In this case there is only the question of whether the District Court erred in dismissing a complaint by the City of Anchorage against William A. Hilton for lack of jurisdiction.

The facts were stipulated:

Notwithstanding this statement, this Court is hampered by the fact that the pleadings were not brought up. It is doubtful whether Hilton is sued as an individual, an officer of the District Court, or as a representative of the United States. There is no clarification of the present status of the money. All these facts are essential to a correct determination by the District Court of the question of jurisdiction.

Inhere is the statement that Austin “caused to be deposited in the office of the Clerk of the District the sum of One Hundred Dollars ($100.00) in full payment of the fine so imposed upon him by the said District Court,” and the statement that the “clerk of the court refused and continues to refuse to pay the sum or any part thereof to” the City. There is also a patent ambiguity in the stipulation.

The City is said to have “demanded that the defendant remit or pay” the sum. Whether “defendant” is Hilton or Austin is shrouded in mystery. If it was Austin, the City should have pursued its remedy by recommitting him until the fine had been paid. If it was Hilton, the demand apparently was made on him as a person.

There is no statement as to what became of the money. Has Hilton the money in his back hip pocket ? Is it held in escrow “in the office of the clerk of the District Court”? One thing is certain, neither the District Court nor the Court of Appeals can assume without stipulation or evidence that the money has been covered into the Treasury of the United States.

The action is not against the United States. The action cannot be against Hilton as representative of the United States.

The action might be interpreted as one to obtain from the District Court directions to its own Clerk properly to apply the money paid into the office of the Clerk.

The action might be interpreted as one against Hilton as an individual on the common count to obtain judgment against him personally for money which was paid into his hands and which belongs to the City of Anchorage.

Upon either of these interpretations, the District Court would have had jurisdiction. The only method of eliminating either as a possibility would have been to have the pleadings amended or to have counsel stipulate or agree in open court as to the theory. Qr a pretrial conference would have defined the issues.

In any event, the dismissal for lack of jurisdiction was error.

This disposes of the case, but, for the guidance of all concerned, this Court will give its views upon the merits. The City is entitled to the money. The criminal proceeding was based upon a violation of the ordinances of the City of Anchorage. This criminal action did not change its character because defendant appealed. The fact that procedurally the cause was, for the protection of defendant, tried de novo in the District Court did not metamorphose it into an action for violation of territorial or federal law. The circumstance that the District Judge had the right on such a trial to fix a different penalty did not authorize the United States to appropriate the fine. With due respect to the ruling of the Comptroller General (36 Decisions of the Comptroller General 411), his ruling is erroneous and seems to be prompted by the admirable administrative purpose of bringing all moneys into the Treasury of the United States.

The District Court could have solved this problem by the simple direction to the defendant Samuel Austin to pay his fine into the City Recorder or Treasurer or to whatever official by whatever name was empowered to receive money in full payment of fines due the City.

Failing that, the District Court has full power to direct the Clerk thereof to pay the money received to the appropriate official of the City.

The controlling statute, 16-1-35, A.C. L.A.1949, provides in part:

The judgment of dismissal for lack of jurisdiction in the District Court cannot be sustained.

Reversed.