in any event than thirty days after the receipt of same, without any deduction on account of salaries, fees, costs, charges, expenses or claims "of any description whatever.” Nowhere is any authority given the Director of the Department of Conservation to accept checks or drafts or to deposit them in a bank for collection. The State Treasurer may deposit State moneys only in banks approved as State depositaries, and then only when the bank shall have deposited securities with the State Treasurer equal in market value to the amount of moneys de-. posited. (Ill. Rev. Stat. 1937, chap. 130, par. 29.) Bradford’s duty was to collect the money from the county, city and village clerks and turn it over to the State Treasurer. It was no part of his duty to select a depositary for such funds. Town of Cicero v. Hall, 240 Ill. 160.
Appellees contend that section 31 of the Pish Code (Smith-Hurd Stat. 1931, chap. 56) and section 40 of the Game Code (Smith-Hurd Stat. 1931, chap. 61) impliedly authorized Bradford to accept checks and drafts, and, of necessity, to deposit them for collection, by providing that “county, city and village clerks shall not be permitted to make deductions from remittances sent to the department for either postage or for the costs or fees for drafts or money orders.” These negative provisions cannot be held to have repealed, by implication, the express provision of the Revenue act as to the manner in which revenue for State purposes shall be collected.
Appellees insist that the rule of absolute liability does not apply here for the reason that the State is estopped, by the acts of its officers, from asserting its rights against Bradford. The general rule in this State is that the doctrine of estoppel is not applicable to the State acting in its sovereign capacity. In People v. Brown, 67 Ill. 435, the People brought suit against the sureties on a sheriff’s bond. Defendants claimed an estoppel, on the ground that because of a mistake of the Auditor in stating the sheriff’s account, defendants were prevented from obtaining indemnity against the State. We held the defense of estoppel not available against the State and said: “Its rights, revenues, and property would be at a fearful hazard should this doctrine be applicable to a State. A great and over-shadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine. If it can be applied in this case, where a comparatively small amount is involved, it must be applied where millions are involved, thus threatening the very existence of the government.”
In People v. Woods, 354 Ill. 224, the defendant taxpayer had given the county collector two checks in payment of his taxes, but because of the collector’s negligence they were not presented to the drawee bank until it had failed. We held the State was not estopped and said: “The general rule is that the neglect or omission of public officers cannot work an estoppel against the State (10 R. C. L. 705) and we can see no reason for departure from that general rule in this case.” In People v. Illinois Women’s Athletic Club, 360 Ill. 577, we said that “public policy forbids the application of the doctrine of estoppel to a sovereign State where the public revenues are involved.” We have never held the State estopped, and have never held a municipal corporation estopped in a case involving its revenues.
Appellees cite State v. Illinois Central Railroad Co. 246 Ill. 188, at pages 234, 235. There it was contended the State was estopped from inquiring into the correctness of the railroad’s semi-annual statements. We held the State was attempting to collect revenue acting in its governmental capacity and that public policy requires that the State shall not lose through the laches or negligence of its officers. We then said: “While cases may arise of such a character that right and justice will require that equitable estoppel may be asserted even against the State when acting in its governmental capacity * * * no such showing is made here in the bill as will bring this case within that class.” Appellees argue that this is such an exceptional case. They point out that, here, not only were there acts of negligence and omission but also positive acts on the part of State officers, and that equity and justice demand a departure from the general rule.
We shall consider the acts relied upon as creating an estoppel. The first one is that prior to Bradford’s opening his account , in the Livingston County National Bank, the State Treasurer had refused to accept checks and drafts presented by him. In this the State Treasurer was only complying with the statute regarding the collection of State revenue. People v. West Englewood Bank, supra.
Next, Bradford says that on April 1, 1930, he was directed by the State Treasurer, Auditor of Public Accounts, and the Director of the Department of Finance to deposit for collection, in the Livingston County National Bank, the checks and drafts received by him. The rights and duties of the Director of the Department of Conservation are prescribed by statute. He is not under the direction or supervision of these officers, and it is no defense in an action by the State that they told him to do something he had no right to do.
He then says that January 19, 1933, Governor Horner directed him to procure a cashier’s check for the amount of his deposit, which he did, and on January 20, in the company of Governor Horner, presented it to the State Treasurer. This action by the Governor was merely an attempt to get Bradford to perform his duty and pay the money into the State Treasury, and in no way tends to create an estoppel. Nor is the fact that the State Treasurer did not present the check for payment by the drawee bank until January 23, 1933, on which day the bank closed, important in this case. People v. Woods, supra.
The ground most strongly relied on by appellees as working an estoppel is the institution and prosecution of the suit, by the Auditor of Public Accounts and the Attorney General, against .the receiver of the Livingston County National Bank without notice to Bradford and without making him a party. We do not see how this can be regarded as creating an estoppel against the State. This money belonged to the State and Bradford was merely the agent, who was primarily liable to the State. He could have been sued and held liable for the entire amount. By bringing the suit against the receiver and establishing a preferred claim to the extent the funds could be traced and a general claim for the balance, Bradford’s liability was reduced to that extent. It is not claimed that Bradford was a necessary party to that suit. The Auditor and the Attorney General were the proper parties to represent the State. Bradford claims that by diligence the State could have established a preferred claim for the entire deposit. We cannot go into that, for it would involve a relitigation of the suit against the receiver.
From a consideration of all the facts we conclude that this is not such a case as requires an exception to the general rule that the State, acting in its governmental capacity, cannot be estopped by the acts and conduct of its officers.
The judgment is reversed and the cause is remanded, with directions to sustain appellant’s motion to strike appellees’ answers, except as to the defense of part payment.
Reversed and remanded, with directions.