s51
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
y&uoreble Albert I. Hut-son, Jr., Fege E
The s~clfle questions you aek are 8s rOii0w5:
r. . l .
*1. ?iould the tseosurw nnii depository bank
be liable ou their ofYfoie1 bonds in the event
they should honor or pay vouchers exeouted by the
eohool board to the new s~erlrAendeut under the
ters of his aontmct?
WE. In ths ev6nt the diooherged ruperintend-
ant should prevail in the panding litigation, would
the treasurer emd doposltory batuk be, in any way,
liable for the paymmt of vouahere properly em-
outed by the sohool board to the new superintendent?
*3. In tae event you mlsw%r tab two forogolng
questlons in the OS tire and the treasurer and
d8poeitory bank irtiE rcriuar to pay the afore eafd
muohssa, c5n the locel so&m01 board or n5w auper-
latsnbent, %lthsr or both, require the treatsurer
and depository kak to pay aaid touchers by man)-
damua?
*4. II the troetwrai and depository burk
ilable for the nron#ul refusal to pay rouohors
:properly lsuued by the mhool board?
I . . .'"
The statute that dsterrrinw the aaawar to these
questfont is krtiols 2852, Vernoafe Annotated Rawi8ad Clvll
$tat.utes or TOXMJ, the arater?& parta or v.hlah mad as rollmet
*In my ia&8pmdent fflstrict of mow t&m
one hundred fifty (IBO) aaholastloe, whether it
be in a olty viaioa has aseuud coutrol or the
schools within its ltit.9, or a aorporation for
s&ho& purposes only, end vðer ori+niaml 111.
der general law or created by spaolal sat, the
treasurer of tbs sohool fund shall be that per-
aon or corpor.stion who ofitars 6atfiSffNtQry bond
end the best bid of interest on the mere&e dally
balanoes r0r the prlvllege of act?ng 81 suoh
treasurar, Thhe treasurer whan thus eeleotti
shall serve for a tern 3f two year5 and until
F
lionorable klbert J. Butson, Jr., Es&e 3
his aucoeasor shall huve been duly selected and
qualified and he shall be required to give bond
in an amount equal to the astlmated amOunt of
the total receipts coming annually into hi6 hands,
when such bond is a rer6On61 bond! provided, that
when a bond 15 exeouted by B surety company or
$6 a bond other than ct psrsonal bond, such bond
ohall b6 In an anxxint equal to ti.% hicheslt ea-
timated dally balenae for the current bieanium,
to be determined by the governin& Mdy of ouch
school district; provided, furtlior that suah ROY-
erning body may, in lieu of the bxid herein au-
thorleed, aoospt a deposit of approved seouritlee,
which sacurlticrs may include bonde of the United
States, or of thir .,tcrte,or of any oounty, city,
town or independent i;ChoOl dU+triot in the ijtate,
or kntfclpation Tax i;arranta and/or Antlolpatiori
Tax Kotes legelly lsaued by the governing body of
such school distrlot, whioh ah&U bar deposited a8
suob governing body my dlreot, in sn mouitt suf-
rlcient to adequately protect t&e rundr of eu&
school distriot la the hand6 of the seleoted
!ikWl%Ul-W .
Vrovlded, however, thtut no pre%iWa on any
bmds shsU be peid out of the funds of any said
dlstrldt or oorporstion. Said bond shall be pay-
able to the president of the board and hfs ma-
oesaora in ofiias. oond~i4ionsd_t~~~_th~~~~
or the bond, withv-&f-h the trsasursl’ and the
p4, are *the faithtul dlechax4@e QI the trseeurerqe duties
and the aayraant of the funds reoe&tred bg him urn the draft
@norable Abert J. tiuteon, Jr., laga 4
of tho QrWkident of the sohJo1 board drawn UDB~ order. duly
ezteeed. of the board of trusteea", and that *the treasurer
ahall s~faly kee;, and fa$thft+ullv diriburse all fund% oo%&ng
Into hi8 handa aa~treasursr , and shall faithstilly pay over
to his suOof~~~or all balanoes remrlirizg in his hands".
It i8 quite appsrmt thut the O&ly 6pMtifiO re-
quir%aeat inthe bond for the tressmar and the bank to ful-
fill, Involved UDdar the f'aat.8you give, is that whiah re-
quires *the payiMnt of the fundm . . . upon the draft of
t&e preeidsnt OS the sohool boaxd dreva upon order . . . of
the board of tru#teea*. Y:e a88uma that the rouchera lasued
to the new ouperintsndent have beon drawn by the praaident
of the board upon order ot the trwteeo. The bend doea not
require the order of the aahool boerd be a lb* 1 r o
l'hderthe term6 of the bond the troamarer -are an
am4 reQuireal to eesertaia whether or Uot the vwoher has
kea drawn by the president upon ardax'oi the truetaaa.
The only requiremanta
ether Zs the bond am *the
of the ttieuurez*J dutlea, th6t the traa-
kwp 6nd rrrft dfebUr66 dl furzdr"
$a$tQful.ly p$& to his mooomor all
b6l8JW0-B". kooordLn& to tF.e opinion 1st the aase of K.C.Y.&O.
Qy..Co. I. Khittln&om 4~ Snoaney, (Ten. Cir, Ap .) 155 8. i1.
MW, the ward *~afthtull~” smnm VawthSuJ,l~, D% oe~ly and
aepuratelyar Under the faota that ye give, wa oannet say
tls%tthe tteaeurer 6114 the bank would not be act&i& 'faith-
fully* by pylag the vouaher6 issued to the new auparlntandant.
We heve been unable to find any Texas appellate
a~rt deaW.on on this partiuular question, but the *ama ree-
. 8onsag we have followed h6M was used in the ca6b or age f,
Froboaee, (T&IX. Civ. wpp.) 66 5. w". 6456, in whioh the oourt
held thet s County Trwmwer, whose rtatutory bond n8s oen-
dltloaed that he would "airfsly keap and talthPully Ulsburrre
the (oounty) sohool fund aooerdtng to taw" wa@ authorixed
to pay warrants issued b$ th% aounty %%ltooi 8up~rinfendenf
that were valid on their facre but had Man fllqally lbnblsd
by the %up%rint%ndent.
k Kentuaky ~886 in point, 00. a feat sttuation siml-
3.8~to this one, la the 0888 ef i%porit Bank of Orwrrboro t.
&&err County hurt, 13, Ky. L, 681, 15 5, Pi. OSIO, in which
the aourt ssidr
*!lB% benk viss not % tru%te%, but a mm-e naked
degaaitary, with tha agents or the aounty to super-
Yuke its eotion. ',hs fund was % tru& fund, to bo
nmrebl% Albert J. liutson, cr., &age 5
applied in a particular way, not by the bank, but
by the 86~ent.S Of the County. 'Lhe bank W66 required
to know that tts bond or coupon iSSued had been
si~$~ecl enC deli-red --in other worda, that it Wa6
tl ~;enuf.ne bond, nodng ; and the mix% frict
-ilore
that it mi&ht have been au OVeXiSSrie Created no
IlSbllity, UnleSS 'bhere was rmia rendcollusion
betreen t&e bank an& the committee la en appropri-
ation of the runa to $ purpose they knewwas un-
authorIzeA. It is Stat@ in th6 o~@-iiou below
that the mxmgera of thlca fuad wore men or the
hl.gheet order of integrityI and thlS entire trouble
ha6 orlg;inatsd iron a mistaken judgment in the @au-
struotion of the law under Which they acted, . '. .*
For the re660n6 Stated above w think 10 is alearly
the duty of the trearsurer 6nd the bmtk to pay the VQUOh6r6
166UOd,to the ileu su&mriutsndeat.
lie0 CO CiWQ%l the QSXtOXRMllOb OS 6&laOt
+“liban&lQUS
&leh the
law 611njoins 66 a duty resulting fron an ofllioo or
trust”. Z6 Tsf. Jur, 654. Sea slso t&e aaae of Sitswart v.
~ongIo60pendent Sehaol Eistrlot, (T6x. cit. app.) 134 8. W.
.
our snswor to your f%TSt q,Wltion is *ne*.
our ~ntmr to your seaona quastlon 1s *ao*.
Our answer to your third question 16 that th6 new
SU&mi<6n&6nt 15 entit;lOd to OOapll the treasurer and the
bank to pay hi6 vouehere by mmbamU~.
In view of our iorrgoiag anaw6r6 we do not think
it Is u6065SSry thet we 8wmer your fourth quertlon.
',Youro very truly