Compton v. Marengo County Bank

• Decision Date: 22 May 1919
• Docket Number: 2 Div. 689
• Citation: 82 So. 159,203 Ala. 129
• Parties: COMPTON v. MARENGO COUNTY BANK.
• Court: Alabama Supreme Court

82 So. 159

203 Ala. 129

COMPTON v. MARENGO COUNTY BANK.

2 Div. 689

Supreme Court of Alabama

May 22, 1919

Appeal from Circuit Court, Marengo County; Robert I. Jones, Judge.

Summary proceedings by C.E. Compton against the Marengo County Bank. A motion for summary judgment for plaintiff was denied, and he appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

S.W Compton, of Linden, for appellant.

William Cunninghame, of Linden, for appellee.

McCLELLAN J.

Motion for summary judgment against depository (Gen.Acts. 1915, p 348) under Code, §§ 5938, 5899, 5900.

In August, 1918, G.E. Compton, styled appellant on the record was a jury commissioner of Marengo county, under the authority of the act approved August 31, 1909 (Gen.Acts.Sp.Sess. 1909, pp. 305 et seq.), creating such offices and officers. Section 3 of this act provides:

"Each commissioner shall be paid the sum of five dollars per day for the time actually engaged in the discharge of his duties as such commissioner, to be paid out of the county treasury, upon the warrant of the probate judge of said county. Such warrants are to be issued by said probate judge upon evidence satisfactory to him that such service has been rendered. ***"

The motion proceeds on the theory that the depositories of county funds created by the act approved September 15, 1915 (Gen.Acts 1915, pp. 348-350) are public officers, substituted county treasurers, and, primarily, that the provisions of Code, § 5938, authorizing summary judgments, under defined circumstances, against a county treasurer and the sureties on that officer's official bond, have application to such depositories; and, failing this, that Code, §§ 5899, 5900 justify the remedy.

It is manifest, we think, that a depository, qualified as the act prescribes, is not a public officer; is not merely a county treasurer by another name. Under that act a depository is but a contractee. The depository pays the county interest on the daily balances, and engages to keep and pay out the funds lawfully committed to its care. The depository can receive no compensation other than the advantage derived from having the deposit. In fact, the theory of the act in this respect is that the depository pays the county for the privilege of having the deposit. No term is provided as for an office or officer. The duty enjoined upon the county commissioners with respect to the selection of a depository is that that body shall invite "sealed bids" by banks; open the bids on the first Monday in December of each year, and "place the county funds" with the incorporated bank, offering "the highest rate of interest to the county on daily balances of bank deposits, such placing *** to be for the period of the following calendar year." There are no qualifications prescribed as for a public officer. Indeed, in the light of our governmental history, it is not perceivable how a corporation could be constituted a public officer. The bond exacted by the act contemplates only the "safety of said deposits." It is not an official bond in the sense such assurances are exacted and given to secure, generally, the performance of all the official duties a public officer is required to perform or discharge.

Furthermore the act itself in the counties within its contemplation (State ex rel. v. Bugg, 196 Ala. 460, 71 So. 699), expressly abolished the office of county treasurer on the "first Monday after the second Tuesday in January, 1917." The clear purpose was to abolish the office of county treasurer, and to create a mere contractual agency to perform functions theretofore performed by the abolished officer. It is not conceivable that the Legislature intended to abolish the office of county treasurer and by the same enactment reincarnate the extinct office by another name. The object was more rational than such a conclusion would attribute to the lawmakers.

Since the county depository is not a public, county officer--is a contractee only--and hence not a county treasurer by another name, the summary remedy afforded by Code, §§ 5899, 5900, or 5938 cannot be invoked unless some enactment renders available, by assimilation or otherwise, the summary remedy, against a depository, provided by the Code sections mentioned.

It is insisted that the following expression in section 5 of the act providing county depositories completely assimilates the summary remedy (Code, § 5938) that existed against county treasurers to the system of depositories now in effect in this state:

"The bank or banks so designated as depositories for county funds shall be charged with all the duties and subject to the same liabilities in so far as the safe-keeping and paying out of the funds of the several counties

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