OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
June 14, 1939
sbr. A. 5. Bickerson
County Auditor
~~ontgomary County
Conroe, Texa.a
Dear Mr. Hiolcer8oll:
Q the above afat&
rsful eonsideretfon,
te te be the wrraot
%rlmmr to yo
tiontotwu Art
0 shall aeitheP
other things, grwidea that the word
et3 a aerp0rati0zk. Fwthemore, it has been
held that the ror12 "parson - islelndes a rarporation rlthin
the meaning of the due proasas elause oil the P&iesal Gem-
at~tntlon,
MT. A. E. Hiokereon, June 14, 1939, Fage 2.
the faithful pertonnanos
of all duties and obligations Ue-
TOlring by lawdepository,
upon theand for the payment,
Upon prerentation of all checke drawn upon such dtposltory
by the County Treasurer of the oounty, and that the oounty*s
fund8 *shall be falthfully~kept by said depository and ao-
counted for locordlng to law.' And Artlole 2828 of the
Clvll Cods prorldee, in cffoct, thnt abroh depository is
Oonstituted the *TreasumrW of all school funds of the
oopnf7.
In the aase of P;ennspln County v. Stats Bank,
64 Klnn. 180, 66 N.W. 143, the Suprene Court of b:lnnesota
stated:
Vepoeitories of county funds imder the statute
are quasi publio offiaera. They are financial custo-
diana of the ooimty, and hold Its funds in place of
the Treasurer.-
And It m-as held by the Suprene Court of Alabama:
"In ocmmon aooeptenoe of that term, a depository
is a oontraotee with ministerial duties, performanoe
of xhloh mar be ompelled in proper oases by the
writ of emndamua.” (Flret Natlonal Bank vs..Terry,
et al, 83 So. 170.1
&her aeotion of the Constitution
Tha which we
think is here applloable is Seotlon.20 of ArtiOle 5, whioh
provides :
WQ person who at anr time ma7 have been
a collector 0f taxes, or rho may have bean other-
vise entrusted with publio money, shall be eligible
to the Legislature or to any office of profit or
trust under the State Oovornmnt, until he shall
have obtained a discharge for the amount of suoh
oolleotions, or for all pub110 moneys with whioh
he may hnve been entrusted."
Whlle the title to pub110 funds whfoh have been
deposited with a depository bank passes to the bank, yet,
as above shown, the depository is under the legal duty to
8afely keep and account for suoh funds. The liability Of
the depository 1s a aontlnuing one and does not cease un-
til the seleotlon of a new depository and the giving of the
bond bT the latter, or until 80 days after the time fired
for the appointment of a suooessor. Article 2529, R. C. S.
1925. Therefore, It follows 8s a Protter of oourso, that
Mr. A. E. Hlokaraon, June 14, 1939, Page 3.
within the meening of the Constitution a bank whioh la 8
oeunty depository oannot be dlaoharged of lta llablllty as ous-
todlan of publio fund8 60 long aa the bank hold6 that poaltlon.
The last above-mentioned aeotlon of the Constl tu-
tlon was construed In the oase of Orendorff v. State (C.C.A.),
108 8. 1. (26) 206, and It was held that a parson who had
been entrusted with pub110 funds, to-wit, a aherlff, was ln-
lllglble to flll,the atfloe of County Com&laaloner 80 long
a6 lm was under the duty of dlacharglng his llablllty by
reason of hle hsving been the oustodlsn of such funds. The
oourt, In pert, said:
*It (the Constltutlon) olearly lnoludee every
person who may bare been entrusted with public
money. It was wlthln the knowledge of the Constl-
tutlon that vast mm16 of money would be entrusted,
of neoesalty, to others than tax oolleotora; and
the language used waa broad enough to oover them
all, State and County Treaaurera and treesurere of.
other political lubdlvlalona of the State, Offloera
and Departments that reoelve monal In behalf of the
State and lta politloal aubdlvlalons, sherlffa and
otherm.n
It therefore alearl apkara that a oounty depoai-
tory la inoludad within the language and purpoas of thla
aonatitut3onal provlalon, if for no other reaaon than that
it ia the Treasurer oftlm #oh001 fund6 of the oamon aohool
dlatrlota of the oountr. It la not to be queatloned.thet
auoh dlatrlcta are polltloal aubdlvlslona.
If it be auggaated that neither of the quoted aeo-
tlona af the Constltutlon are applloable to the question under
diaouaalon for the reanon that the oaahler of a d@po~ltOTy
bank Is not per ate the bank or euoh depooitory, and that,
therefore, he la under no oonatitutlonal restraint so feT
aa hi6 ellglblllty to be oounty auditor la oonoeraed, we
think a aufflolent answer to auoh auegeotlon la thet a bank-
ing oorporatlon oen only act through Its proper offleers.
A cashier of a National Bank la the ereoutlve offloer of the
bank who transacts Its dally affalra and through wham, uaual-
17, all of its flnsnoial obllgatlona sr8 conducted. See
Flrat National Bank of Oreenvllle v. Cotton 011 CO., 60 ”
S. H. 828 (C.C.A.)) Hewitt V. Fir& National Bank, 252 S. r.
161 (Co% App.). .In th? laat oltea oase the bourt stated,
r’ _. Vlckerson, June 14, 1929, ?aga 4.
23. A. -
that the oashlar of a bank &thin the aaope or his orriolai
dutlea Is the bank.
In the offort to determine whethar or not a
constltutionnl lfmitatlon or'othar provision la appli-
oablo to a gltan oasc, ooneld4ratlonmust bs given to the
rule that the literal words of the Constitution carry with
thez oartaln raaronable and neoaeaary implications. see
?h~!tn~ 120 Tex. 383, 40 5. ':r'. (?a) 31, 36; Croat
V. K%:grrs,
Southern Llfs Ins. CO. t. City of Auatln, 112 Tax. 1;
243 s. p:. 770; City 0r Dsnlson v. Eunioipal Gaa co., 257
6. 77.616 (C-A.), Alfinned by Supre>laCourt, 3 L; ::. (2d)
794.
In the
last cited ease the court on rshearing,
speaki% through Justloa Loonay, says:
*The doctrine of lm~llcd pov;,ers
and restraints
is roll known to the law or oonstltutionalconatruo-
tion. It raeults fron the fact that it is never
practicable In a Constitution to apaoify in detail
all its objeots and purposes, m the meana of oarry-
ing thea into execution; therefore, constitutional
posrersare granted or prohibited in general terms,
fro= ?:hich~lmpliedpov;arsand prohibitions necaa-
aarilr arise.'
KS think, thererore, that what a bank in its oor-
porata entity Is rorbiddan under the Constitution to do,
the cashier of the balutmay not do, unleaa and until he dls-
associate% himself from his oonnaotion with the bank.
The statut~rrelatln~to the offi04 of oounty
auditor are ArtiOlOB 1645 to 166S, inclusire, 8. C. S.,
lees. Frosn theBe etatutss it appears that the oounty audl-
tor has general supervision of all books and records of all
oifloerE'of the county, district and state, who may ba auth-
orlzad or raqulred to receive or 0ollJot money, runde,r434
or ot&r property for the use of or belowI% tt the oounty;
that he shall eae to the striot enforooumnt of ths laws
~ovsmlng county finances; that ho has oontinual,aooeasto
and shall exanina all booh, accounts, reports, vouchers
and other records and all arralrs relating to the finances
ae the county; and without girlog any pravlous notioo, ha
shall exazlne fully the condltlon of and ins&mot the oash
in the hands of iha county traosurer or In the &I& in
whloh ha my h:,vsplaced same for safekeeping, not leas
than onoe in each quarter, and he shall see that all bal-
anoea to the credit of varlous,fundeare actually on hand
in oash.
.
, .
Mr. A. E. Riokaraon, Juno 14, 1939, k’age5.
Considering the statutrs, tharerqre, ralatl~ to
the dutiaa of oounty auditor8 and those relating to the bat148
and obligations of the oounty depository, w4 must, n4oeasarIly,
oonoluds that If ths cashier of a depository bank were per-
mitted 6t the aama tIma to fill the orrlos or county auditor,
he would be placed in the position of being raqulxsd to peas
judgment upon the book%, aooounta and othar derlnsd aota of
the oounty d%pOBItOry, which are In legal offeot his book%,
aooounta and mote. It was to prorsnt just auoh Inorrapatiblo
situations that the forogollrg provision% ware writton Into
tho Constltutlon of this State.
In an opinion by a rcrmar Attorney General of this
State, which was rendered on February $27, 1919, It was hald
that the oashlar ol a bank, whloh was a depository of school
funds, oould not be appointed to the OrrlOa Or oounty eohool
trustee. In a oonisrenoa opinion rondsrod on Soptembor 16,
1929, It was held by another roramer Attorney General of thlr
&ate that a etockholdsr or an orrioial or..a oorporatioa
ahloh was the depository for an Independent school dietriot,
waa lnaliQ1blo for appointment or eleotion aa truetoe of
amid school dl strlot. Thoss opiniona wore upon rolated
subjects to the ~OXWJ that we am now called upon to anewor,
exoapt that It la believed that t:‘e instant ease proaants
stronger roesons r0r arrlring at the sma conolusloa.
It follows from what bas been aaid that It lr the
opinion of the Attorney General that the aashler of,ths bank
which Is oounty deposltory Is InellgIble to be appointed
oonnty auditor ct the ama county.
Yours wiry tzulr
ATTORNEYGZWRALOFTEXAS
BY ;%pf*
First Assistant* gorn~~Gonaral
‘I