Branch v. The United States. tion it is required by law or by direction of the Secretary of the Treasury to perform any financial duties for the United States, it then becomes a special agent for the particular purpose required, with no power to bind the government beyond the special authority conferred upon it. In short, constituting a National bank a depositary of public money is an employment of the institution for business purposes, as it is employed by individual depositors, and not an assumption of its powers and liabilities by the National government, nor the making of it, as an institution, a part of the United States Treasury. Under the provision of the post-office laws, now no longer in force, allowing "all official communications addressed to either of the Executive Departments of the government, by an officer responsible to that department," to be sent free through the mail, it was early held by advice of the Attorney-General, that the officers of designated depositaries, under the general banking law, were not officers responsible to the Treasury Department, but were officers of the banks, responsible only to the institutions themselves, and so their correspondence on official business with the Secretary of the Treasury could not be carried free by mail. 11 Opins. of Attys.-Gen. 23. The United States Treasury proper, as constituted by what is commonly known as the "independent treasury" act, first passed July 4, 1840 (5 Stat. at Large, 385), repealed August 13, 1841, and again re-enacted with additional provisions August 6, 1846 (chap. 90, 9 Stat. at Large, 59), is a depository of public money, where the actual money of the government-gold, silver, bullion, notes and currency is kept in kind, as received from the public revenues, or deposited there by express authority of law, and where it remains the specific property of the government, and cannot be intermingled with other funds, as the Treasurer is not authorized to permit other money to be deposited therein, except in special cases expressly provided for by statute. And the "Sub-Treasuries," commonly so called, under the charge of assistant treasurers, where the public money is received and kept under like regulations, as well as the mints and perhaps other like places of deposit, may, in a general sense, be considered as parts of the United States Treasury. Rev. Stats., §§ 3591, 3592, 3593, 3594, 3595, etc. It is made the duty of the Treasurer, all assistant treasurers, and those performing the duties of assistant treasurers, all collectors of customs, all surveyors of the customs acting as collectors, all receivers of Branch v. The United States. public money of the several land-offices, all postmasters, and all public officers of whatever character, to keep safely any public money intrusted to them, without loaning, using, converting to their own use, depositing in banks, or exchanging the same for other funds than as specially allowed by law, and severe penalties are attached to any breach of such duty. Rev. Stats., §§ 3639, 5489, etc. But when public money is deposited with a designated-depositary National bank, it is not there retained in kind as the special property of the United States, of which the bank is made the custodian, but it becomes at once the property of the bank; is mingled with its other funds, is loaned or otherwise employed in the ordinary business of the corporation; and the bank, instead of being a custodian of public money, becomes a debtor to the United States precisely as it does to other depositors on receipt of individual deposits. Such was the practical construction adopted immediately on the designation of National banks as depositaries of public money, after the passage of the National Banking Law, and ever since uniformly followed without question. The government has the same rights and remedies against the bank as other creditors have. If the bank fails, the United States resort to the collateral security, if any, given to secure the deposits of public money to the extent of the proceeds thereof, and if, after that is exhausted, a balance due for deposits remains unpaid, the government takes its dividend thereon, with other creditors, and is entitled to no priority or preference, if the construction given in opinions of the AttorneysGeneral who have advised the executive officers on that subject be correct, which has not been judicially determined. 12 Opins. of Attys.-Gen. 549; 13 id. 528. By section 3640 of the Revised Statutes it is provided that "the Secretary of the Treasury may (except as to money belonging to the postal service) transfer the money in the hands of any depositary of public moneys, to the Treasury of the United States, to the credit of the Treasurer." Thus it is manifest that designated-depositary banks are not made part of the Treasury of the United States proper, rendering the government liable for the safe-keeping or repayment of the money deposited therein, to the credit of the customers of those institutions. As to its own public money intrusted thereto, it relies upon the credit of the corporations, and the securities taken Branch v. The United States. as collateral, of which the one is subject to the vicissitudes of the institutions, and the other to the care and vigilance of the public officers. Such money, or the credits therefor, when under the control of the Treasurer of the United States, and subject to his draft, may, to that extent, and in some sense, be regarded as in the public Treasury, and other government money deposited there to the credit of other public officers charged with its receipt or expenditure, may be considered as public money, although not in the Treasury. The term "public money," as used in the statutes of the United States, ordinarily means the money of the government, received from the public revenues or intrusted to its officers charged with the duty of receiving, keeping, or disbursing the same whatever it may be. Such money, when illegally obtained therefrom, may be followed by the government into the hands of the wrong-doer, and recovered as a debt due from him, with the preference over other creditors in the distribution of his assets in case of insolvency given to the United States by statute. Bayne et al. v. The United States, 94 U. S. Reports. It does not include the money of States, counties, cities and towns, although with reference to those governments and municipalities such funds in other connections would be deemed public money. Nor does it include money in the hands of the marshals, clerks, and other officers of courts, held by them under authority of law, to await the judgment of the court in relation to the ownership thereof. Such money constitutes trust funds held by individual litigants, and not for the public, as represented by the government — money which cannot be used by anybody until the rightful ownership is determined, and when deposited in any bank is at the risk of the true owner, or of the officer depositing it, according as the latter has or has not legal authority for substituting the credit of the bank for his own custody thereof. The term is thus used in the act originally establishing the Treasury Department, passed September 2, 1789, chap. 12, § 6 (1 Stat. at Large, 65), in the acts of July 4, 1840, chap. 41 (5 Stat. at Large, 385), and August 6, 1846, chap. 90 (9 Stat. at Large, 59), establishing the "independent treasury," in all of the numerous revenue and fiscal acts of Congress found in the Statutes at Large, as well as in the Revised Statutes, where it forms one of the principal divisions of the laws in that volume, as the fortieth title. Rev. Stats., §§ 3591, 3659. Branch v. The United States. From the year 1814 to the present time, there have been special provisions of law for the deposit and safe-keeping of money paid into the District and Circuit Courts of the United States, different from those applicable to public money. By the act of April 18, 1814, chap. 62 (3 Stat. at Large, 127), money paid into said courts to abide the order of court, was required to be deposited in such incorporated bank as the court should designate, and there remain until it should be decided to whom it of right belonged. If there were no such bank in the district, the court might direct the money to be deposited according to its discretion. By the act of March 3, 1817, chap. 108 (3 Stat. at Large, 395), all money paid into said courts or received by the officers thereof, in cases pending therein, was required to be deposited in a branch of the United States Bank, if there were one in the district, to the credit of the court, and to be drawn only upon the order of the judge, and if there were no such branch bank in the district, then in some incorporated State bank, and if there were neither in the district, then it was to be deposited according to the discretion of the judge. These acts remain still in force, still requiring officers of courts to deposit in State banks their trust funds, long after it was made a penal offense for "all public officers of whatever character" to deposit in any bank the public money collected by them (act of 1846, chap. 90, § 6, 5 Stat. at Large, 60) and after the passage of the general banking law of June 3, 1864, by which National banks might be made depositaries of public money; and they were not repealed until the year 1871. Chap. 2, § 6, 17 Stat. at Large, 2. Such was the statute law so far as applicable in 1866, when the money now in question was deposited in the First National Bank of Selma. There being no branch bank of the United States in existence, the clerk was bound by law to deposit the money in an incorporated State bank or otherwise, according to the discretion of the court. He had no right to deposit it anywhere to the credit of the United States Treasurer, nor in the public treasury to the credit of anybody. It was required to be deposited as a private credit within the exclusive control of the court. In selecting a National bank, the clerk was no doubt acting under the direction and according to the discretion of the court, as he was bound by law to act, influenced perhaps by the circular of the Secretary of the Interior, giving notice that the First National Bank of Selma had been designated as a depositary of public money. That circu Branch v. The United States. lar, however, did not change the legal duties and obligations of the courts, or the officers thereof, or of the banks named therein, and it created no liabilities whatever on the part of the United States. The clerk did not attempt to place the money in the United States Treasury. He intrusted the funds in his custody to the safekeeping of the bank, and took the obligation of that corporation and not of the government. The bank became his debtor, and the United States were neither creditors of the bank nor debtors to the depositor on account thereof. The government not only did not receive the money, but could not have recovered it by action nor have obtained possession of it by any process. It will be noticed that the facts proved do not show and the petition does not allege that the Secretary of the Treasury had taken any security from the bank for this deposit, or for the deposit of any public money therein, and that it does not appear that he was ever notified or ever knew of this deposit having been made by the clerk of the court. Under all these circumstances, nothing can be more clear than that the defendants are not liable in an action for money had and received, or in any other form, for the safe-keeping and return of money not belonging to the United States, nor intrusted to any of their officers, but deposited by the clerk of the court in the First National Bank of Selma, in his own name and to his own credit. Since the rights and liabilities of the parties in this case, arising from the transactions set forth in the findings, were fixed, Congress has made new and different provisions, by the act of March 24, 1871, in relation to moneys paid into the courts of the United States, expressly repealing the acts of 1814 and 1817, above referred to (Rev. Stats., §§ 798, 995, 996, 5504, 5505), but not repealing the provisions in relation to money in the hands of assignees in bankruptcy. Rev. Stats., § 5059; 14 Opins. of Attys.Gen. 362. By the law now in force, all money paid into any court of the United States, or received by the officers thereof, in any cause pending or adjudicated therein, must forthwith be deposited with the Treasurer, an assistant treasurer, or a designated depositary of the United States, in the name and to the credit of the court, unless it is delivered upon security according to the agreement of parties, under the discretion of the court, as it may be by virtue of a proviso in the act of 1871, re-enacted in Revised Statutes, sec |