Opinion of the Court-Budge, J. merit. But they insist that the law has been completely changed by the acts of 1905 and thereafter, which acts are known as the depository laws, and which provide for the deposit in banks of state and county funds; and that while under the Revised Statutes, supra, state and county treasurers were required to keep state and county funds, respectively, in the vaults of the state and county, and were not permitted to place the same upon general deposit or to receive interest upon these funds, yet it is now made not only legal for these officials to deposit public moneys upon general deposit in various banks of the state and receive interest therefor, but it is made their express duty to do so, providing the banking institutions designated by law as state and county depositories furnish bonds in such penal sums as the law provides. They further contend that, by reason of the changes referred to in the policy of the law of this state in this respect, that is, by the enactment of the state and county depository laws, subdivision 4 of sec. 6975, supra, has been absolutely repealed. We are, however, not in accord with this latter contention. That it is now by law made the duty of state and county treasurers to deposit public moneys coming into their hands. as such treasurers on general deposit in certain banking institutions, upon compliance by such institutions with the provisions of the statutes governing such deposits, may be conceded. Yet a violation of those statutes by state or county treasurers, in our opinion, would render them amenable to the provisions of sec. 6975, Rev. Codes. In our view, subdivision 4 of that section was not repealed by the enactment of the state and county depository laws. It is still in force, and applicable in case public moneys should be deposited by state or county treasurers in violation of the law authorizing the deposit of public moneys. Upon an examination of the state and county depository laws heretofore referred to it will be found that no reference is made therein to the depositing of district, city or village funds by the treasurers of such districts, cities or villages. The legislature in the enactment of those laws made no at Opinion of the Court-Budge, J. tempt to change the law governing the deposits of such funds. It therefore becomes important to determine whether or not an irrigation district is a district within the meaning of sec. 6977, supra. It is insisted by counsel for respondent that this section is the same as section 6977 of the Revised Statutes of 1887, and that at the date of the first enactment of this section, irrigation districts were unheard of in this state. This identical question was presented to the United States circuit court of appeals of this circuit, in the case of Continental & C. T. & S. Bank v. Corey Bros. Const. Co., 208 Fed. 976, 126 C. C. A. 64, wherein it was contended that section 5110, Idaho Revised Codes, was merely the adoption of section 5125 of our Revised Statutes of 1887, and that at the time of the adoption of such section the legislature could not have had in contemplation the granting of the lien upon any irrigation system constructed under what is known as the Carey Act, enacted by Congress and approved August 4, 1894, and the amendments thereto. approved, respectively, June 11, 1896, and March 3, 1901, because systems constructed under such acts were unknown at that time and could not have been in contemplation at the time of the adoption of section 5125 of our Revised Statutes. But that court said that this question had been met and decided by the supreme court of this state in Nelson Bennett Co. v. Twin Falls Land etc. Co., 14 Ida. 5, 93 Pac. 789, and Hill v. Twin Falls etc. Water Co., 22 Ida. 274, 125 Pac. 204, wherein this court held that one who contracts to construct canals and works for the irrigation of arid lands under the Carey Act is entitled to the benefit of the lien laws to secure payment to him for such work to the full extent of the title, interests, rights and claims of the company having the construction contract with the state, which decisions the United States circuit court felt bound to follow. (See, also, Smith v. FarisKesl Const. Co., Ltd., 27 Ida. 407, 150 Pac. 25.) We think that the principle announced in the foregoing decisions has equal application to the case at bar, and that, by the adoption of sec. 6977, Rev. Stats., by the legislature in 1909 as Opinion of the Court-Budge, J. sec. 6977, Rev. Codes, the same became the law of this state, and applies to irrigation districts. This court held in the case of Hertle v. Ball, 9 Ida. 193, 72 Pac. 953, that the treasurer of an irrigation district is a public officer of the state. Subdivision 4 of sec. 6975, Rev. Codes, makes it a felony for a public officer to deposit public moneys otherwise than on special deposit, or as otherwise authorized by law. And since there is no provision of law. which authorizes the treasurer of an irrigation district to deposit the moneys of the district except on special deposit, the cases of State v. Thum, 6 Ida. 323, 55 Pac. 858, Bellevue State Bank v. Coffin, 22 Ida. 210, 125 Pac. 816, and First Nat. Bank v. C. Bunting & Co., 7 Ida. 27, 59 Pac. 929, 1106, where this court held that public moneys deposited by a public officer in a bank becomes a trust fund and not part of the estate of the bank, and in case of insolvency of the bank its receiver must treat such fund as the property of the true owner and not of the bank, in our opinion, are in point and control in this case. We do not think that it can be seriously contended that the statutory provisions for depositing state moneys found in sections 127-136, Rev. Codes, as amended, or the provisions for depositing county moneys, found in secs. 1991-2022, Rev. Codes, as amended, have any application to the method of depositing irrigation district money. Nor do we think it will be contended, under the facts in this case, that sec. 2261, Rev. Codes, governing the deposit of municipal funds, will apply to the case at bar. The provisions of the statutes heretofore cited are all of the provisions to which our attention has been directed that have been enacted by the legislature to regulate the deposit of public funds, safeguarding them by penal bonds. The legislature has failed to make any provision for the deposit of irrigation district funds, other than to prohibit by sec. 6975, Rev. Codes (subd. 4), the deposit by the treasurer of such district of the district's funds in any bank, or with any banker or other person, otherwise than on special deposit. Therefore the deposit made by Givens as treasurer of the Nampa & Meridian Opinion of the Court-Budge, J. Irrigation District of the funds of the district in the Bank of Nampa, Limited, was a special deposit. And it became the duty of the receiver of that bank to treat such fund as the property of the irrigation district and not of the bank. The Nampa & Meridian Irrigation District had a right to recover from the Bank of Nampa, Limited, its moneys unlawfully placed on general deposit in the bank by its treasurer, irrespective of the fact that appellant herein had theretofore furnished a surety bond guaranteeing the faithful performance by the treasurer of the district of all of his official duties. That being true, we think it follows that under the subrogation agreement entered into between appellant and the Nampa & Meridian Irrigation District and made a part of the application for preference in this case, appellant is subrogated to all of the rights of the irrigation district, and may maintain this action to recover the funds of said district unlawfully deposited in the bank. In the case of Aetna Life Ins. Co. v. Middleport, 124 U. S. 534, 548, 8 Sup. Ct. 625, 31 L. ed. 537, 542, the court said: "The doctrine of subrogation is derived from the civil law, and 'it is said to be a legal fiction by force of which an obligation extinguished by a payment made by a third person is treated as still subsisting for the benefit of this third person, so that by means of it one creditor is substituted to the rights, remedies and securities of another. . . . . It takes place for the benefit of a person who, being himself a creditor, pays another creditor whose debt is preferred to his by reason of privileges or mortgages, being obliged to make the payment, either as standing in the situation of a surety, or that he may remove a prior encumbrance from the property on which he relies to secure his payment. And in the case of Leavitt v. Canadian Pac. Ry. Co., 90 Me. 153, 37 Atl. 886, 38 L. R. A. 152, the court said: "In accordance with these equitable principles, a surety who has been compelled to pay a debt for which another is primarily liable succeeds to all the rights which the creditor had of enforcing the liability of the original debtor." To the same effect is the case of Wilson v. Wilson, 6 Ida. 597, 57 Pac. 708, wherein this court said: "Sub Opinion of the Court-Budge, J. rogation,' as defined by the leading text-writers and lexicographers, is the substitution of one person in the place of another as a creditor, the new creditor succeeding to the rights of the former; the mode by which a third person who pays a creditor succeeds to his rights against the debtor. Under that definition, when one person, being under obligation to do so, or is interested in so doing, pays the debts of another, he may be subrogated to all the rights, securities and remedies of the creditor." The appellant in this case having paid to the Nampa & Meridian Irrigation District the public moneys of that district which were wrongfully and unlawfully placed upon general deposit in the Bank of Nampa, Limited, of which the bank had full knowledge, under the agreement before mentioned, its relationship to the bank became the same as that of the irrigation district. Counsel for respondent in their brief have very ably submitted and argued additional reasons why the demurrer should be sustained to the application upon the ground that it does not state facts sufficient to entitle appellant to recover in this action. We have carefully examined and considered the points they make, but do not deem it necessary to discuss them in this opinion in view of the conclusions we have reached. From what has been said it follows that the trial court erred in sustaining respondent's demurrer to appellant's application. The judgment of the trial court must be reversed and the cause remanded, with instructions to the trial court to overrule the demurrer and permit respondent to answer, and it is so ordered. Costs are awarded to appellant. Sullivan, C. J., and Morgan, J., concur. |