This action is predicated upon this theory: that defendant Lattimore retained and converted a portion of the Butte county school fund as commissions; that in one instance at least he changed commissions on the general fund for one quarter, and then on the same amount brought forward charged commissions a second time; that during a part of said time he charged commissions on the net amount paid over to him, also on the percentage that was allowedthe Collector, Recorder, etc., that were never received by him; that be charged three per cent. on the whole sums received by him during the first and second years, when the amount received by him in each year was more than $ 50,000.
I. There is but one suit in the name of the People, suing to recover a certain amount by reason of the illegal conversion of certain trust funds. When Lattimore entered upon the duties of Treasurer, he assumed a trust such as an executor or administrator, or any other trustee, whereby he was to discharge the duties of this trust according to law. It was his duty, when he surrendered his office, to have paid over all moneys that he had not legally disbursed, to his successor. This money was a trust fund in which the State and county had a common though unequal interest. The People are trustees of an express trust within the meaning of section six of the Practice Act. They are the parties with whom the contract is made for the use and benefit of other parties. (State v. Moore , 19 Mo. 369; 2 Bennett, 369; Harney, Adm'r. v. Dutcher & Dutcher , 15 Mo. 91; State v. Ruggles , 20 Id. 5.)
II. The officer of the Government cannot allow any greatercommissions, or any commissions other than those designated by law. If he does, it is fraud per se upon the Government. If the Government is bound by the acts of its agent, in a matter where the agent has no discretion, and sureties are released from their liability on official bonds, the door to fraud is thrown wide open. When the law leaves no discretion as to compensation but the rate of commission, and on what commission shall be charged are fixed, neither time nor the action of the Controller ought to protect the principal or his sureties from any liability arising from such charges or commissions. A State is never included in the Statute of Limitations, unless expressly included. Neither is laches imputable to the Government. (State v. Parker , 7 Mo. 194; U. S. v. Kirkpatrick, 9 Whea. 755; Lindsey v. Miller, 6 Pet. 666; People v. Gilbert, 18 Jones, 227; Stoughton v. Baker , 4 Miss. 522; Marion County v. Hewitt , 15 Mo. 604.)
III. The point that Lattimore being discharged by the Controller's receipt, no person has a right to demand or sue for any overcharges of commission, except it be by express authority of the State, or it be done by some officerof the State having general authority to bring such suits, and then such officer is the Controller, if good, could not be urged as a defense to this action on its merits.
This suit is brought in the name of the proper party, to wit:--The People, by its proper law officer. If the District Attorney had no authority to bring this suit for the reason that he had not been authorized by the proper financial agent of Government, that defect can only be taken advantage of on motion to dismiss the same, as where an attorney had instituted a suit without authority. It cannot be pressed on trial. (17 Cal. 431.)
The Controller might be the person to order such investigation and suit as to an acting Treasurer, but this is not that case. The case at bar is against an ex-Treasurer for refusing to pay over all the revenue that was received by him during his term of office, and upon such failure it was the duty of the District Attorney to sue for such defalcation, and not the Controller. (Act of April 29th, 1859, sec. 7.)
IV. The fourth assignment is that the instructions of the Court were wrong as to the percentage Lattimore was entitled to.
The theory of the respondent is, thatunder section three of the Act of April 1st, 1855, (Wood's Dig. 368) that for the first $ 50,000 which the Treasurer receives and disburses, he is entitled to three per cent., and that for all over that, which he receives and disburses during his term of office, he is entitled to two and one per cent., according to the amount so received and disbursed. But the defendant charged three per cent. commissions on the gross amount of all moneys that were collected by the collecting officers, including their fees, which were never received or disbursed by him. In charging his commissions upon funds, he divided the gross net funds into the various State and county funds, and then charged his commissions upon each fund separately. The Treasurer should first have charged the gross net fund with his commissions, and have divided the fund into State and county funds. This commission would be upon the gross net receipts, and not upon each individual fund.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
This suit is thus brought to recover of the first named defendant and his sureties certain moneys received by him as County Treasurer of Butte county--the complaint claiming a given proportion of those moneys as due the State, and another stated proportion as due the county. The complaint charges that the principal defendant refused to pay these moneys to his successor in office. Whether anything is due, depends upon a question of the amount of commissions the Treasurer was entitled to retain.
It seems that the defendant settled with the Controller of State, and had his claim allowed for commissions, etc., and that no complaint has been made of that settlement for several years. No express authority to institute this suit on the part of the State or any of its officers, except the District Atorney bringing this action, has been shown. If we concede that this suit is properly brought in the name of the people, on the relation of the District Attorney, for the money due the county as well as " for the money due the State," and that no authority need be shown from the State or its general officers for the bringing of the suit, still, even with these concessions, it is difficult to hold that this settlement and adjustment of this account, and this long acquiescence on the part of the State Officers, is not, in the absence of any showing of fraud or clear mistake, a good answer to this demand. If this be not so, it would seem to follow that no officer would ever be safe in making a settlement with the State Controller or Treasurer; for years afterwards, any District Attorney might bring his suit and set aside the settlement, and hold the officer to a resettlement of the matters of the account. We think this is not admissible; that if the State is satisfied in respect to this matter, the District Attorney should be; and that it would introduce great confusion to hold that an arbitrary power resided in the District Attorney to unsettle the accounts of a County Treasurer with the State Department, and recover upon the basis of what he may think or show the account, as properly settled, would represent. It is not, by any means, clear that the account was not properly settled by the Controller; but we think it better to hold that that Department is intrusted with the office of making these settlements with the County Treasurer, and that when the settlement is once made, it does not rest with the District Attorney to disturb it, at least, without some special showing of facts not presented here.
Judgment reversed and cause remanded.