I do not concur in the conclusions reached by the majority members of this court in this case, and will here express my grounds of dissent. I think the statement of the facts in the majority opinion, so far as made, is sufficiently stated. Kiser duly presented to the banking commissioner his claim against the depository bank for $5,960.81 as an unsecured and noninterest bearing deposit. The banking commissioner rejected the claim and Kiser in due time brought this suit against the then banking commissioner and the state banking board, as then constituted, and the Pecos Valley State Bank, to recover said sum, and to have same classified as a general deposit secured by and payable out of the depositors' guaranty fund.
On the trial it developed that Kiser was claiming and suing for $5,960.81, basing his claim on the ground that part of said claim was due him as commissions as tax collector and which commissions he had not deducted from tax collections before depositing same in the county depository, and that in addition to his commissions he had in the deposits made his individual funds not commissions, and that the commissions and individual funds amounted to the sum sued for. The view of appellants, as manifested by their answer, is to the effect that Kiser having collected the taxes due the state and county and deposited same in the bank as county depository to his credit as tax collector, the funds sued for are a part of the funds of the state and the county, and are secured by the depository's interest bearing bond, and that for said reason Kiser is not entitled to same, and is not entitled to have the amount sued for made payable out of the guaranty fund.
It seems quite clear to me, from the evidence, that Kiser had a personal current account in the bank of many years standing; that in some way, not made clear, his personal account in the bank, not a part of his commissions as tax collector, became a part *Page 415 of his account styled "E. B. Kiser, Tax Collector." Beginning with March, 1923, Kiser's deputy, R. G. Middleton, who seems to have had charge of the tax collections, placed all tax collections in the bank, and they were placed by the bank officials to Kiser's personal account. Kiser did not receive a salary for collecting taxes, but collected on a fee or commission basis.
Without stating the reasoning of the witnesses, or in detail the various amounts of money received by Kiser as sheriff, such as serving citations, salary paid by the county as custodian of its property, sheriff's sales, amounts made in private trades, as disclosed by the record, nor stating in detail the taxes collected in 1923, and in 1924, as shown by the witnesses in connection with the tax collector's monthly reports, and the disbursements made to the various departments, I think it is sufficiently made to appear that at the time of the closing of the bank by the banking commissioner on the 28th day of January, 1924, Kiser then had deposited in his name in the bank moneys that did not belong to any of the departments of government for which taxes were collected, and to the full amount of $5,960.81, and which is made up partly of money other than commissions due for the collection of taxes, and partly for commissions due for the collection of taxes, and which commissions Kiser had not retained at the time of depositing the taxes due the various departments pending apportionment and payment to the departments to which the taxes belonged. This deposit, Kiser and the witness Middleton, both testified, belonged to Kiser. There is no suggestion in the evidence that it belonged to anybody else, and the conclusion necessarily follows that it did belong to Kiser. The majority opinion does not controvert that fact. There is a slight difference between the statement of the state comptroller as to amount of the taxes collected due the state and the amount of taxes collected and due the state and in the bank at the time it closed as shown by Kiser, but that difference is accounted for by amounts collected the day before the bank closed, and which did not get into the bank deposit, but was then in the hands of the collector. But the suit here does not present an accounting or settlement between the state, county, or any of the departments with the tax collector.
It further appears, from the undisputed evidence, that none of the money due Kiser by the bank on amounts due him of his individual funds not commissions was in any way secured, or interest thereon paid by the bank or agreed to be paid directly or indirectly. On the amount of money due him for commissions on taxes collected and placed in the depository bank pending apportionment and payment to the several departments none of said amounts was secured, or interest paid or agreed to be paid, unless it will be held that such commissions were secured or interest agreed to be paid by the bank's depository bond, which will be considered later.
It is reasonably made to appear from the evidence, and so stated in the majority opinion, that the sum of $3,207.33 of the $5,960.81 is due Kiser on commissions on taxes collected. That amount is arrived at by the testimony of the witness Middleton in connection with the tax stubs showing the full amount of tax collections and paid into the bank, what they were for; the amounts remitted to the several departments and the receipts for amounts paid leaving a balance in the bank, as above, as commissions.
In addition to the above, it is shown by the evidence that $3,207.33 above the amount of the tax commissions was placed in the bank on Kiser's account, making a total balance in the bank to Kiser's credit which Middleton and Kiser testified belonged to Kiser in excess of the amount of Kiser's commissions. Both Riser and Middleton testified that no money was placed in this account except Kiser's personal money and the taxes, and that fact is not controverted.
It is made to appear by appellants that since the trial of this cause in the district court, J. L. Chapman, then banking commissioner, has resigned said office, and that Chas. O. Austin was appointed in his place and stead, and has duly qualified as such, and that W. A. Keeling, then Attorney General of Texas, has ceased to be such official, and that Dan Moody is now the duly elected and qualified Attorney General, and that S. L. Staples, then state treasurer, has ceased to be such official, and that W. Gregory Hatcher is now the duly elected and qualified state treasurer, thus changing the membership of the state banking board, as above. The above-named officials in the capacities stated are substituted as appellants in the places of those they have succeeded in office as above.
Appellants, as above substituted, present twelve propositions assigning error and insist that the case should be reversed and remanded. Many of the propositions are based upon statements in the propositions of what the facts are assumed to be. I will discuss only such questions which seem to me to be conclusive of the issues presented.
Appellants, in several similar propositions, insist that where a tax collector, without deducting the commissions he was entitled to, deposits taxes collected by him for the state and county in the county depository, title thereto vests in the depository, and the depository thereby becomes indebted to the state and county for such deposit, and the tax collector cannot recover the same or any part thereof on the ground that the deposit included commissions that he should have deducted before making the deposit.
Appellants make the further contention *Page 416 that the $5,960.81 recovered by Kiser having been deposited by him, in his official capacity of tax collector in the depository bank, such deposit became interest bearing, and secured by the depository bond, and for that reason was not entitled to be classed as a general noninterest bearing unsecured deposit payable out of the guaranty fund.
I think the above two propositions, controlled somewhat by the same statutory provisions, may be considered together. It might be again remarked, however, that of the $5,960.81 sued for and recovered $3,207.33 were for commissions on taxes collected; the rest of the amount was Kiser's individual money, not commissions. I think that when the collector deposited the money, the amount of his commissions, in the depository bank, the identical money deposited became the bank's money just as any other deposit of money in a bank. But I think it does not follow that because of the deposit the bank would not owe the collector for the amount of the deposit unless it is true, as said in the proposition, that the depository by reason of the deposit becomes indebted to the state and county for the whole deposit.
The inquiry here is: What deposits made by the tax collector of the taxes collected in the depository bank were secured by the depository's bond? Certainly only secured deposits were interest bearing deposits.
Article 2440, V. S. Supp. 1918, provides for the selection by the commissioners' court in each county to receive proposals from such banking institutions in the county as "may desire to be selected as the depository of the funds of such county."
Article 2441, V. S. Supp. 1918, provides that the bidder shall deliver to the county judge "a sealed proposal, stating the rate of interest" the bidder "offers to pay on the funds of the county."
Article 2442 makes it the duty of the commissioners' court to select "as the depository of all the funds of the county" the bidder "offering to pay the largest rate of interest per annum for said funds. The interest upon such county funds shall be computed upon the daily balances to the credit of such county with such depository, and shall be payable to the county treasurer monthly, and shall be placed to the credit of the jury fund or to such funds as the commissioners' court may direct."
Article 2443, V. S. Supp. 1918, provides that the amount of the bond of the depository "shall in no event be for less than the total amount of revenue of such county for the next preceding year." The article prescribed the conditions of the depository's bond to be "for the faithful performance of all the duties and obligations devolving by law upon such depository, * * * and that said county funds shall be faithfully kept by said depository and accounted for according to law."
Article 2443a provides for additional bond whenever, after the creation of the county depository, there shall accrue to the county or any subdivision of the county, any funds or moneys from the sale of bonds or otherwise.
Article 2444, V. S. Supp. 1918, provides that as soon as the depository's bond has been given and approved by the commissioners' court, and the state comptroller of public accounts, an order shall be made and entered upon the minutes of said court designating such bidder "as a depository of the funds of said county until sixty days after the time fixed for the next selection of a depository." After stating some duties of the county treasurer with reference to the transfer of "funds belonging to the county" to the depository, the article provides:
"And thereupon, it shall also be the duty of the tax collector of such county to deposit all taxes collected by him, or under his authority, for the state and such county and its various districts and other municipal subdivisions, in such depository or depositories, as soon as collected, pending the preparation of his report of such collections and settlement thereon, which shall bear interest on daily balances at the same rate as such depository or depositories have undertaken to pay for the use of county funds, and the interest accruing thereon shall be apportioned by the tax collector to the various funds earning the same. The bond of such county depository or depositories shall stand as security for all such funds. If the tax collector of such county shall fail or refuse to deposit tax money collected as herein required, he shall be liable to such depository or depositories for ten per cent. upon the amount not so deposited and shall in addition be liable to the state and county and its various districts and other municipal subdivisions for all sums which would have been earned had this provision been complied with."
Now it will be observed from the above articles of the statute creating county depositories that the purpose of the Legislature evidently was to more effectually secure only the public funds belonging to the several departments of our state government. To effect that purpose the Legislature creates a depository of the public funds only; the bidder for the public funds to pay interest on the public funds only. The commissioners' court, from among the bidders, selects the depository of only the public funds. The interest to be paid is computed solely upon the daily balances of public funds and payable to the county treasurer monthly. The depository's bond is fixed solely on the basis of the total amount of the revenue of such county, and conditioned for the faithful performance of all the duties and obligations devolving by law upon such depository, and that the deposited county funds shall be faithfully kept by said depository and accounted for according to law. After stating the duties of the county treasurer as set out above, we come to a consideration of that part of article *Page 417 2444 above stated and having reference to the duty of the tax collector in considering what funds are required to be deposited by the collector in ascertaining what funds are secured by the depository's bond, and upon what funds the depository is obligated to pay interest. It provides that he shall deposit all taxes collected for the state and county in such depository as soon as collected pending the preparation of his report of such collections and settlement thereon. The funds the collector is required to deposit are the funds secured, and bear interest on daily balances. In considering the funds required to be deposited with the depository by the collector, we must look to the terms used and the purpose of the statute creating the depository. Such a construction should be adopted as will make all the provisions of the statute consistent with each other. One section or article of a statute may stand as a context for another. I think that where, as here, all previous articles of the statute above referred to, in creating the county depository and prescribing the things to be done, the funds to be secured and the way in which the security of the funds is accomplished, may be looked to in ascertaining the legislative intent in making it the duty of the collector of taxes "to deposit all taxes collected by him, or under his authority, for the state and such county and its various districts and other municipal subdivisions in such depository, as soon as collected, pending the preparation of his report of such collections and settlement thereon, which shall bear interest on daily balances," etc., and in making the bond of the depository stand as security for such funds, and such funds only.
The articles of the statute previous to article 2444, from which the above quotations are made, all refer to the public funds only, and the expression in the quotation, "all taxes" is evidently identified and explained by the clause "for the state and such county," etc., and indicate the funds required to be deposited and disbursed by the collector, and the funds secured by the depository's bond, and upon which funds interest is to be paid. Should we read the tax collector's commissions into the above article of the statute where the articles use the term "county funds," we certainly would put into the statute something which is not written in the statute, and would have the Legislature make a contract with the county depository to secure his commissions and pay him interest thereon. Such interpretation, it seems to the writer, would be confusing and not within the legislative purpose in creating a county depository for the public funds and the security therefor, and not within the purpose of the depository in its desire to be selected as the "depository of the funds of the county," nor in its offer to pay interest "on the funds of the county, computed upon the daily balances to the credit of such county," and made "payable to such county treasurer monthly," and obligating the depository that "the county funds shall be faithfully kept * * * and accounted for."
The verbiage of the depository's bond, it seems to me, excludes the idea that the tax collector is secured by it for any of his commissions deposited with the depository.
Should there be an excess in the deposits made by the collector, as here, above the amounts due the several departments, could it be said that the collector must apportion such excess to the departments, when it clearly appears that such excess is the collector's commissions, or that such excess is secured by the depository's bond? I think not.
Under provisions of articles 7618 and 7619, V. S. Tex.Civ.Stat. 1914, the collector might well have reserved his commission on the deposits when made in the depository, but I find nothing in the statutes that either requires him to do so or forfeits to the depository, or to the state, county, or any district for failing to reserve his commissions when he makes the deposits.
The state, county, or districts certainly could not claim from the depository or the collector any amount of money collected as taxes in excess of the amount due each, and I see no reason why the amount of money put in the depository in excess of the several amounts due the state and county, under the evidence, would not belong to Kiser, to the amount of his commissions.
The contention made that Kiser so mixed and mingled his private funds with public funds deposited by him with the depository that he cannot now recover the same has no application under the evidence and facts of this case. Kiser was not suing for the identical money he put in the bank. It was not necessary for him to identify the money not commissions from the money that was commissions. If he had the amount of money in the bank for which he sued and recovered judgment, and had the right to withdraw such funds at the time of his settlement with departments, it would be immaterial whether the amount was made up from his private funds, not commissions, or from commissions solely, or from both sources, neither fund being secured in any way, or drawing interest, he would be entitled to have either fund or the aggregate of both paid out of the depositors' guaranty fund. The evidence of the witnesses was based upon what they said they had done in putting the money in the bank, and knew they had done so, and it seems clear and uncontradicted that Kiser had in the bank, at the time it closed, the amount of money for which he secured judgment. The manner of keeping the deposits was a matter of bookkeeping, and the duty to keep them separate was that of the bank.
For the reasons stated, I express my *Page 418 dissent, and suggest that the case should be affirmed.