* Headnote 1. Banks and Banking, 7 C.J., Section 15 (Anno); Deposit, 18 C.J., Section 62. Appellee, Citizens' Bank Trust Company of Marks, filed its petition for a writ of mandamus against appellant, the State Banking Department, to recover an alleged overpayment of assessments against appellee for the years 1920 and 1921 for the benefit of the state bank guaranty fund. The petition was amended. There was a demurrer to the amended petition which was overruled by the court, and the appellant declining to plead further a final judgment was entered ordering a writ of mandamus to issue fixing the amount of recovery at six hundred sixty-nine dollars and sixty-seven cents. From that judgment, the appellant prosecutes this appeal.
The case made by appellant's petition for mandamus is simply this: The appellee qualified (if it could so qualify under the facts to be stated) as county depository of the public funds of Quitman county for the years 1920 and 1921. The statute governing such matters was complied with in every respect, except, it is claimed by appellant, that the surety which signed appellee's bond as such depository had no authority under the law to become such surety. The surety was Planters' Bank of Clarksdale, a banking corporation in this state. Appellant conceiving that the Planters' Bank under the law had no right to become such surety declined in making the assessments for the benefit of the state bank guaranty fund for 1920 and 1921 to recognize appellee as the county depository of Quitman county for the years mentioned.
Section 35, chapter 207, Laws of 1916 (Hemingway's Code, section 3593), amended by section 35, chapter 165, Laws of 1918 (Hemingway's Supplement, section 3593), provides, among other things, that the banking department shall assess against "the average guaranteed deposits, less capital and surplus, of each bank" one-twentieth *Page 591 of one per cent. provided not more than five such assessments shall be made in any one calendar year.
Section 38, chapter 207, Laws of 1916 (Hemingway's Code, section 3596), provides, among other things, that all deposits "not otherwise secured" and all cashiers checks, certified checks, or sight exchange issued by banks operating under the laws of this state shall be guaranteed by the state bank guaranty fund.
Appellees' petition alleged that the bond it gave Quitman county for the years 1920 and 1921 was perfectly solvent; that the Planters' Bank, the surety thereon, was amply solvent at that time and in addition that the Planters' Bank was indemnified against loss by being such surety by means of a private bond executed by P.M.B. Self and others; that this private bond was perfectly solvent and sufficient to cover the amount of said public funds so carried by appellee, and under the law would have inured to the benefit of Quitman county. And that therefore the amount of such public funds should have been deducted from appellees' deposits in making the assessments for the benefit of the state bank guaranty fund; that appellant declined to make such deduction on the ground that appellee was not a legal depository because its surety on its depository bond was not authorized by law to become such. Thereupon assessments were made by appellant against said county funds as not being otherwise secured, which assessments were paid under protest by appellee, and this action brought to recover the same back.
The question in the case is whether or not, under the above statutes, the public funds of Quitman county held by appellee during the years 1920 and 1921 were "otherwise secured."
We think the question was settled in the affirmative byPerkins v. State, 130 Miss. 512, 94 So. 460. It was held in that case that although the bond executed by the depository was unauthorized by law, and that although *Page 592 thereby the bank in question was not a legal depository, nevertheless the public funds were secured by such bond, that the principal and the sureties thereon were liable therefor and would not be heard to say in a suit on the bond for any loss of public funds that the depository was not a legal one. It is true the court held in that case that the funds there involved were also secured by the statutory lien, provided by section 3485, Code of 1906 (section 2823, Hemingway's Code), and that the city whose funds were involved had the right to resort to either the depository bond or the enforcement of such lien under the statute. It was however, plainly held that the unauthorized bond in that case was security for the funds. Being security for the funds, they were otherwise secured than by the state bank guaranty fund.
The court is in disagreement about the other questions argued. It is not necessary to decide them in view of the fact that the question decided disposes of the case.
Affirmed.