Colquitt v. Simpson & Ledbetter, 72 Ga. 501

72 Ga. 501 | Ga. | 1884

Jackson, Chief Justice.

The bank of Rome was made a depository under the act of 1879, and gave a bond, with sureties thereon, to account for all money entrusted to it as such depository. The governor, under the act, issued execution against it and the sureties, which was levied on property claimed by defendants in error. The jury, on the trial of the claim, found the property subject. The court granted a new trial, and the state excepted.

1. These claimants hold title from Samuel, the president of the bank, not as president, but individually. ' The law informed them that the bank was a state depository. They knew that Samuel was its president, and that it had to give bond and security. That was enough to put them on inquiry whether he himself was not one of the sureties he had, as president, to procure. Therefore, they were not purchasers without notice of the state’s lien.

2. Nor do we think that the fact that M. P. Deason did not sign, but her name was forged to the bond, protects them. Their grantor or vendor was the chief officer, the president of the bank; it was his duty, not only to make the bond, but to furnish the sureties ; he did execute it as president for the bank, and as surety individually, before Mrs. Deason’s name appeared upon.it as surety, and he could not ask to be relieved from liability because the name of one of the sureties which he furnished was upon the bond, forged by some one, and not signed by her.

Being charged with notice that he was surety, these claimants stand in his shoes, and can make no defence which he could not make. Therefore, we think that the court erred in granting a new tidal to Simpson & Led-better, on the ground of the alleged forgery of the name of Mrs. Deason as Samuel’s co-surety.

3. The only remaining question is this: Is the bond such an instrument as can be executed by summary process by the executive of the state ? That depends upon the answer to the question, whether the act of 1879 has been substantially complied with, so as to make it a valid bond under that act which created these bank depositories, and prescribed the mode of the execution of the bond, a.nd the remedies which the state might use in enforcing the bond against the parties to it, in case of breaches thereof.- *

We do not regard these depositories of the money received from the treasurer or collectors of taxes, in the districts fixed by law for collectors to pay immediately to them, as public officers of the state, in the sense of that term as used in the Code, from section 148 to 171, inclusive. A bank can hardly be called an officer. It cannot well be tried for misdemeanor and punished, under section 156 of the Code; and the entire chapter appears to us to be dealing with individuals, not banks. It is true, that the act of 1879, section 943 (d) of the-Code, does use the term “during their continuance in office,” and the act amendatory thereof, pamphlet laws of 1882-3, p. 136, in the second section thereof, uses the words, “ the governor shall declare said office vacantbut the word '‘office” is uséd in the sense of place, position, agency, and not, we think, in the sense that it is a public officer. In the very same section of the act of 1883, the words used are, “ and the governor may declare the position vacant,” thus using the two words as synonymous. The truth is that these banks are mere depositories of public money. They are somewhat like the Bank of the United States was, a depository of funds of the government for safe keeping; or, as certain state banks were for a time, under the administration of President Jackson, similar depositories. But no one would therefore rationally call either the old United States bank, or the state banks so used as depositories, public officers of the United States. They were agencies to keep the public money of the United States, and these are agencies of our treasury system, in like manner, to keep our public money; but the corporation in the one case was not a public officer of the United States, and in the other, these corporations are not public officers of this state. They are paid no salary under the act of 1879, but the governor is to make terms with them for the use of the state’s money. They are to pay such interest as the governor, by “ the most advantageous contracts he can ” make, may be able to secure from them. Public officers, the treasurer for instance, are prohibited from making interest or other profitable private use of public money by the constitution. ■ Code, §5124. “ If the state treasurer, or any other officer of this state, shall use, directly or indirectly, the money of this state, such officer shall be deemed guilty of a felony, and on conviction shall be punished by imprisonment in the penitentiary, for any time not less than five, nor longer than twenty years,” is the emphatic legislative act of the same session of the legislature of 1879, which organized these depositories. Code, §4425 (a). How inconsistent it would be that the same legislature should pass an act to punish public officers for doing that which it was made the duty of the governor to contract with them for doing! It is clear, therefore, that they are not public officers, as understood by the general assembly which created the depositories. It follows that these depositories are instruments or agencies sui generis and sui juris, standing on their Own law, embodied in the act of 1879, codified in sections 913 (a) to-943 (g) inclusive, of the Code of 1882, and the amendatory act of September 28, 1883, pamphlet, p. 136 ; Laws, p. 138.

It folloAVS, too, that the principles ruled in the case of Mayo, sheriff, vs. Renfroe and Wilson, 66 Ga., 408, on the law relating to bonds of public officers, in that part of the Code from section 148 to 171, have no application to this bond. It stands or falls on the acts above cited, Avhich alone controls it. Except that it refers to the treasurer’s bond in respect to its “ binding force and effect,” and the provision that “ it shall be enforced in like manner,” it draws from no other law, and its validity and enforcement summarily will be found in sections 91 (a) and 97 (b) of the Code, taken from the act of 1876, pp. 127, 132. Section 91 (a) provides that “ a lien is hereby created in favor of the state upon the property of the treasurer to the amount of said bond, and upon the property of the securities upon his said bond to the amount for which they may be severally liable, from the date of the execution thereofand section 97 (b) provides that upon its breach, “ it shall not be necessary to sue his official bond, but the governor is hereby authorized to issue a f. fa. instanter against the treasurer and his securities for the amount due the state by the treasurer, Avith the penalties and costs.”

Therefore, what is said in that decision as to the time with •. in Avhich that bond of Renfroe was filed, or its execution Avithin forty days from his election, or as to the time prescribed by law for its record in the office of the secretary of state, or in regard to the oath required of each surety in respect to what he was worth, and its being attached to the bond, and in regard to the construction of section 167 upon the point whether it gives a summary remedy, though the bond be not a valid statutory, but only a common law bond, has no application to the case at bar.

So far as that case is concerned, the court, as now constituted, think as the court which then unanimously decided, that the judgment could not have been otherwise than as rendered. The special legislation which fixed the amount due, and required the execution to issue for that sum, was enough of itself to sanction that judgment as absolutely demanded by the constitution itself.

The question here is, was this bond executed in such manner as to make it a valid bond under the act of 1879 ? For the amendatory act of 1883 was passed long after its execution, and does not affect its validity or enforcement.

That act of 1879 requires that it be in the-sum of fifty thousand dollars. It is in that sum. It is to be approved by the governor. It is approved by him. It must “ be conditioned for the faithful performance of all such duties as shall be required of the depository by the general assembly or the laws of the state, and for a faithful account of all the public money or effects that may come into their hands during their continuance in office.” The condition of this bond is, that the bank “ shall faithfully perform all such duties as shall be required of it by the general assembly or the laws of this state, under the act of October 16, 1879, or any further act of said general assembly of Georgia on this subject of state depositories, and shall faithfully account for all the public moneys or effects which may come into their hands during the continuance of said bank of Rome as such state depository, under the act before cited as passed or to be passed; and further, that said Bank of Rome shall well and truly do and perform all and singular the duties required of it by law as state depository, either by act of October 16, 1879, or any future act of the general assembly of the state of Georgia on the subject of state depositories, according to the trust reposed in it.” It is thus seen that the condition of the bond is not only in the terms of the act, but it amplifies and enlarges them.

Lastly, the bond by the statute is “to be filed and recorded in the executive office, and a copy thereof certified by one of the governor’s secretaries, under the seal of the executive department, shall be received in evidence in lieu of the original in any of the courts of this state.” Within what time it is to be filed and recorded is not specified in the act. It is recited, in the executive order appointing the bank, that it was approved by the governor, and it is recited, in the execution issued by the governor and signed by him with the seal of the state, that it “ was duly filed and recorded as required by law.” And one of the secretaries certifies that the copy in evidence is “ a true copy of the original bond of file in this office.” It is true, that he also says in the certificate that there is no entry on it of filing, recording or approval. The statute does not require that entry to be made on it. It is enough that it be done; and that it was accepted and approved by the governor, and of file in the executive office, is beyond all dispute ; and there is no evidence that it was not recorded ; but the evidence goes only to the point that no entry of record was on it; and no such entry upon it was required. The recital by the governor, under the seal of the state, is sufficient evidence that the facts existed, unless overcome by proof to the contrary. Besides, it could be recorded nowhere but on the minutes of the executive department, and the filing therein made it as accessible to the public as such record would be. The object of recording is its preservation and the ease of making a copy when necessary. So that claimants were charged with constructive notice of the bond and sureties thereto.

We hold, therefore, that the bond was executed and accepted and approved and kept in the executive office in substantial compliance with the law. That it was executed a little before the appointment of the bank can make no difference. It was done in view of the appointment, and had to be executed and approved before it could enter upon the discharge of duty.

We are therefore of the opinion that the verdict of the jury in the case was right, and as the law of the case was given to the jury substantially in accordance with the views of the case hereinbefore expressed, and there is no error therein which could operate to make the verdict otherwise, we must reverse the judgment which granted the new trial.

Judgment reversed.

Cited for plaintiffs in error: 66 Ga., 408 ; 1 Id., 580 ; 3 Id., 542 ; 6 Id., 552 ; 9 Id., 316 ; 5 id., 570 ; 44 Id., 437 ; 60 Id., 478 ; 62 Id., 142, 187 ; 10 Id., 417 ; 11 Id., 286 ; Code, §§135, 154, 155, 156, 167, 169 ; 11 Wheat, 188 ; 1 Peters, 318 ; 3 Mason, 446 ; 33 Ala., 692 ; 4 Id., 403 ; 62 Id., 404 ; 64 Id., 122 ; 23 Tenn., 487 ; 1 Ware’s R., 212 ; 49 Iowa, 576 ; 16 Wallace, 1 ; 2 Metcalf, (Ky.), 617 ; 53 Me., 284; 10 Cent. Law Jour., 176; Brandt on Suretyship, 358 ; 63 Mo., 216 ; reviewing and qualifying, 52 Mo., 75; 51 Me., 506 ; 3 O. St., 307 ; 6 Gray —; 3 Bush, 562.

For defendants: 17 Ga., 522 ; 54 Id., 83, 43; 47 Id., 427 ; 43 Id., 9 ; 52 Id., 658, 560 ; 6 Id., 202 ; 55 Id., 287 ; 33 Id., 332 ; 10 Id., 414 ; 56 id., 439 ; 64 Id, 740 ; 63 Id., 486, 540 ; 10 Pet., 596 ; 7 Wheat, 46 ; 5 S. & P, (Ala.,) 326 ; 2 Johns. Chan., 182, 604 ; 3 Wend., 208 ; 14 Am., 389 ; 25 Id., 706 : 29 Id., 371 ; 33 Id., 372 ; 28 Am. Dec., 680 ; 21 Am. R., 46 ; 11 Am. Dec., 111 ; 9 Am. R., 445 ; 5 Id., 446; 21 Wall., 657 ; 51 Mo., 133 ; 62 Ill., 12 ; 44 Iowa, 537 ; 6 Exch., 89 ; 12 Wall., 47 ; 3 Bush, 361 ; 22 Ind., 399 ; 27 Ill., 173 ; 32 N. Y., 453 ; 4 Watts (Pa.) 53 ; 16 Wallace, 5; 53 Mo., 516 , 3 Ala., 88 ; 52 Mo., 75.