48 Ga. App. 74 | Ga. Ct. App. | 1933
(After stating the foregoing facts.) In ground 1 of the demurrer it is contended that the contract between the
In ground 2 of the demurrer it is contended that the plaintiff, as tax-collector, was without authority to make a lawful, deposit, and that he therefore could not enter into a valid contract with the defendants guarantying such a deposit, as such a contract would be contrary to public policy. If the deposit made by the tax-collector in this case was unlawful, the defendant’s contention ,as to the invalidity of a contract in contemplation.of such unlawful act would weigh heavily with us. We are, however, unable to conclude that this act was unlawful, although the act itself is not expressly authorized by any statute. Counsel for plaintiff in error, in his brief, insists that there is no law authorizing a deposit in a bank by a tax-collector except to the limited extent and in the
The plaintiff in error asserts that he must deposit this money hr a State depository, and a deposit of it anywhere else would be illegal and void. We can not agree with able couaasel as to the purpose of State depositories. State depositories were created for the paarpose and as a mearas whereby the tax-collectors could remit money due the State, that is, as a method of payment of money to the State, but to be rased oaaly when the money is due. This construction is evident from the act creating such depositories, as it is provided that upon deposit of money by a tax-collector the bank shall give him a receipt, and that it shall be a good voucher; that a duplicate of the receipt shall be sent by the bank to the treasurer, who shall turn it over to the comptroller to be credited to the tax-collector’s account. See sections 1249 to 1262 of the Civil Code
We think this language fully answers the contention of the plaintiff in error that the deposit by the tax-collector in this case was unlawful. Although that case concerned the duty of a treasurer and not a tax-collector, yet in handling public money their situation is analogous, in that there is no statute requiring them to deposit their funds in a particular place. It must be conceded by all that at some time a tax-collector will have on hand tax money that is neither due to the State nor to the county, and that as an insurer of public money he must take some precautions to protect it. We can not help but be driven' to the conclusion that the transaction would be necessarily tainted with illegality if no bond had been exacted from the bank, or its directors, and no protection whatever afforded the safety of the public funds.
Ground 3 of the demurrer complains that the contract sued upon is void and unenforceable for the further reason that it is against public policy in that it would and did have the effect to create a preference in the event of contemplated suspension or insolvency of the bank, which is violative of the banking act of 1919 (Ga. L. 1919, p. 135; Michie’s Code, § 2366(192)). This is a suit against the directors of the bank and not against the bank. We can not see that the bank has pledged any of its - assets by the contract here made, nor are we able to agree with counsel in his contention. The contract here made is an effort on the part of the directors of the bank to individually guarantee this deposit. We can see no wrong in the contract made, but, granting for the sake of the argument that the agreement entered into- by the directors is- illegal for the reason here alleged, can the directors who were parties to the contract- say, when they are sued for its performance, “the contract is unenforceable as it was wrong for us to make it,” and thereby deny liability thereunder. It would be false logic to
Headnote 3 needs no discussion.
The second and third headnotes fully answer the last three grounds of the demurrer. The case of Town of Douglasville v. Mobley, 169 Ga. 53 (149 S. E. 575), is in no way applicable to this case. The trial judge did not err in overruling the general demurrer.
Judgment affirmed.