72 Miss. 281 | Miss. | 1894
delivered the opinion of the court.
The appellant, who is the revenue agent of the state, brought this action for the use of the city of Greenville against John M. Lee, the tax collector of that city, and against the sureties on his official bond, to recover the sum of $3,373.86, with interest thereon, which, it is alleged, the said Lee received into his hands as tax collector in the year 1891 and failed to pay over to the treasurer of said city, as it was by law his duty to do.
The defendants pleaded to the declaration, but, by agreementbetween the parties, all the pleas were withdrawn, and the cause was submitted to the judge (a jury being waived) upon an agreed statement of facts, and it was stipulated that if the agreed facts constituted a defense, judgment should go for the defendants, but if, on the other hand, no sufficient defense was shown, then judgment should be rendered for the plaintiff, all objections to the form of the declaration and of the right of the revenue agent to sue being waived.
The funds deposited in the banks other than the Bank of Greenville were subsequently paid into the treasury; but, on the twenty-third day of December, 1891, the Bank of Green-ville suspended payment, and the amount of money sued for in this action was lost. Lee had no reason to suspect the solvency of the bank, and the money was deposited therein by him for safe-keeping. With the agreement of facts the defendants filed a written instrument, which, after reciting the fact that the money in the hands of Lee was on deposit in the banks, as above stated, proceeds:
“And, whereas, said John M. Lee says he is ready and offers to turn over said amounts to the treasurer (?) of said city of Greenville, now, we, J. H. Wynn, mayor, and J. P. Finley, O. M. Blanton and W. E. Hunt, councilmen and members of the finance committee of said city of Greenville, desire that said Lee do not turn over said money to the treasurer, and do hereby authorize him to retain possession of the same until we make demand for it. The object of this instrument is to relieve said Lee. and his bondsmen of responsibility only in the event of the failure of any or all of said depositories during the existence of this trust.
‘' W. .E. HUNT,
“ JohN P. Finley,
“O. M. BlaNtoN,
“J. H. Wynn, Mayor.
Finance Committee. ’ ’
“The mayor appointed the following standing committee:
“Finance. — W. E. Hunt, John P. Finley and O. M. Blan-ton.”
The condition of the bond of Lee as tax collector is that he " shall well and truly pay into the city treasury all moneys coming into his hands as tax collector, and shall faithfully discharge all other duties required of him. ’ ’
By the charter of the city the council is composed of the mayor and six councilmen. By the fifth section of the charter it is provided that the ‘ ‘ mayor shall preside at all meetings of the council, and have a casting vote and no other, and in case of his nonattendance upon the meeting of the council, the council shall appoint one of their number chairman pro tern. ’ ’
Section 6 is as follows: “That the mayor shall, at all times, be active and vigilant in enforcing the laws and ordinances of the city, and it is hereby made expressly his duty to inspect the conduct of all subordinate officers of the city, and to give notice of their negligence or violation of duty to the council, and to communicate, in writing, to the council such information, and recommend all such measures as in his opinion may tend to the improvement of the finance, the police, the health, security or comfort of the city; and the council shall have full power to enact all ordinances necessary to carry out such recommendations. ’ ’
“ Section 37. That the city council shall have power to define the powers and duties of all city officers. . . The said city council may also provide for removing any city officer from his office for cause, the accused being first furnished with the charges against him, and being heard, if required, in his defense. ’ ’
By section 35 it is provided that the council shall biennially elect a treasurer, collector, marshal, and attorney.
The questions presented by the record are two: (1) Was the
But little need be said upon either question. The decisions upon the first question are conflicting, but the better view, in our opinion, is that public officers are insurers instead of bailees of the funds which come into their hands by virtue of their office, and are absolutely responsible unless excused by the act of God or the public enemy. The conflicting authorities are noted in Throop on Pub. Officers, 238 at seq. In this state the question has recently been decided. Griffin v. Levee Commissioners, 71 Miss., 767.
It does not appear in the charter of the city, nor is it shown by any ordinance of the council, that authority was given to the mayor and finance committee to interpose either to prevent the payment of the funds of the city by the collector into' the hands of the treasurer, or to permit him to retain the fund on deposit in the banks at the risk of the public. By the charter the council is made the representative body of the city, and by its action alone could the city be bound. 1 Dillon -on Mun. Corp., § 220.
We are not called upon to decide whether, under the grant of power to the council by the sixth and thirty-seventh sections of the charter, authority might have been given to the mayor and the councilmen composing the finance committee to interdict the payment by the collector to the treasurer, and to direct the money to be left in the banks. It is sufficient to say that no such authority was given, and that none, existed. The law pointed out to the collector what should be done with the money, and neither the sureties on the treasurer’s bond nor the mayor and the finance committee of the city could lawfully direct him differently. However solvent the banks may
Reversed, and judgment here.