Appellant brought this action in the circuit court of Stone county against the appellee, O.E. Batson, sheriff and tax collector of that county, and appellee United States Fidelity Guaranty Company, as the surety on the tax collector's bond, to recover the sum of fifty thousand dollars, public funds belonging to said county, and the statutory penalty of thirty per cent thereon for withholding the same; and, in addition, appellant's statutory commission thereon, of twenty per cent, which funds had been by Batson, as sheriff and tax collector, deposited in the Citizens' Bank of McHenry, which bank had failed and gone out of business. The ground upon which recovery was sought is that the Citizens' Bank of McHenry, when the funds were deposited therein, was not a legal depository, and therefore Batson, as such sheriff and tax collector, became and was an insurer of said funds, and liable therefor on his official bond.
A final judgment for appellees was rendered on the pleadings, from which appellant prosecutes this appeal.
To the declaration appellees interposed two special pleas, in the first of which he set up substantially the following facts: That appellee Batson, in depositing public funds in his hands as sheriff and tax collector, acted as a ministerial officer, and had no connection with, or control over, the judicial action of the board of supervisors in the selection of the Citizen's Bank of McHenry as a depository of the county; that it became and was his duty, as such ministerial officer, to report all collections of public funds to the county auditor, and to obey the pay warrants issued to him by such auditor; that prior to the deposit of the funds sued for in the Citizens' Bank of McHenry, the board of supervisors, in the exercise of it judicial functions, selected and designated that bank as the county depository; that thereafter the county auditor, obeying the order of the board of supervisors, *Page 648 issued pay warrants to the sheriff and tax collector, requiring him to pay the public funds in his hands into the depository, the command in which pay warrants he always obeyed; that all such pay warrants were regular in form, and the sheriff and tax collector had no notice that the Citizens' Bank of McHenry was not a legal depository.
Perhaps it would be better to set out the material allegations of appellees' second plea, instead of undertaking to set out its substance: "That the plaintiff should not have and recover of and from this defendant in manner and form alleged in his declaration, for the reason that the board of supervisors of Stone county, Mississippi, by virtue of the laws of the state of Mississippi, were vested with full and complete jurisdiction over the selection of a county depository for Stone county, Mississippi, and by their order duly spread upon their minutes at the January, 1928, 1929 and 1930 meeting of said board, they selected, designated and elected the Citizens' Bank of McHenry as county depository for Stone county, Mississippi, as will appear from copies of said orders hereto attached marked Exhibits `A,' `B' and `C' hereto; that, thereafter, said board of supervisors charged said bank and accepted pay from said Citizens' Bank of McHenry for the privilege of keeping the county funds of said county, in accordance with his bid and the order of said board designating it as depository, which amounts were by the said bank paid and by said board of supervisors received as compensation for the said bank's acting as county depository for said county; that said Citizens' Bank of McHenry was in charge and possession of the office, or quasi office, of county depository for Stone county, Mississippi, discharging its functions as such; made monthly reports as county depository of said Stone county to the said board of supervisors of said county, as required by law; that the said board of supervisors accepted and approved said reports *Page 649 of its said county depository; that said bank likewise made its quarterly reports to said board of supervisors of said Stone county as county depository; that thereafter said board of supervisors accepted and approved quarterly reports of said Citizens' Bank of McHenry as county depository of Stone county, Mississippi; that the said board of supervisors and the chancery clerk, who is also the clerk of the said board of supervisors, and county auditor, recognized the said Citizens' Bank of McHenry as the Stone county depository, held the same out to the public and this defendant as such and required this defendant to deposit its funds therein; repeatedly issued warrants against funds held by said bank as such depository; that the public generally understood that said Citizens' Bank of McHenry was the county depository for said county; that it was so treated by the officers of Stone county, by the officials of the state of Mississippi, and by the public generally, and irrespective of whether or not the said bank had in fact filed a bond or received a commission, as such county depository, this defendant and the public had no notice that said bank had filed no bond, and it was by reason of its said acts, and the acts of the officers by law required to pass on its qualifications, so held out as such depository, and the said bank was the de facto depository of Stone county, Mississippi, with whom this defendant as tax collector of Stone county dealt, and deposited public funds therein, believing it to be the county depository, duly qualified, without any knowledge of the failure of said bank to file a bond; that this defendant is, therefore, protected by reason of the fact that the acts of the said Citizens' Bank of McHenry, in receiving funds from this defendant as tax collector, and the acts of the board of supervisors of Stone county, and the county auditor, receipting therefor, were in fact as effective and binding as if said Citizens' Bank of McHenry had filed a bond. Therefore, *Page 650 this defendant is not liable for any funds deposited in and held by said bank, as alleged in plaintiff's declaration, and plaintiff should have and recover nothing in this, its suit against this defendant. All of which he is ready to verify."
The orders of the board of supervisors selecting the Citizens' Bank of McHenry as the county depository for the years 1928, 1929, and 1930, which were made Exhibits A, B, and C to the second special plea, are in substantially the same language except as to the year. The order for 1928 follows:
"The matter of designating a depository for the funds of Stone county, Mississippi, for the year 1928, coming on for consideration, and it appearing to this board that there are two bids on file for the keeping of said funds, that of the Citizens' Bank of McHenry, Mississippi, proposing to pay two per cent interest per annum on daily balances, including the account of the tax collector, and that of the Bank of Wiggins, Wiggins, Mississippi, proposing to pay two per cent interest per annum on daily balances, and it appearing to the board that both bids are equal;
"It is therefore ordered that the Citizens' Bank of McHenry, and the Bank of Wiggins be, and they are both hereby designated as depositories for the year 1928, interest to be paid to the county, as per their bids, and their commissions are directed to be issued as is required by law.
"It is further ordered that all funds of the county including the tax collector's account are to be cleared through the Citizens' Bank of McHenry, and that when and as often as the tax collector makes his report of funds collected, and there is a deposit made, the Citizens' Bank of McHenry is hereby directed to then and there turn over to the Bank of Wiggins fifty per cent of said fund. *Page 651
"It is further ordered that all warrants are to be drawn on Citizens' Bank of McHenry and that as the account decreases during the year then the Bank of Wiggins, as county depository is hereby directed to turn over to said Citizens' Bank of McHenry by the warrant of the clerk of the board of supervisors, funds belonging to the county, when called for by said Citizens' Bank of McHenry, in order to at all times keep the funds of the county that are deposited in both banks as near equal as possible.
"The matter of fixing the bonds of the county depositories of Stone county for the year 1928, coming on for consideration, it is ordered that said banks designated as county depositories for Stone county for the year 1928 be, and they are hereby directed to file with the clerk of this board of supervisors of Stone county, Mississippi, as security, as such surety bonds, certificates of indebtedness or other securities as is required by law, with such assignments to the county of Stone of such certificates of indebtedness, bonds, etc., as is necessary.
"It is further ordered that from time to time as the balances of the county funds on deposit in the county depositories shall decrease, the clerk of this board is hereby directed or authorized to surrender to said depositories said certificates of indebtedness, or other securities, in lots of five thousand dollars each, provided that at no time the total certificates of indebtedness, bonds or other securities be less than ten per cent more than the total amount of funds belonging to the county on deposit at said depositories."
Appellant demurred to the special pleas, on the ground that they were insufficient in law. The demurrer was overruled, and, appellant declining to plead further, a final judgment was rendered in appellees' favor. It is from that judgment this appeal is prosecuted.
It is conceded by appellees that the Citizens' Bank of McHenry was not a legal depository for Stone county for the years 1928, 1929, and 1930, being the years during *Page 652 which the public funds sued for were deposited therein by appellee Batson, as sheriff and tax collector of the county. The bank was not a legal depository, because it failed to put up the security required by the statute, and no commission had been issued to it as such depository, as provided by law.
The appellant contends that under the law the sheriff and tax collector, in paying the funds in his hands into the bank, did so at the peril of the bank being a legal depository, and, the bank not being a legal depository, he was an insurer of such funds. On the other hand, the appellees contend, and the trial court took that view, that the bank having been recognized by all the public authorities as the county depository, and having acted as such, it was a de facto depository, and the sheriff and tax collector, having no knowledge of its illegal selection, was protected in his dealings with it.
The pertinent provisions of the Code chapter on depositories are as follows, being the same in the Code of 1930 as appeared in Hemingway's Code of 1927 (section 4739 et seq.):
Section 4340, Code of 1930, provides for the establishment of county depositories. Section 4341 provides for the publication of bids from banks for the privilege of acting as depositories. Section 4342 provides that, where no bids are submitted, the board of supervisors shall readvertise for bids. Section 4343 provides that, where no bank in the county bids, there shall be a readvertisement by the board in adjoining counties and in a daily newspaper published at the capital of the state. Section 4344 provides that the state treasurer shall aid the board of supervisors in the selection of a depository. Section 4345 provides a penalty for obstructing bids of proposed depositories. Section 4346 provides how a bank may qualify as a county depository; it requires that the bank shall put up as security for the public funds deposited with it registered bonds of the state, Yazoo Mississippi delta levee district bonds, Mississippi levee *Page 653 district bonds, county and municipal bonds of counties and municipalities of this state, state of Louisiana bonds, bonds of the city of New Orleans and state of Louisiana levee bonds, United States bonds, Mississippi drainage district bonds, bonds of any consolidated school district or road district in this state, certificates of indebtedness and notes of this state, which bonds, notes, and certificates are legal, or surety bond of any surety company authorized to do business in this state, in an amount ten per cent greater than the maximum amount of the public funds. Section 4347 provides that, when a bank is selected as a county depository, the president and clerk of the board of supervisors shall issue to such depository a commission; and section 4348 prescribes the form of the commission. Section 4349 forbids that, when any payment of county funds shall be made into a county depository, the county depository shall give receipts in triplicate to the person making such payment, specifying the authority under which the payment is made, one of which shall be immediately mailed to the county auditor, and that any person paying money into a county depository shall, before paying the same, receive a pay warrant from the county auditor allowing him to make such deposit; and that no depository shall receive any funds unaccompanied by such pay warrant. Section 4350 requires that every county depository shall, at the regular January, July, and October meetings of the board of supervisors of the county, and at such other times as the board may require, make to the board a detailed report of all money received by it, and the disbursements therefor, so that such receipts and disbursements shall clearly and distinctly appear, and shall exhibit with its report the vouchers for the disbursements charged therein, etc. Section 4351 provides that, in making his settlements, the sheriff and tax collector shall pay the amount due the county to the county depository according to law "and the rules of the board of supervisors," and in making deposits he shall receive duplicate receipts for the *Page 654 same, and shall mail one to the clerk or the county auditor, and the depository, upon demand, shall issue its official receipt therefor.
The original of the present section 135 of the constitution provided, among other things, that there should be selected for each county in the state a treasurer. The 1924 amendment of that section of the constitution abolished the office of county treasurer. The section, as amended, provides that "the duties heretofore imposed on the county treasurer shall be discharged by some person or persons selected as required by law." The County Depository Statute was authorized by that amendment. The result is that the county depositories, in a very large measure, take the place of the county treasurers, and perform the duties theretofore performed by them. It is true that a county depository is not a public officer in the sense of the constitution, still it is a quasi-public officer. In Perkins v. State, 130 Miss. 512, 94 So. 460, 463, the bank had not been legally selected as a municipal depository; it had no right to act as such. The sureties on the bank's depository bond sought to escape liability because the bank was not a legal depository. In discussing the question, among other things, the court said:
"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 preserved 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 became 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 *Page 655 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."
In State of Kansas v. U.S. Fidelity Guaranty Co.,81 Kan. 660, 106 P. 1040, 26 L.R.A. (N.S.) 865, it was held that a bank selected as a state depository was the financial agent of the state, and a quasi-public official. In Board of Com'rs of St. Louis County v. American Loan Trust Co., 75 Minn. 489, 78 N.W. 113, the court held that, where a bank had been selected, and acted, as a county depository, the sureties on its depository bond could not raise the question of the legality of its selection; that they were estopped to deny that the bank had been legally designated as a depository, upon the ground that it acted as a de facto depository.
State, Use of Bragg, v. Basham, 77 Miss. 688, 27 So. 996, 997, involved an analogous question. Basham, the appellee in that case, was sheriff of Monroe county. Bragg, the appellant, was convicted of a misdemeanor, and after conviction was turned over by the sheriff to the county convict contractor, and while in the custody of the latter was seriously wounded by an employee of the contractor. Bragg sought to hold the sheriff liable for the injury, upon the ground that there was no county convict contractor, because the person acting as such had failed to give the bond required by statute. The court held that nevertheless he was a de facto county contractor, and the sheriff was not liable for his tortuous act. The court used this language in that case:
"The county contractor is not like the sheriff and many other officers, required to execute bond `before entering upon' the discharge of his duties. The board of supervisors contract with him, and look after his bond.
"This contractor had been appointed, claimed to be county contractor, was recognized and acting as such, and was dealt with as such by the sheriff. The sheriff was not required to see, under these circumstances, if at *Page 656 all, that he had given bond; and the failure to execute the bond is the whole ground for attempting to hold the sheriff and his sureties liable for this outrageous tort of the county contractor's employee. He was at least de facto county contractor."
Although a county depository is selected by contract with the board of supervisors, its duties and obligations are fixed, to a very large extent — almost exclusively — by the Depository Statute, as will be observed from the provisions of the statute above referred to in this opinion.
In McClure v. Whitney, 120 Miss. 350, 82 So. 259, the court said that the essential difference between an employment and an office is that in an office the duties and powers are prescribed by law, and in an employment the duties are prescribed by the contract of employment. The county depository has many of the elements of an office, instead of an employment. It is truly a quasi-public office.
In view of that status, was the sheriff and tax collector of Stone county entitled to invoke the principle of law applicable to officers de facto, namely, that the acts of a de facto officer are to be upheld as valid so far as they involve the interests of the public and of third persons?
In determining this question it might be well to consider what it takes to constitute a de facto officer. A person is a de facto officer who exercises the duties of the office which he professes to occupy: "First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like. Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was *Page 657 a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth. Under color of an election or appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such." 22 R.C.L., page 558, paragraph 306.
And a mere usurper of an office, without any color of title whatever, who has for a considerable time exercised the powers thereof, with the acquiescence and recognition of the public authorities and the public is a de facto officer. 46 C.J., page 1058, paragraph 373.
The common-law rule is that the acts of such an officer are valid, so far as the interests of the public and of third persons are involved; and if an official person or body has authority to appoint to public office, and apparently exercises such authority, and the person appointed enters on and performs the duties of the office, his acts will be upheld in respect to the public which he represents, and third persons with whom he deals officially, notwithstanding there was a want of power to appoint him in the person or body which professed to do so. The practical effect of the rule is that there is no difference between the act of a de facto and a de jure officer, so far as the public and third persons are concerned. The principle is placed on the ground of public policy, and for the protection of those having official business to transact, and to prevent a failure of public justice. Third persons, from the nature of things, cannot always investigate the rights of one assuming and holding public office. 22 R.C.L., pages 601, 602, paragraph 324.
Our statute, section 2899 of the Code of 1930, providing that the acts of a public officer exercising the functions of the office are valid and binding as official acts in so far as they concern the public and third persons, is therefore only declaratory of the common law. Our court so held in Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169. *Page 658
We are unable to see why these principles of the common law should not apply with equal force to a quasi-public officer, especially where the duties and obligations of such quasi-public officer are as extensively fixed by law as the duties of county depositories are fixed by our statute. Such duties and obligations are public in their nature, not private. As stated, county depositories, to a very large extent, take the place of county treasurers. They are required to receive, safely keep, and disburse, according to law, the public funds of the county, and to make reports of such receipts and disbursements to the board of supervisors at stated times. The Citizens' Bank of McHenry, it is true, on account of its failure to put up the required security, and to receive a commission from the president or clerk of the board of supervisors, was not a legal depository of the county. Nevertheless, all public authorities, both state and county, having occasion to do so, for three years dealt with it and recognized it as a legal depository of the county. The sheriff and tax collector of Stone county was required by the board of supervisors to so deal with it. He dealt with the bank as county depository in good faith, believing, and having every reason to believe, that it had become a legal depository of the county. We think it would be an onerous burden on, and a manifest injustice to, the tax collector, to hold that he acted at his peril in dealing with the bank as a depository; that it was incumbent on him, before paying the funds in his hands into the bank, to see whether or not it was a legal depository.
Appellant, to sustain his position, relies upon State v. Lee,72 Miss. 281, 16 So. 243, and other like decisions by our court, which held that a public officer having public moneys in his hands is an insurer of the safety thereof, and is only relieved from responsibility by an act of God or the public enemy. Those decisions have no application where the officer has legally placed the funds in his hands in the custody of some officer or public agency designated by law as the proper custodian thereof. Those *Page 659 cases apply only to funds lost by a public officer, either while they were in his possession, or where he had disposed of them in a manner not authorized by law. Take, for illustration, the case of State v. Lee, supra. Lee was the tax collector of the city of Greenville. The mayor and financial committee of the city council, who constituted a majority of the city council, authorized him to deposit the funds of the city in a bank. This was done, the bank failed, and the funds were lost. Whereupon the state revenue agent brought suit for the benefit of the city against the tax collector and his bondsmen to recover the funds. The court held the tax collector and the sureties on his official bond liable — that the tax collector was an insurer of the safety of the funds. But the court stressed the fact that the action of the mayor and the finance committee in directing the tax collector to deposit the funds in the bank was without authority of law. There was no statute or ordinance authorizing them to select a depository for the city. It was the duty of the treasurer to safely keep the funds himself. That would have been a very different case if there had been any authority of law for the action of the mayor and finance committee in directing the tax collector to select a depository for the funds.
Affirmed.