Miller, State Tax Collector v. Batson

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: Miller, State Tax Collector v. Batson, 134 So. 567, 160 Miss. 642 (Miss. 1931)
• Decision Date: 12 May 1931
• Docket Number: 29270
• Parties: MILLER, STATE TAX COLLECTOR, v. BATSON et al

134 So. 567

160 Miss. 642

MILLER, STATE TAX COLLECTOR, v. BATSON et al

No. 29270

Supreme Court of Mississippi

May 12, 1931

APPEAL from circuit court of Stone county, HON. W A. WHITE, Judge.

(In Banc.)

1 DEPOSITORIES.

Depositories of county funds, though not public officers in constitutional sense, are quasi public officers (Code 1930, sections 4340--4351; Const. 1890, section 135, as amended in 1924).

2 OFFICERS. "De facto officer" is person who exercises duties of office which he professes to occupy under various circumstances.

De facto character may result from person occupying office, first, without known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because of want of power in electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.

3. OFFICERS.

Mere usurper of office without color of title, who has for considerable time exercised powers thereof with acquiescence of public authorities and public is "de facto officer."

4. OFFICERS.

Acts of de facto officer are valid, so far as interests of public and of third persons are involved (Code 1930, section 2899).

5. TAXATION. County tax collector and surety on official bond held not liable to state tax collector for funds deposited in insolvent bank, which, under surrounding facts and circumstances, constituted de facto depository (Code 1930, sections 2899, 4340--4351; Const. 1890, section 135, as amended in 1924).

Bank in which funds were deposited by sheriff and tax collector of county had been duly designated as a depository by the board of supervisors, but was not a legal depository because of its failure to put up the required security and to receive a commission. Notwithstanding such facts, all public authorities, both state and county, for three years dealt with bank and recognized it as a legal depository, and the sheriff and tax collector was required to so deal with it. He acted in good faith, believing that bank had become a legal depository. Subsequently, the bank became insolvent, resulting in considerable loss.

ETHRIDGE, J., dissenting.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Stone county, HON. W. A. WHITE, Judge.

Action by W. J. Miller, state tax collector, against O. E. Batson, sheriff and tax collector of Stone county, and another. Judgment for the defendants, and the plaintiff appeals. Affirmed.

Affirmed.

Chalmers Potter, of Jackson, for appellant.

The pertinent provisions of the statutes involved are sections 4739-4752, Hemingway's Code of 1927.

A public officer having public monies in his hands is an insurer of the safety thereof, and is only relieved from responsibility by an act of God or the public enemy.

State v. Lee, 72 Miss. 281; Griffin v. Levee Commissioners, 71 Miss. 767.

Inasmuch as the Citizens' Bank of McHenry never filed the securities required by law, it never became a legal depository.

The Bank of Gulfport v. Gulfport, 117 Miss. 591, 78 So. 519; Powell v. Tunica County, 107 Miss. 410.

The board nor anyone else could have compelled Batson to have deposited the county funds in the Citizens' Bank of McHenry.

State v. Ewert, 189 N.W. 522; State v. Krauss, 202 N.W. 319.

Under the circumstances of the bank having failed to qualify as a legal depository, Batson is liable.

Hinton v. State, 156 P. 161.

H. H. Parker, of Lyman, U. B. Parker, of Wiggins, and J. A. Covington, Jr., of Meridian, for appellees.

The county treasurer's duties as formerly existing are set out in the Code of 1906, chapter 26.

Chapter 210 of the Laws of 1924 is our county depository law, practically as it is now written in our 1930 Code, and by this law the Legislature passed the duties of the county treasurer on to the chancery clerk to perform, with the one exception, and that being the receiving and disbursement of the funds. This, of course, was passed to the county depository to be selected in each county.

Section 4026, Hemingway's 1927 Code, section 293, of the 1930 Mississippi Code, makes the clerk of the board of supervisors county auditor. His duties will be found set out in section 4030 of Hemingway's Code, 298 of the 1930 Mississippi Code.

An office is defined as a continuing charge or employment, the duties of which are defined by law.

Shelby v. Alcorn, 36 Miss. 273.

The essential difference between an employment and an office is that in an office the duties and powers are prescribed by law, while in an employment the duties and power are either prescribed by contract or prescribed by some person having power and authority to direct the employee as to the services such employee shall perform.

McClure v. Whitney, 120 Miss. 350, 82 So. 259.

If the court shall hold that county depositories would not fall within the rule or designation of an office, certainly it is that they are in the nature of an office to such a great extent, and their duties pertain to the public so much so, that they would constitute at least a quasi office.

U. S. F. & G. Co. v. State of Kansas, 81 Kan. 660, 106 P. 1040, 26 L. R. A. (N. S.) 865; Snatifer v. Topeka, 80 Kan. 341, 102 P. 909; St. Louis County v. American Loan & Trust Company, 75 Minn. 489, 78 N.W. 113.

The official acts of any person in possession of the public office, and exercising the functions thereof, shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not, and whether such person be lawfully qualified or not; such person shall be liable to all the penalties imposed by law for usurping unlawfully and holding office, or for exercising the functions thereof without lawful right, or without being qualified according to law.

Section 2899, Code of 1930.

The above section is declaratory of the common law.

Shelby v. Alcorn, 36 Miss. 273.

An officer, is de facto, who exercises the power and discharges the duties of an office, being in the possession of the same, under color of authority, but without actual right thereto.

Adams v. Miss. State Bank, 75 Miss. 701, 23 So. 395.

A person who is actually in possession of an office under color of title by authority of those having power to elect and who is performing its functions is a de facto officer whose acts cannot be impeached in any proceeding in which he is not a party.

Rosetta v. Bay St. Louis, 97 Miss. 409, 52 So. 785.

A de facto officer is one who is such in fact but not in law, and whose acts are as effective as the acts of a de jure officer.

State v. Boykin, 114 Miss. 527, 75 So. 378.

Lawful acts of a de facto officer are binding upon third persons.

Sumrall v. Poke, 118 Miss. 687, 79 So. 847.

Bond commissioners appointed by the mayor and board of alderman to construct sea wall are de facto officers, whose right to office can be questioned only by the state.

113 Miss. 175, 74 So. 272.

Although the county depository of Stone county is not an officer, nor is it quasi office, but is a depository by contract, in that case it would nevertheless have been a de facto depository.

State for Use of Bragg v. Bashem, 77 Miss. 688, 27 So. 966.

Anderson, J., Ethridge, J., dissenting.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Stone county against the appellee, O. E. Batson, sheriff and tax collector of that county, and appellee United States Fidelity & Guaranty Company, as the surety on the tax collector's bond, to recover the sum of fifty thousand dollars, public funds belonging to said county, and the statutory penalty of thirty per cent thereon for withholding the same; and, in addition, appellant's statutory commission thereon, of twenty per cent, which funds had been by Batson, as sheriff and tax collector, deposited in the Citizens' Bank of McHenry, which bank had failed and gone out of business. The ground upon which recovery was sought is that the Citizens' Bank of McHenry, when the funds were deposited therein, was not a legal depository, and therefore Batson, as such sheriff and tax collector, became and was an insurer of said funds, and liable therefor on his official bond.

A final judgment for appellees was rendered on the pleadings, from which appellant prosecutes this appeal.

To the declaration appellees interposed two special pleas, in the first of which he set up substantially the following facts: That appellee Batson, in depositing public funds in his hands as sheriff and tax collector, acted as a ministerial officer, and had no connection with, or control over, the judicial action of the board of supervisors in the selection of the Citizen's Bank of McHenry as a depository of the county; that it became and was his duty, as such ministerial officer, to report all collections of public funds to the county auditor, and to obey the pay warrants issued to him by such auditor; that prior to the deposit of the funds sued for in the Citizens' Bank of McHenry, the board of supervisors, in the exercise of it judicial functions, selected and designated that bank as the county depository; that...