¶1 On Rehearing.
¶2 The petitioner insists that in disposing of this case, the court “failed to take into consideration the chief point made by the petitioner — that the petition of the Superintendent of Insurance invoked the jurisdiction of the Montgomery Circuit Court for the protection of a trust."
¶3 The court had this question in mind in holding that “the office of Superintendent of Insurance is a creature of the statute, and his duties are defined by the statute and are purely ministerial,” etc., and we may add, he is not the custodian of the securities, which the statute requires to be deposited with the state treasurer, for a specific purpose. Code 1923, § 2642.
¶4 And his statutory duty in respect to these securities is to see that securities of sufficient amount and value are kept on deposit with the state treasurer, at all times, and direct the sale by the treasurer, in a proper case, of a sufficient amount of such securities to pay judgments obtained against the depositor of the securities, which remained unpaid, and not superseded, after the expiration of thirty days. Code 1923, § 2649.
¶5 The state treasurer is the trustee and the statutory custodian of the securities deposited under the provisions of section 2642 of the Code, and “the decisions seem to indicate a disposition, if not a settled rule, on the part of the courts, to hold that the state official cannot be compelled to turn the deposit over to the receiver, unless the statute either, in plain words or by implication, so directs. The reason underlying such rule is that the state officer has been by law made trustee of the fund for a special use, and in the absence of fraud on the part of the trustee the court has no power to hinder him from performing his trust.” 23 R. O. L. p. 50, § 53; Id., p. 31, § 28; Vandiver et al. v. Poe et al., 119 Md. 348, 87 A. 410, 46 D. R. A. (N. S.) 187, Ann. Cas. 1914D, note 439, 440.
¶6 Application for rehearing is overruled.