I cannot agree with my brethren on the construction placed upon section 4353, Code 1930.
The manifest purpose of this section is to secure, to the holders of county warrants, prompt payment when presented to the depository. The evil designed to be remedied by its enactment was the release of money held by state, county, and municipalities under conditions presented by the statute, so that such money could be in circulation rather than tied up in the treasuries of state, county, and municipalities for long periods of time.
It was the duty of the depository and the surety on its bond to promptly pay the warrants, and, if the money was not available, to promptly place it in such depository so the county warrants could be paid.
In my opinion, the statute intended to give to the public authorities the option to either sell the securities which were marketable, or proceed against the surety company which had signed the surety bond. The surety obligated itself to promptly pay, or see that the depository promptly paid, the county warrants.
It is not always advisable to sell securities on the market at the best price obtainable, rather than to coerce the surety company to pay the money forthwith. *Page 74
The statute here under consideration is to be construed in the light of its history and policies, and is not controlled by the law applicable to private business transactions. Therefore, I think the case of Solomon v. Bank, 72 Miss. 854, 17 So. 383, is not applicable to this suit. If the principles established in that case are applied to public depositories, the sureties could never be sued until the assets of the depository had all been converted into money, and its effects applied to the payment of public deposits.
Securities, such as here involved, at the time the depository failed to meet its obligation, were not readily salable in the markets, and there was no market in Louisville for the ready sale of such securities. The county was not required, in my opinion, to ignore the interests of other depositors in the bank, and to needlessly sacrifice the securities in its possession.
I do not agree that the situation here is such that the services of an attorney were not needed. That is a matter largely resting within the discretion of the chancellor, and I might not be willing, on all the facts, to hold that his ruling was reversible error.
I agree with the majority that this case is not controlled by section 2915, Code 1930, which applies to public officers. A depository is not a public officer, within the meaning of this section.