Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN June 14, 1939 sbr. A. 5. Bickerson
County Auditor
~~ontgomary County
Conroe, Texa.a
Dear Mr. Hiolcer8oll:
Q the above afat& rsful eonsideretfon, te te be the wrraot %rlmmr to yo
tiontotwu Art
0 shall aeitheP other things, grwidea that the word et3 a aerp0rati0zk. Fwthemore, it has held the ror12 "parson - islelndes rarporation rlthin the meaning of the due proasas elause oil the P&iesal Gem- at~tntlon,
MT. A. E. Hiokereon, June 14, 1939, Fage 2.
the faithful pertonnanos of all duties and obligations Ue- the depository, TOlring by law and for payment, upon Upon prerentation of all checke drawn upon such dtposltory by the County Treasurer of the oounty, and that the oounty*s fund8 *shall be falthfully~kept by said depository and ao- for l ocordlng to law.' And Artlole 2828 of the counted Clvll Cods prorldee, in cffoct, thnt abroh depository is Oonstituted the *TreasumrW of all school funds of the oopnf7.
In the aase of P;ennspln County v. Stats Bank, 64 Klnn. 180, 66 N.W. 143, the Suprene Court of b:lnnesota stated:
Vepoeitories of county funds imder the statute are quasi publio offiaera. They are financial custo- diana of the ooimty, and hold Its in place of funds the Treasurer.- And It m-as held by the Suprene Court of Alabama: "In ocmmon aooeptenoe of that term, a depository is a oontraotee with ministerial performanoe duties, of xhloh mar be ompelled in proper oases by the writ of emndamua.” (Flret Natlonal Bank vs..Terry, et al, 83 So. 170.1
Tha &her aeotion of the Constitution which we think is here applloable is Seotlon.20 of ArtiOle 5, whioh provides : WQ person who at anr time ma7 have been 0f taxes, or rho may have bean other-
a collector vise entrusted with publio money, shall be eligible to the Legislature to any office of profit or trust under State Oovornmnt, until he shall have obtained a discharge for the amount of suoh oolleotions, or for all pub110 moneys with whioh he may hnve been entrusted."
Whlle the title to pub110 funds whfoh have deposited with a depository bank passes to the bank, yet, as above shown, the depository is under the legal duty to for suoh funds. The liability Of 8afely keep and account depository 1s a aontlnuing one and does not cease un- til the seleotlon of a new depository and the giving of the bond bT latter, or until 80 days after the time fired for the appointment of a suooessor. Article 2529, R. C. S.
1925. Therefore, It follows 8s a Protter of oourso,
Mr. A. E. Hlokaraon, June 14, 1939, Page 3.
within the meening of the Constitution a bank whioh la 8 oeunty depository oannot be dlaoharged of lta llablllty as ous- todlan of publio fund8 60 long aa the bank hold6 that poaltlon.
The last above-mentioned aeotlon of the Constl tu-
tlon was construed In oase of Orendorff v. State (C.C.A.), 108 8. 1. (26) 206, and It was held a parson who had that been entrusted with pub110 funds, to-wit, a aherlff, was ln- l llglble to flll,the atfloe of County Com&laaloner 80 long lm was under the duty of dlacharglng his llablllty by a6 of hle hsving the oustodlsn of such funds. The reason oourt, In pert, said:
*It (the Constltutlon) olearly lnoludee every person who may bare been entrusted with public money. It was wlthln the knowledge of the Constl- tutlon vast mm16 of money would be entrusted, that of neoesalty, to others tax oolleotora; and than the language used waa broad enough to oover them all, State and County Treaaurera and treesurere of. other political l ubdlvlalona of the State, Offloera that reoelve monal In behalf of the and Departments State and lta politloal aubdlvlalons, sherlffa and otherm.n
It therefore alearl apkara a oounty depoai- inoludad within language and purpoas of thla tory la aonatitut3onal provlalon, if for no other reaaon than #oh001 fund6 of the oamon aohool ia the Treasurer oftlm it dlatrlota of the oountr. It la not to be queatloned.thet auoh dlatrlcta are polltloal aubdlvlslona.
If it be auggaated that neither of the quoted aeo-
tlona af the Constltutlon are applloable to the question under diaouaalon for the reanon that the oaahler of a d@po~ltOTy bank Is not per ate the bank euoh depooitory, and that, therefore, he la under no oonatitutlonal restraint so feT aa hi6 ellglblllty to be oounty auditor la oonoeraed, we think aufflolent answer to auoh auegeotlon la thet a bank- ing oorporatlon oen only act through Its proper offleers.
A cashier of a National Bank la the ereoutlve offloer of the bank who transacts Its dally affalra and through wham, uaual- 17, all of its flnsnoial obllgatlona sr8 conducted. See National Bank of Oreenvllle v. Cotton 011 CO., 60 Flrat ” S. H. 828 (C.C.A.)) Hewitt V. Fir& National Bank, 252 S. r. .In th? laat oltea oase the stated, bourt
161 (Co% App.).
r ’ 23. A. - _. Vlckerson, June 14, 1929, ?aga 4. or his orriolai
that the oashlar of bank &thin the aaope dutlea Is the bank.
In the offort to determine whethar or not a constltutionnl lfmitatlon or'othar provision la appli- oablo to a gltan oasc, ooneld4ratlon must bs given to rule that the literal words of the Constitution carry with thez oartaln raaronable and neoaeaary implications. see ?h~!tn~ V. K%:grrs, 120 Tex. 383, 40 5. ':r'. (?a) 31, 36; Croat Southern Llfs Ins. CO. t. City of Auatln, 112 Tax. 1; 243 s. p:. 770; City 0r Dsnlson v. Eunioipal Gaa co., 257 6. 77. 616 (C-A.), Alfinned by Supre>la Court, 3 L; ::. (2d) 794.
In the last cited ease the court on rshearing, speaki% through Justloa Loonay, says:
*The doctrine of lm~llcd pov;,ers and restraints is roll known to the law or oonstltutional conatruo- ti on. It raeults fron the fact that it is never practicable In a Constitution to apaoify in detail all its objeots and purposes, m the meana of oarry- ing thea into execution; therefore, constitutional posrers are granted or prohibited in general terms, fro= ?:hich ~lmplied pov;ars and prohibitions necaa- aarilr arise.'
KS think, thererore, that what a bank in its oor- porata entity Is rorbiddan under the Constitution to do, the cashier of the balut may not do, unleaa and until he dls- associate% himself from his oonnaotion with the bank.
The statut~rrelatln~ to the offi04 of oounty auditor are ArtiOlOB 1645 to 166S, inclusire, 8. C. S., lees. Frosn theBe etatutss it appears that the oounty audl- tor has general supervision of all books and records of all oifloerE'of county, district and state, who may ba auth- orlzad or raqulred to receive or 0ollJot money, runde,r434
or ot&r property for the use of or belowI% tt the oounty; that he shall eae to the striot enforooumnt of ths laws ~ovsmlng county finances; that ho has oontinual,aooeas to and shall exanina all booh, accounts, reports, vouchers and other records and all arralrs relating to finances ae the county; and without girlog any pravlous notioo, ha shall exazlne fully the condltlon of and ins&mot the oash in the hands of iha county traosurer In the &I& in whloh ha my h:,vs placed same for safekeeping, not leas than onoe in each quarter, and he shall see all bal- anoea to the credit of varlous,funde are actually on hand in oash.
.
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Mr. A. E. Riokaraon, Juno 14, 1939, k’age 5.
Considering statutrs, ralatl~ to tharerqre, dutiaa of oounty auditor8 and those relating to the bat148 and obligations of the oounty depository, w4 must, n4oeasarIly, oonoluds that If ths cashier of a depository bank were per- mitted 6t the aama tIma to fill the orrlos or county auditor, he would be placed in the position of being raqulxsd to peas judgment upon the book%, aooounta and othar derlnsd aota of the oounty d%pOBItOry, which are In legal offeot his book%, aooounta and mote. It was to prorsnt just auoh Inorrapatiblo forogollrg situations provision% ware writton Into tho Constltutlon of this State.
In an opinion by a rcrmar Attorney General of this
State, which was rendered on February $27, 1919, It was hald ol a bank, whloh was a depository of school that the oashlar funds, oould not be appointed to the OrrlOa Or oounty eohool trustee. In a oonisrenoa opinion rondsrod on Soptembor 16, roramer Attorney General of thlr 1929, It was held by another or.. a oorporatioa an orrioial &ate that a etockholdsr for an Independent ahloh was the depository school dietriot, waa lnaliQ1blo for appointment or eleotion aa truetoe of amid school dl strlot. Thoss opiniona wore upon rolated subjects to the ~OXWJ that we am now called upon to anewor, exoapt that It la believed that t:‘e instant ease proaants at the sma conolusloa. stronger roesons r0r arrlring
It follows from what bas been aaid that It lr the
opinion of the Attorney General the aashler of,ths bank which Is oounty deposltory Is InellgIble to be appointed oonnty auditor ct the ama county.
Yours wiry tzulr ATTORNEYGZWRAL OFTEXAS BY ;%pf* First Assistant* gorn~~Gonaral ‘I