74 So. 942 | Ala. | 1917
J. G. Oakley was president of- the board of convict inspectors during the year 1912, and up to, to-wit, March 12, 1913. Theo Lacy was chief clerk in the convict department. On March 8, 1913, Oakley, as president, had to his credit on general deposit with the appellee a balance of approximately $40,000. On that day Lacy took to the bank checks and drafts from various parties payable to Oakley, as president, aggregating $103,868.92. These checks and drafts were listed on a deposit slip form on which this appeared: “Deposited with Montgomery Saving Bank, Montgomery, Ala., March 8, 1913. Credit of J. G. Óakley, Prest. * * * Deposited-by Theo. Lacy.” Aside from the date and names quoted, the face of the form was stereotyped. On the back of each of the checks and drafts, the aggregate amount of which constituted the sum last stated, through the use of a rubber stamp, these words were impressed: “For deposit only, James G. Oakley, President.” And on the back of each check or draft,
Code, § 6480, provides: “The president of the board of inspectors shall superintend the management of the convicts, and all subordinate officers, persons, or guards. It shall be his duty to see that the laws in relation to convicts and the rules of the board of inspectors are enforced; and his orders shall be obeyed by all contractors, officers, guards, and convicts. He has the general oversight of all the officers and convicts and of the land and other property belonging to the several prisons; he may sell by order of the board any personal property not needed at any prison and cover the proceeds into the state treasury to the
There is another insistence on the part of the state predicated of the ruling of this court in Alston v. State, 92 Ala. 124, 9 South. 732, 13 L. R. A. 659, wherein it was ruled that the general deposit by an officer of a check made payable to him in discharge (when paid) of money due from the drawer to the state or county for a license to carry on a certain business was a conversion of the funds thus, in consequence of the check’s payment, passing to the general credit account of the officer on the books of the bank to which it was delivered for collection and credit, the action being against the officer to recover the sum, the bank having failed after the general deposit had become effective. The doctrine of that decision is not applicable to the case under consideration. If the bank involved in the Alston Case had actually paid the funds there in question to, or back to, the officer, and the bank had been sued for the money, this court would then have been invited to express its judgment upon the legal effect of circumstances that are present on this appeal, but which were not involved in the Alston appeal. That decision is without bearing on the questions determinative of the case at bar. There is also argument rested upon considerations that are suggested by inquiries necessarily arising where it is sought to bind the state by acceptances of checks or drafts by officers in attempted full discharge of demands in favor of the state. The determination of this appeal does not, in our opinion, involve, in
As we have indicated, the determinative question on this appeal is whether the delivery of the funds and values to the chief clerk, on the order of the president of the board of convict inspectors, was a lawful restoration, a valid delivery, exonerating the bank from liability to account therefor to the state ? A negative response to this question would require, necessarily, the affirmation that in the circumstances surrounding the possession of these funds or checks thus resulting from the conduct of the business of the convict department imposed on the bank the imperative, unavoidable obligation to pay or to deliver them to the state treasurer; that official being, if the president of the convict board was not, the only authorized receiptor or custodian of the funds or values belonging to the state. No positive law to which reference has been made, or which has been discovered, imposed that restrictive duty upon the bank, as the sole means whereby it could acquit itself of liability to account to the state. So far as we are advised, there was no law requiring payment or delivery of funds derived from the operations of the convict department to the state treasurer except through the process defined in Code, § 6499, and none that would have authorized the state treasurer to receive funds from the service here in question otherwise than through the method prescribed in Code, § 6499. If, as appears, there was no authority whereto the bank could refer a payment or delivery of these state funds to the state treasurer or to which the state treasurer could refer as warranting his receipt of these funds, derived from the operations of the convict department, it would seem to be quite clear that the process for surrendering these funds, and thereby acquitting the bank of accountability therefor, was to pay or deliver such property of the state to the official from whom it was received by the bank, or to whom the bank’s possession thereof was attributable; the act of so paying or delivering being free from mala fides. But the stated inquiry is not, in our opinion, alone answerable through this method of eliminative deduction. The convict department is in a large sense a commercial enterprise. By Code, § 6515, a wide discretion is committed to its directors in the hiring or employment of convicts subject to its
“It is insisted that the matter of handling the funds of the convict department, in view of the provisions of the statute requiring all accounts to be paid to the president of the board, and requiring him to make quarterly settlement, is a personal trust committed to the president which he must perform in person. The general rule of law is that, when duties of a judicial nature, such as involve the exercise of judgment or discretion, are conferred upon a public officer, the right to perform such duties cannot be delegated to another, in the absence of an express grant of*373 authority. — Meeehem on Public Officers, § 566; 36 Cyc. 859. But mechanical or ministerial duties may be delegated to deputies, clerks, or assistants. — Meeehem on Public Officers, § 568; 36 Cyc. 859; Throop on Public Officers, §§ 569, 570. Where the law provides a clerical force to perform the ministerial duties of a department prescribing their duties in general terms, as in the case of the convict department, any duty of a ministerial or mechanical nature such as receiving, accounting, paying into the proper channels, and keeping a record of the funds of the department, in the absence of an express provision prohibiting it, is within the range of the authority of the clerical force.
“The law clearly contemplates that money belonging to the state will be brought into the state treasury through the convict department, and while it requires all moneys due the department to be paid to the president of the board of inspecors, and requires him to make quarterly settlement with the state auditor, it clearly contemplates that a complete record and strict account of all such funds shall be kept by the clerical force in the office of the president, and to that end necessitates counting and handling of cash by that force under the supervision and ‘direction’ of the president. — Code, §§ 6480, 6485, 6498-6500.”
It results from the foregoing considerations that no error prejudicial to the appellant underlies the amount of the judgment here under review. Since the defendant (appellee) should have prevailed in the court below, and since the damages awarded the plaintiff (appellant) are nominal only, the judgment will not be reversed. It is hence affirmed.
Affirmed.