OFFliZE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Ii. 8hoppard
FublZc Accounts
Dear &lx'*Shoppardt
RS~: MI&hor‘%$ Ilit the &lCCCpt8IlCO
by tihhe--CqwtyTax Collector
. Of 8 hX~+'S‘C@OCk for t&LX-
,/- ',QS8xvl the depoeit thereof by
/ Colleotor &&opting *om
bank 8 Cashier~e
mount consti-
by the taxpayer
qcoipt of your lottor of
COUXit~ in Janu-
the bank closed.
'It appaars that tho Tax Colleotor re-
ceivod approximately t&x+Nvo per cent OC
the value of the CashUr*s checlt in dividends.
8x0~ wili please advieo tbia department
whether tho Tar COllCOtOP or the t&qXayer
should bo bold liable for tho paymmt of the
t8xes ."
418 ,
non. coo. 8. Sheppard - Pago 2
UnQar the facts etafed by you, it is our
opinion tho Tax Collector and his bondernon should
be held liable and not the taxpayer.
It is, of course, well settled that fhe
authority of the.Tax Collector in tho matter of col-
looting taxas oxtonds only to collections made in
cash. Austin vs. Fox, 1 S. v. (2) 601; Figures vs.
State, 99 8. w. 412; Ward vs. mrion county, 62 s. w.
657, 63 s. 0. l55.
Any payment by check 01. qthorwise than by
the pqynumt of money amounts meroly to an arrangcmnt
for accomdation to the taxpayer, or for comonicncc
Saks, and ia smdo at the risk Of ths parties thoroto,
8nd not of the State or county. Austin vs* FOX, 1
8. 1. (2) 601s Wang3 County VB. T. & N. 0. R. Co., 80
8. 0. 570 (i&t refused) T. W N. 0. R. Co. vs. Stat0
97 8. 1. 142. The question, thoroforo, arises whethe;
or not the transaction du&lled in your lottor consti-
tuted in legal esscncs 8 payment in cash to tho Tax Col-
lector by tho impayor.
In Davis vs. State, 51 8. W. (2) 703, a crim-
iMl C(LS8, it is Said:
#Wo agree entirely nith the oonton-
tion of counsel that no Tax Collector has
any authority to rocaivo in payment and
discharge thoroof anything but LswfuJ
money of th3 United States, aiti th8t, if
he does cccoyt any kind of property other
than lawful money in payment of taxes,
suoh aocoptanco by him of such property
will not operate to discharge or pay such
taxes - It is doubtless true that a col-
lector Of taxes nay refuse to accept 8
check or draft, in payzmt thorsof, and say
insist upon being paid in actual mney,
and until such pngnegt is made the tax08
till not,be dlscharged~ but in this case
iiin[;,the County Yroasurer, accepted in
paymnt of thu taxes a check of Rodick
drawn upon an Omaha bank. If this check
had been I\rotosted or never had beon paid
419
ilon. limo. JI. Shopparcl - PsgO 3
of course it would not have operated as 8
payrront or” the taxosi but the Treasurer
obtained thO ir.onsyon this ahock from the
bank on which it was drawn, and the mgmant
he did so ho hold such nmnzy as Treasurer
of tbo county, in his official capacity,
and the taxes to pay which It was given WWo
from that monent paid and discharged.*
The opinion citoe Hubbard vs. Auditor Gen.
(&ich.) 7ti N. VI. 978, and on annotation in 44 A. L. R.
p. 1234.
In tlio annotation cited Ve find the case of
Wasson vs. Lcurb (InQ.) 22 H. 3. 729, 8 L. R. A. 101.
That was o cascv whore a Courzty Treasurer depositsd in
n bnnlc roooipts for taxes i?uO frcm the bank, receiv-
ing crw t SW Chc,amount of sucf, taxes, and sftoruards
Qrtw the money out by c>ock. Xn tha course of the opln-
ion it 309 ssS&~
** * **If t&3 custorwr assents to ’
such action on the gart of the be.nX by
drawing chooks a&xlnst the croi?it, or
in sny other way, bo rz.nifests with
equal olearuoss his intoEM.w to be
traatcd as 8 depositor of mOMy.’ If,
by cut&al oonsent, the bank and thO ap-
pellant choose to tr03t the tax reoeipts
as so much cash doposit@d to the crsdit
of 6hs latter, the transaction must be
rogardod as aocorting to tbs intontlcn
of the parties at tlzs t&3.
“The conclusion which follows from
wlct hrra procoded is t3nt w?xn ths ap-
pollant transforrod l&3 tax roooipts to
ths bcnk, and rocoivcd cri?&it fnr thr,
amount theroof, the tranarctlcn w.+s, in
la@ Ofr3Ct) the sam as if be had do-
posited the aniount in ccatl.*
.
II" tllz tN.ll4Wii0E V23 033 bf3tWQOn private
lndivi~uals, thO quo&ion ROUU bO easy flf solution.
Berg ~4. Foclcral l7cscqo Bank of Mnnoapolis
420
Non. Goo. II. Shopp;rrd - I3go 4
(N. D .) 213 N. IV. 963, holds that if the holdor of a
chook Is rpllling t0 aCOept Mything else, and drawee
bank is willing to &iv0 it, the drawer io not oon-
cermd, end the chock claybo paid in e medium other
then oash. The drever's contraot is fulflllod rhon
tho check is paid. '
So, in Joffcoat vs. Zlckgraff', (S. C.) 140
s. g. 47~) it ~36 hold that e vendor, ah0 aoooptcd 8
oashlar*s cheok folloning the purchaaer@s payment of
draSt to bank, took the risk of tho chock's invalid-
ity. .
Again, in Ltorris vs. Clove (N. C .) 14g S. E.
253, It vns held that a bolder of 8 check may pFseent
it porsonallg end is ontitlod to cash. If ho proaonts
it through the Federal Roserve Uank, or tho Express
Coqxmy, or the postoffico, utier a statuto which nl-
lows pegrmontby check, ho talc06 tho risk that the dreft
issued by the dragon bank will not be 8;oottL. The check
itself Is paid vhcn the dravoo chergos it agtinaf the
drawer* 8 aooount .
Litchficld VB . Reid, Sheriff, (N . C .) 141 8 .E.
543, a tax case, says!
l* * at The check vaa issued on Jan-
uary 3, 1925; It was present&d for pay-
ment on or boforo January 13, 1926 8 when
the check was acoeptod for paynrent by the
drevee bunk it vas ohergod to the eooount
of the drawor, aml subsequently returned
to blm stsmped or perforated, 'Paid,
l&25. Them is no ovidmoo tonding
08 what disposition we8 made by the
dreweo bank of the amount charged to its
dopoaitor, the drnwor of the aheok, on
acoount of tho samno. Upon the facts
shown by tho ovidmoe, piaintirf has no
concern 3s to such ~disposltion. The jury
dght have found from the evidonae that
t,ho procoods of the check were peid to
the holdor cf the cheek, who prsssntod it
for payment, nnl who had the right, i.f he
chose to exercise l,t, to demand money for
said chaok. m * ** -
lion. Geo.Il. sbeppard - Page 8
Palmer, Ta Collector vs. Siarrlson @a.)
242 8. E. 228, another tax oaee, rtoldsr
flThe oolloctlng bank was the agent
of tho tax collectors and, while *taxes
mast b$ paid in gold or silver, or in
the bills of euoh banks 08 pay specie
p~onxptly' (Civil Code 1910, 8 1013), yet
the effect or the traneaotion in the in-
stant case was to pay the taxes in law-
ful money ; and the court did not orr in
ovorrull~~ the demrrer to the petition
'and in granting the Injunction. Soo Stith
Roofing Co. v. Utchell, 117 Ge. 772, 45
S. E. 47, 97 Am. St. Rap. 217; Pollek vb
llall-Herin CO., 137 Ge. 23, 72 S. SO
415, 36 L. B. A. (S.S.) 131 Comer v'. DIP
four, 66 Ga. 378, 22 S. If. 643, 30 L.R.A.
300, 61 Am. St. hop. 89.'
Flually it Is said in C. H. hey Corporetion VS.
willi-, City Treasurer, (Wch.) 238 N. 51. 216:
*YEhcntble cheek was deposited to the
credit of the defendant and Charged to-that
0r tho fuel ;u;d eupply Compaq, the ~mney
repreeontod by it ves, in legal effect, paid
to him by the fuel cornpang. The burden of
shoving that ho was thereafter juettfied in
repaying it to the bank was llpon him.
nFi?liletho stntuto (1 Cmnp. Law6 1929,
1 339) provides that a oheok tendered for
the payxcont of a tax shall not operate es
mch, unless 'it shall bo pald on preeonte-
tam,* tbie caook see paid when it was da-
posited by the treeeuroc ati credited to
his account and charged to the account of
tho fuel aud euyply oom~uy~ there bolng
then in