Perkins v. State ex rel. Roberson

94 So. 460 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

Statement oe the Case.

The original bill as amended was filed in this case by the State Banking Department, on the relation of Frank Roberson, attorney general of the state, appellee, against the city of Gulfport and B. R. Perkins and others, appellants, sureties on two depository bonds executed by the Bank of Commerce of Gulfport as municipal depository for said city, to recover of such sureties by subrogation to the rights of the city of Gulfport something over forty thousand dollars which appellee paid said city out of its bank guaranty fund, being the amount the city would have lost on account of the insolvency of said bank except for such payment. Appellants filed demurrers to the bill, which demurrers were overruled, and thereupon this appeal was granted to settle the principles of the cause. It will probably be well to set out here the original bill as amended. Leaving off the formal parts, it follows:

“(1) That the said Board of Bank Examiners is a board created by the laws of the state of Mississippi, and that E. F. Anderson, S. W. Wardlaw, and J. B. Salmon are the duly elected, qualified, commissioned, and acting Bank Examiners of said state, and that Frank Roberson is the duly elected; qualified, commissioned, and acting attorney-general of the state of Mississippi.

“(2) That the Bank of Commerce of Gulfport was a banking corporation, organized under the laws of the state of Mississippi, with its domicile at Gulfport, Harrison county, Miss., and that said bank, for many years prior to December 14, 1916, carried on a general banking business in said city of Gulfport, and that on said date of December 14, 1916, said bank, being insolvent, was taken charge of by the said Board of State Bank Examiners for liquidation under the banking laws of the state of Mississippi; said board last aforesaid took charge of all the property and assets of said bank, and undertook to and did liquidate the affairs of said bank in a diligent, honest, and expeditious manner, as required by the state banking laws, and at the instance of the officers of said bank.

“(3) That on the 14th day of December, 1916, the city of Gulfport, in the name of its then tax collector, had on deposit in said Bank of Commerce of Gulfport, Miss., the sum of fifty thousand three hundred nineteen dollars and forty-nine cents of the public moneys of the said city of Gulfport, Miss.

“(4) That, at the time said moneys of said city of Gulf-port was deposited in said bank, and at the said time said bank was taken charge of by said Board of State Bank Examiners, and at all other times during the years 1915 and 1916, the said Bank of Commerce was the depository of said city of Gulfport.

“(5) That, under and by virtue of a decree of the chancery court of Harrison county entered on the 6th day of July, 1917, in the case of City of Gulfport v. Bank of Commerce of Gulfport and J. S. Love, Liquidator, No. 5288, which decree was by the supreme court of Mississippi affirmed on April 22, 1918, the said Board of State Bank Examiners of said state, on the 17th day of June, 1920, paid to the city of Gulfport out of the ‘bank depositors’ guaranty fund’ the sum of forty-one thousand three hundred eighty dollars and fifty-four cents on account of its deposit heretofore referred to, the assets of said bank not having been sufficient to pay said sum.

“(6) That the said Bank of Commerce was, on January 6, 1914, selected as the depository for the funds of said city of Gulfport, Miss., for the years 1914 and 1915, and that said bank did not execute a bond in favor of said city with reference to said deposit until October 7, 1915, at which time a bond, purporting to have been signed on September 24, 1915, was, by the mayor and commissioners of said city of Gulfport, being the officers so authorized to do, approved and accepted, a copy of said bond being hereto attached, marked Exhibit A and made a part hereof, said selection of said bank as the depository aforesaid being m'ade after due notice of the purpose of said city to select a depository for its funds had been made.

“That on December 13, 1915, the mayor and commissioners of said city of Gulfport made publication in the Gulfport Daily Herald, a newspaper published at Gulf-port, Miss., to the effect that the board of city commissioners would, on the 4th day of January, 1916, receive bids from banks to act as depository of the funds of said city for the year 1916, and that, pursuant to said advertisement and publication of said notice, the said Bank of Commerce was selected as such depository, and as such depository executed and turned over to said city of Gulf-port a bond in the penal sum of fifty thousand dollars, a copy of which said bond is hereto attached, marked Exhibit B, and made a part^hereof.

“(7) That at all times during the years 1915 and 1916 the said Bank of Commerce of Gulfport, Miss., was insolvent, and could not at any time have paid its depositors in full the amounts of their respective deposits. That the amount on deposit in said bank on January 14, 1916, and for more than twenty-four months previous thereto, and at the time the said Bank of Commerce qualified as depository under and by virtue of Exhibit B hereto, was the sum of fifty thousand three hundred nineteen dollars and forty-nine cents of the funds of said city of Gulfport, Miss. That the complainants do not know what part of the depositors could have been paid on the said date of January 14, 1916, or at the time the said Bank of Commerce qualified as depository for the year 1916, but they state the fact to be that said bank, at the time that it qualified as a depository for the city of Gulfport under Exhibit B hereto was insolvent, and could not have paid the deposits of the city of Gulfport had it been called on so to do.

“(8) Complainants further state that the moneys of the said city of Gulfport, during the years 1914, 1915, and 1916, were deposited as aforesaid in the said bank, and that the bonds as set out in Exhibits A and B were executed to and in favor of said city of Gulfport for the purpose of guaranteeing, to the city of Gulfport the payment of the moneys so deposited as aforesaid.

“(9) Complainants further state that, on December 14, 1916, previous to the time said bank was taken charge of by said Board of State Bank Examiners, said city of Gulfport, through its duly authorized officials, demanded of said bank the payment of said deposits above referred to, at that time being in said bank, but that said bank did not and could not, on account of its then insolvent condition, pay said deposit.

“(10) Complainants further state that, by virtue of the obligations assumed bv the persons signing the said bonds, as shown by Exhibit A and Exhibit B to the bill of complaint, said city of Gulfport had the legal right to demand of the sureties on said bonds the payment of the deposits aforesaid. The complainants state that the said city of Gulfport proceeded to file suit in the chancery court of Harrison county, being case. No. 5280, against the Bank of Commerce and the Board of State Bank Examiners, seeking to have the said Bank of Commerce and the Board of State Bank Examiners ordered to. pay said deposits; that a decree was granted ordering the said Bank of Commerce and the said Board of State Bank Examiners to pay said deposits, which was done by the payment of twelve thousand six hundred six dollars and fifty cents out of the liquidated assets of said bank, being all that could be realized from said liquidated assets, and the sum of forty-one thousand three hundred eighty dollars and fifty-four cents out of the 'bank deposit guaranty fund;’ the total of the two said sums being equal to the principal of said deposits and interest thereon. It is further stated that the assets of said bank at the time it failed, taking into consideration the double liability of the stockholders as an asset, was insufficient to pay the deposits of the city of Gulfport and the common depositors of said bank, that the assets of said bank were insufficient in the amount of approximately one hundred thousand dollars for paying the city of Gulfport i'ts deposits and the ordinary depositors their deposits, although it is conceded that, at the time said Bank of Commerce was taken charge of by the Board of State Bank Examiners, the assets of said bank were sufficient to pay the city of Gulfport, but were not sufficient to pay both the city of Gulfport and the common depositors, the assets of said bank, including the double liability of stockholders, being insufficient for said purpose in the amount of approximately one hundred thousand dollars.

“ (11) Complainants state that, said Board of State Bank Examiners, having been forced to pay said sum of forty-one thousand three hundred eighty dollars and fifty-four cents, to the said city of Gulfport, covering its deposits and interest thereon, out of the guaranty fund, the state of Mississippi, acting through the said Board of State Bank Examiners, is entitled to be subrogated to the rights of the said city of Gulfport with reference to the said bonds, and the sureties thereon, as shown by the Exhibits A and B hereto, for the purpose of reimbursing the state bank depositors’ guaranty fund to the extent of the disbursements aforesaid.

“(12) Complainants further state that one J. K. Milner signed the bond referred to as Exhibit A, and became bound by the obligations therein assumed, but that the said J. K. Milner is deceased, and that the defendant Mrs. Rachel Milner is the administratrix of the estate of the said J. K. Milner, deceased.

“(IB) That the said city of Gulfport is made a party hereto, for the reason that the complainants claim to be subrogated to the rights of said city of Gulfport with reference to the said bonds aforesaid, and the deposits secured thereby, and that said city of Gulfport is made- a party defendant for no other purpose whatever, and no money judgment is sought to be obtained against the said city of Gulfport.

“(14) Wherefore complainants pray that proper process issue for the said defendants, commanding them to appear at the next regular term of this honorable court and plead, answer, or demur to this bill of complaint, but not under oath, the oath or oaths to any answer or answers being hereby expressly waived, and that the court appoint a master or commissioner to examine the books and records of the said Bank of Commerce of Gulfport as of the time that the said bank ceased to be the depository of the funds of said city of Gulfport, under and by virtue of Exhibit A hereto, and to ascertain therefrom and to report to this honorable court what proportion of the deposits then to the credit of the said city of Gulfport could have been paid in cash to said city, had lawful demand been made on said bank for the said city’s said deposits, and that on final hearing a decree be entered against the defendants herein, except the city of Gulfport, ordering the said defendants to pay to said complainants the said sum of forty-one thousand three hundred eighty dollars and fifty-four cents and interest thereon at the rate of six per cent, per annum from June 15, 1920, until paid, and, if mistaken in the relief prayed for, then for such other, further, and different relief as the facts set forth may show complainants entitled to, and for general relief, and as in duty bound, complainants will ever pray,” etc.

Opinion of the Court.

The several demurrers raise the question of the legal sufficiency of the bill; and, in addition, some of the sureties on the first bond by their separate demurrer raise the question whether the sureties on that bond are liable, even though those on the second bond are.

We will consider first the question whether as to the bank as principal and its sureties on the two bonds involved the bank became the legal depository for the city of Gulfport; for all other contentions by appellants having any appearance of merit depend on the solution of that question. Answering that question in the affirmative, as will be done, we will then consider whether there is lia-bility on both bonds or only on the second one.

There were involved in the case of Bank of Commerce v. City of Gulfport, 117 Miss. 591, 78 So. 519, these identical bonds, as well as these same deposits. That was a suit by the city of Gulfport against Bank of Commerce and the State Banking Department to establish a preference in favor of the, city under section 3485, Code of 1906 (section 2823, Hemingway’s Code), against the assets of said bank, in liquidation by the Banking Department, for the payment of said deposits. The city claimed that these deposits “were not otherwise secured” in the sense of section 38, chapter 207, Laws of 1916 (section 3596, Hemingway’s Code), and therefore the bank held them as a trust fund under said section 3485, Code of 1906 (section 2823, Hemingway’s Code), because said depository bonds were made by individuals as sureties, and not by a surety company, as required by the state: The court so held, and said that, so far as the city was concerned, the bonds were ultra vires, and that the city was not estopped from so claiming by the acts of its officers in accepting the bonds and dealing with the bank as its depository.' The court, however, expressly pretermitted the question here involved —whether the sureties would be estopped to claim that the bonds were ultra vires. The court said that question was not presented by the record.

The authorities seem to be uniform to the effect that, although a contract with a municipal corporation may be ultra vires, still it is not illegal if not prohibited by its charter; that, while the municipality may successfully interpose a plea of ultra vires when sued on such a contract, the other party cannot set up such a plea to escape liability. St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764, and notes; 32 Cyc. 26. Under our laws a municipal depository is a quasi-public officer. In a very large sense it is treasurer of the municipality. Through it the funds of the municipality are preserved1 and disbursed. Therefore its depository bond may be likened in its purpose and effect to bonds of public officers. Sureties on official bonds are estopped from denying liability thereon where such bonds have accomplished the purpose for which they were executed.

The depository bonds here in question accomplished the effect of their execution and acceptance. By virtue thereof the Bank of Commerce actually become the depository of the city of Gulfport, and was treated and dealt with as such by the city. The bank received the consideration for the execution of the bonds — the municipal deposits — and this consideration moving to the bank was sufficient to bind the sureties. These depository bonds, so far as the sureties thereon are concerned, are to be treated in every respect as if they were legal. It follows from these views that if the city of Gulfport had sued on said bonds the sureties could not have successfully defended on the ground that the deposits in question were secured under section 3485, Code of 1906 (section 2823, Hemingway’s Code), and therefore a preference charge against the assets of the bank. Only the city could make that claim.

The State Banking Department, by virtue of having-paid the city of Gulfport the amount of its deposits remaining in the Bank of- Commerce at the time of its failure, became subrogated under section 36, chapter 124, Laws of 1914 (section 3594, Hemingway’s Code), to all the rights of the city as against said depository bonds and the sureties thereon. Among other things that section provides:

“Provided, however, that whenever the board of bank examiners shall have paid any dividend to the depositors of any failed bank out of the bank depositors’ guaranty fund, then all claims and rights of action of such depositors so paid shall revert to the board of bank examiners for the benefit of said bank depositors’ guaranty fund, until such fund shall have been fully reimbursed for payments made on account of such failed hank, with interest thereon at three per cent, per annum.”

This result seems highly just. The sureties on these bonds agree to indemnify the city against loss on account of its selection of their principal — Bank of Commerce — as city depository. Why should they not carry out their contract? We see no-good reason why they should be relieved.

Are the sureties on the first bond liable or only those on the second bond? This, is solved by the case of Fidelity & Deposit Co. v. Wilkinson County, 109 Miss. 879, 69 So. 865. The second bond covered the year 1916 — the year the bank failed. The city demanded payment of the bank of the deposit due it on the 14th of December, 1916, which demand was refused; thereupon the bank closed its doors, and soon thereafter the State Banking Department took charge of its assets for liquidation. There had been no default on the part of the bank during the life of the first bond. Under that case the bank as depository was a mere debtor to the city, and there was no breach of its depository bond until the city demanded payment and the bank refused it. This occurred during the life of the second bond. No- such demand and refusal took place during the life of the first bond. We hold, therefore, that there is no liability on the first bond, but that there is on the second.

The court below held that both bonds were liable.

Reversed in part, affirmed in part, and remanded.