156 Ga. 348 | Ga. | 1923
Lead Opinion
(After stating the foregoing facts.)
One of the vital questions in this case is, what is the proper relation of the Bank of Chatsworth to the County of Murray and the public, under the arrangement by which it received and was to pay out the money arising from the sale of the bonds of the county issued for the purpose of the improvement of the public roads and the building of public bridges in that county, and arising from the contribution by the United States government toward the cost of Project 178? It is insisted by the bank that the relation between it and the county is the ordinary one existing between a bank and a depositor of funds therein. On the other hand, it is the contention of the petitioner that the relation between the bank and the county is that between a public officer, entrusted with the receipt, safe-keeping, and expenditure of the public funds of the county. If this relation was to be gathered solely from the terms expressly written into the contract, a copy of which is set out in Exhibit A, and nothing more appeared, then we would have to sustain the contention of the bank. On the face of the contract, and disassociated from certain laws to which we shall refer, the relation between the parties was that of a bank and its depositor.
Thus construing this contract, the hank became a depository of this road fund of Murray County. But what about the deposit by the county in this bank of the $29,000 furnished by the Federal government to the county in part payment of the costs of Project 178? The'circumstances under which this sum was deposited in the bank are. not alleged in the petition as amended. In the amendment the plaintiff alleges that the bank, in addition to the $100,000 received from the sale of the county’s road;bonds, “also
Is such depository a quasi-public officer? The duties of the depository of funds of this county under this local act are the same duties which were discharged by the county treasurer before the latter was abolished. Such “depository shall keep the accounts of the county, receive and pay out the moneys of the county on proper vouchers approved by the board of supervisors of roads and revenues of said county.” Ga. Laws 1919, p. 706. These were the principal' duties of the county treasurer. Civil Code (1910), §§ 574, 576; Smith v. Outlaw, 64 Ga. 677. This court has held that a county treasurer is a public officer. Bradford v. Justices, 33 Ga. 332; Massenburg v. Commissioners, 96 Ga. 614 (23 S.
The Bank of Chatsworth, having been selected county depository of the road funds of Murray County, thus became a public officer of said county, against which mandamus will lie to compel it to pay a warrant drawn on such funds by the board of roads and revenues of said county, which succeeded the board of supervisors of said county, if such depository improperly refuses to pay such warrant. This court has held that mandamus will lie to compel a county treasurer to pay a warrant, drawn upon him, when payment thereof has been improperly refused by that officer. Coleman v. Neal, 8 Ga. 560; State v. Bell, 9 Ga. 334; Shannon v. Reynolds, 78 Ga. 760 (3 S. E. 653); Neal Loan &c. Co. v. Chastain, 121 Ga. 500 (49 S. E. 618); Civil Code (1910), § 5440. It follows that mandamus will lie against a county depository whose duties require him to receive and pay out county funds on proper vouchers.
This brings us to consider the question whether the petition makes out a case for a mandamus absolute against the defendant. A great many reasons are urged to show that the petition for mandamus does not state a case which entitles the plaintiff to a mandamus absolute. Some of these contentions, such as that the relation between the bank and county was that merely of bank and depositor, that the county depository is not a public officer, that it is not alleged that there is a general depository in the county, that it is not alleged that there was any other contract between the county and the bank than that set out in Exhibit A, that the •$100,000 was deposited with the bank as a depository, and that such depository was not made the guardian of the county funds to the same extent as a county treasurer, have been disposed'of by what is said above. Some, such as that it is not alleged that the contract between petitioner and the county was in writing and
The resolution directing the clerk of the county commissioners to issue this warrant expressly .states that it is to be drawn “on the road fund at the Bank of Chatsworth.” The claim for which the warrant issued had been audited by this board, and its justness acknowledged, and the liability of the county fixed by this formal resolution. The petition further alleges that the county authorities had set apart a sufficient amount of the road fund in the possession of the county depository for the payment of this claim. Under these circumstances the presumption arises that the county depository had on hand, at the date of the issuance of this warrant
We do not construe the statement in the petition, that the bank, on the presentation of this warrant for payment, entered thereon, when it refused its payment, a memorandum of insufficient funds, as an admission or allegation by the plaintiff that such memorandum was true. On the contrary we construe the petition as denying the truth of this memorandum placed upon the warrant by the bank. For do we construe the petition to set up that the fund properly applicable to the payment of this claim had been wrongfully diverted by the bank. If it appeared from the petition that the county depository had wrongfully applied all of these funds to the payment of claims to which they could not be rightly applied, then the question would arise whether mandamus would lie against an officer who had misapplied all funds applicable to the payment of a claim, when by reason of such misapplication he was without
Neither are we now called upon to decide the question whether the bank would be liable for the payment of these funds upon checks or warrants of the supervisors for purposes other than the improvement of public roads or building of public bridges, as that question is not raised under the facts of this record.
If the trial judge committed any errors in his rulings upon the grounds of the special demurrer and motion to strike, they are • not of sufficient moment to require a reversal.
Judgment affirmed.
Dissenting Opinion
dissenting. In pursuance of authority granted in article 11, section 3, paragraph 1, of the constitution as amended (Civil Code of 1910, § 6600), the office-of county treasurer in Murray County was “abolished” from and after January 1, 1917. Acts 1915, p. 319. From and after'the' date last mentioned it was made the duty of the ordinary of Mur- ’ ray County to ■“ take charge of the treasurer’s books '. . and all moneys belonging to said County . . and . ; deposit the same in-the safety vaults of some solvent bank in the county,” (Acts 1916, p.-479), ánd'it was the' duty of “the officials having' control of fiscal affairs of the county ” (the board of commissioners of revenues, roads, bridges, and paupers, appointed under the act approved February 21, 1873 (Acts 1873, p. 282), as amended); to
“ An Act to put Murray treasury in charge of the Board of Sup-. ervisors of Boads and Bevenues, an Act to authorize the Board of Supervisors of Boads and Bevenues of Murray County to take charge of the treasurer’s books and all moneys belonging to the said ■ County of Murray, to transact the business of the county through some solvent bank, and for other purposes.
“ Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same, that from and after the passage of this act the Board of Supervisors of Boads and Bevenues shall take charge of the treasurer’s books of said county and all moneys belonging to said County of Murray, and shall deposit the same in the safety vaults of some solvent bank in said county that will pay-the highest rate of interest, on the daily balance. ■ . ,
*364 “ Sec. 2. Be it further enacted by the authority aforesaid, that said Board of Supervisors shall require the bank selected as the depository for the books and funds of the county, to give a good and sufficient bond to indemnify the county against loss.
“ See. 3. Be it further enacted by the authority aforesaid, that the said bank selected as a depository shall keep the accounts of the county, receive and pay out the moneys of the county on proper vouchers approved by the Board of Supervisors of Roads and Revenues of said county, without charge or expense to the county; provided further, that said bank shall render to the Board of Supervisors of the county monthly, itemized statements of all money received or paid out.
“ Sec. 4. Be it further enacted by the authority aforesaid, that all laws and parts of laws in conflict with this Act be and the same are hereby repealed.”
The act of 1917 creating the board of supervisors was repealed, and a board of commissioners of roads and revenues created, upon whom the powers and duties of the board of supervisors devolved. Acts 1921, p. 538. The county having issued one hundred bonds' and sold them for $100,000, for the purpose of improving the public roads, the Bank of Chatsworth located in Murray County,' acting by its cashier, on December 3, 1919, addressed the following bids to the board of supervisors:
“ I, hereby, for the Bank of Chatsworth, submit bid for the one hundred thousand dollars, or any part of same, of the road-bond money, as follows: Will pay 4-%% on the entire amount, or on such part as you may award to us. If this bid is accepted, the money will be subject to check in such amount as you may desire, interest being paid on the remaining balance. If awarded the money, will make surety company bond.
“No. 2: I hereby, for the Bank of Chatsworth, submit bid for the one hundred thousand dollars, or any part of same, of the road-bond money, as follows: Will pay 5% on the entire amount, or such part as you may award to us. If this bid be accepted, the money will be subject to check in such amounts as you may desire, interest being paid on the remaining Balance. If awarded the money under this bid, will make personal bond. Attached herewith, statement of the condition of the bond [bank?] above named, on the close of business Nov. 28th, 1919.” The bid No. 2*365 was accepted, and on December 10, 1919, the bank executed a bond with personal sureties, as follows: “Know all men by these presents, that the Bank of Chatsworth as principal, and R. M. Gudger, B. A. Gregory, T. L. Gregory, T. H. Keith, J. I. Hall, and A. J. Keith as security, are held and firmly bound unto the County of Murray in the sum of one hundred thousand dollars, for the payment of which, truly to be made, we bind ourselves jointly •and severally, and our assigns, heirs, executors, and administrators firmly by these presents, waiving, each for himself and family, all homestead and exemption laws of this State and the Hnited States, and all exemptions in bankruptcy. . . The condition of the above obligation is such that whereas the said principal has received from County of Murray the sum of one hundred thousand dollars, road-bonds money, and has obligated itself to pay thereon interest on all balance of said money remaining from time to time in its custody, during the life of the said deposit of said money, at the rate of five per cent per annum. Now should the said principal herein, the Bank of Chatsworth, faithfully keep and true accounting make íot all of said sum of money, and the interest thereon, to the said County of Murray, without loss thereto, then this bond to be void,, else of full force and effect.” After execution of the bond the bank received the fund. Subsequently at different times, the dates not appearing, the bank received on deposit sums aggregating $29,000, which had been paid to the county by'the Georgia State Highway Department from funds furnished by the Hnited .States Government for aid of roads, bridges, etc. On November 24, 1920, the Hagedorn Construction Company entered into a contract with the board of supervisors of the county, for the construction and improvement of certain public highways. The county became indebted to the construction company, and in 1922, after repeal of the act creating the board of supervisors and establishment of the board of roads and revenues, the latter issued a check against the “road-bond fund,” as follows:
“Date Detail Amount No. 419. $17,725.00
“ On act. of Project 178. $17725.00 Chatsworth, Ga. 3-21-1922 “Bank of Chatsworth, Chatsworth, Ga.
“ Office of Board of Roads and Revenues Murray County.
“Pay out of road bond fund: Pay to the order of Hagedorn Construction Company, seventeen thousand, seven hundred, twenty-five dollars. W. M. Harris, Clerk.
*366 "When endorsed this check becomes a receipt in full of account rendered hereon.”- ' ■
■ On presentation the bank refused to pay the cheek, and wrote across -the back of‘the paper "Ins-, funds Bank of Chatsworth.” On May 3, 1922,. the TIagedorn Construction Company instituted mandamus proceedings against the Bank of Chatsworth, to compel it to pay the check. It was alleged that the bank received sufficient funds from the county, that were appropriated to payment of the' contract price of the work contracted to be performed, to pay such contract price including the amount of the check, and that such amount had not been paid on such work, and the bank should have and was chargeable in law with having sufficient funds to pay the check; also that the bank knew of plaintiffs contract and knew that all of the funds so deposited with it were devoted to improving roads and bridges of the county and could not be lawfully used for any other purpose, and that it was the duty of the bank to pay out the money only for such purposes. The alleged reasons for grant of the writ of mandamus were: (1) That by making the bid and executing the bond and receiving the road-bond fund the Bank of Chatsworth became the duly constituted county depository as to such fund. (2) That under the law the Bank of Chatsworth became in fact the treasurer of the county and became chargeable with the duties of treasurer, and became specially chargeable with the duty of keeping the fund as well as keeping the accounts of the county and applying the fund on proper vouchers approved.by the proper authorities of the county. The exception is to a judgment overruling general and special demurrers to the petition.
A controlling question in this case is whether mandamus is an appropriate remedy to compel payment of the check. It is provided by statute in this State: “ All official duties should be faithfully fulfilled; and'whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there he-no other specific legal remedy for the legal rights.” Civil Code (1910), § 5540. "A private person may by mandamus enforce the performance by a corporation of a public duty as to matters in which he has a special interest.” § 5542. " Mandamus does not lie as a private remedy between individuals to enforce private rights.” § 5441. The section first quoted authorizes the writ to
If it were necessary to deal with the deposit of $39,000, it should be held, in the first place, that the check by its terms was not drawn against that fund; and in the second place, that the money was placed on deposit under the implied contract which usually arises where money is deposited for a bank.to be drawn out on check of the depositor, and that the deposit of' such fund did not make the Bank of Chatsworth a statutory depository under the act of 1919. It did not purport to be a deposit of all the money of the county, but expressly appeared to be a deposit of a specific sum intended to be mingled with general funds of the bank and to be drawn upon by checks of supervisors.' For reasons already in
The foregoing considerations are addressed to appropriateness of the remedy; but if it be conceded that mandamus be an appropriate remedy, the petition as amended fails to allege a cause of action.