Supplemental Op'nion on Rehearing.
OSBORN, J.On rehearing it is urged that the opinion is incorrect in holding that (he city clerk is not entitled to an offset of certain warrants held by the bank, inasmuch as the warrants were issued against cemetery funds, road funds, and water department funds, which were funds collected and held by the city clerk.
The trial court held that these warrants should be offset against the deposit of the city treasurer, and sa’d holding was affirmed by this court in the former opinion.
Plaintiffs in error rely upon section 19, article 10, of the Constitution, which provides that no tax lev’ed and collected for one purpose shall ever be devoted to another purpose. This provision of the Constitution has no application to 1 he controversy at hand. No question of taxation is presented. When the city clerk wrongfully deposited said funds in the hank, instead of paying *225same into the hands of the city treasurer, the funds lost their identity as to character, in so far as the bank and the city clerk may be concerned. While it is incumbent upon the city treasurer to apportion public funds on his records according to the source from which they were received, there is no such corresponding duty on the part of the bank.
No complaint is made in the petition for rehearing as to the holding of this court that the city clerk, when he failed to deposit the funds in question with the city treasurer as required by law, became an insurer of said funds. Tt is agreed that his duty required h'm to deposit such funds with the city treasurer. When ho failed to do so and deposited the funds to his own credit in the bank, this amounted to a technical appropriation of the funds to his own use and benefit, although it does not appear that there was any wrongful or unlawful intent on his part. The surety on his official bond, however, became liable to the city when the funds were so appropriated. When the bank became insolvent, there were two debts existing, one debt to the city for the funds which had been deposited by the city treasurer in his official capacity pursuant to law; the other was a debt existing from the bank to the city clerk for the funds deposited by him, which were deposited Ivithout legal sanction or authority. The warrants in question had been purchased by the bank and were the legal outstanding obligations of the city. The warrants were therefore properly offset against the deposit of the city. It is conceded that, in order to warrant a set-off, the debts must be mutual, and the principle of mutuality requires that the debts should not only be due to and from the same persons, but in the same capacity. This rule is supported by the following authorities cited by plaintiffs: Kaye v. Metz (Cal.) 198 P. 1047: Shippee, Bank Com’r, v. Pallotti, Andretta & Co. (Conn.) 159 Atl. 494; Smith v. Bath Loan & Building Ass’n (Me.) 136 Atl. 285: Dennis v. Smith (Tex.) 49 S. W. (2d) 909; Wittich v. Wittich (Mo.) 263 S. W. 1001; Heflin v. Heflin (Ala.) 134 So. 20. In support of the same proposition, defendant cites Van Arsdale v. Edwards, 24 Okla. 41, 101 P. 1123; Murphy v. Colton, 4 Okla. 181, 44 P. 208; Bank of Crab Orchard v. Myers (Neb.) 231 N. W. 513; Shapleigh Hdw. Co. v. Brunfield (Miss.) 132 So. 93; Hunter v. Henning (Pa.) 103 Atl. 61; Sanford v. Pike (Ore.) 170 P. 729; 57 C. J. 444.
It is noted that the original opinion holds that plaintiffs in error are not entitled to set off the obligation from the bank to the city in this ease, for the reason that the surety in this case is the same as the surety on the bond of the city treasures.'. Plaintiff :n error’s surety takes issue with the court on this finding. It is unne'cessary to discuss this issue further, for, under the authorities cited in this supplemental opin'on, the decision of the court is correct.
Petition for rehearing is therefore denied.
RILEY, C. J., OULLISON, V. C. J.. and SWINDALL, ANDREWS, MeNEILL, BAY-LESS, BUSBY, and WELCH, J.T., concur.