Pace v. State Use Saline County

• Court: Arkansas Supreme Court
• Writing for the Court: BUTLER, J.
• Citation: Pace v. State Use Saline County, 189 Ark. 1104, 76 S.W.2d 294 (Ark. 1934)
• Decision Date: 19 November 1934
• Docket Number: 4-3593
• Parties: PACE v. STATE USE SALINE COUNTY

76 S.W.2d 294

189 Ark. 1104

PACE v. STATE USE SALINE COUNTY

4-3593

Supreme Court of Arkansas

November 19, 1934

Appeal from Saline Chancery Court; Sam W. Garratt, Chancellor affirmed in part.

Decree affirmed.

Danaher & Danaher, for appellants.

J. S Utley, Ernest Briner, W. A. Utley, D. M. Halbert, J. B Milham and Tom W. Campbell, for appellees.

BUTLER, J.MEHAFFY, J.

OPINION

BUTLER, J.

The facts in this case, which are undisputed, are that the treasurer of Saline County had been depositing the funds of the county, prior to December 4, 1930, in the "Benton Bank & Trust Company." At that time the treasurer was George Fish, who served as such until his death on June 20, 1931. The Benton Bank & Trust Company became insolvent, and on said 4th day of December, 1930, the Benton Trust Company was organized and took over the assets of Benton Bank & Trust Company. An agreement was signed by the depositors of the insolvent bank, including the county judge and county treasurer, to the effect that the county deposits in the old bank should be frozen in the new bank to be paid in installments, beginning December 20, 1930, when ten per cent. of the deposits should be paid, the remainder to be paid in four installments--ten per cent. on March 1, 1931, ten per cent. on June 1, 1931, ten per cent. on September 1, 1931, and sixty per cent. on January 1, 1932. When the old bank closed its doors and the new bank took over its assets and assumed its liabilities, the county had on deposit the sum of $ 28,647, all in one account, which included the funds belonging to the county as such and to its various school and road districts. When George Fish, the county treasurer, died, the appellant, S. H. Pace was appointed as county treasurer on July 7, 1931, and entered into the discharge of the duties of his office on that date. On July 14 he executed his official bond in the sum of $ 30,000 with the appellant company as surety thereon. On the same day the county court of Saline County designated the Benton Trust Company as one of the depositories, conditioned that it would execute a depository bond as provided by law. On the same day, pursuant to the order of the court, said trust company filed with the county clerk its bond signed by Robert F. Lambeth, H. W. Thompson, L. B. White, W. J. Cox, H. W. Finkbeiner, A. V. Martin, J. A. Cunningham, and B. A. Fletcher. This bond was examined by the county judge and the treasurer and approved by an indorsement in writing on the bond signed by them.

On July 22, 1931, the administratrix of Mr. Fish paid to S. H. Pace, county treasurer, the sum of $ 14,591.07, which constituted all the county funds in the possession of Fish as treasurer at the time of his death. This payment was made by check drawn by the administratrix in favor of S. H. Pace, county treasurer, on the Benton Trust Company. Pace issued his receipt for said sum, presented the check to the drawee bank which accepted the same and credited Pace with said sum as county treasurer. Thereafter Pace made deposits in the Benton Trust Company in his official capacity, drawing checks against the account until December 29, 1931, when that bank became insolvent and closed its doors. On this date the balance due Pace as county treasurer was the sum of $ 10,750.79. He filed his claim for the sum stated with the liquidating agent of the bank, no part of which has yet been paid.

Suit was brought by the State for the use and benefit of Saline County to recover said sum from S. H. Pace, county treasurer, and the surety on his official bond, and the signers of the depository bond executed as aforesaid. The court found in favor of the plaintiff against Pace and his surety and dismissed the case against the sureties on the depository bond. Both the State of Arkansas and Pace and his surety have appealed.

The first question for our consideration is, was the bond executed by the appellees a sufficient compliance with the statute to exonerate the treasurer and his surety from loss of the funds in the depository bank which became insolvent? The first legislation on the subject of county depositories which we need notice is act No. 163 of the Acts of 1927, which the appellants contend was the law governing the subject at the time of the execution of the depository bond involved, and that the bond executed complied with the requirements of that statute. Section 1 of that act provided that any bank or trust company desiring to become a depository should make a proposition to the county court, which court should, twenty days before the commencement of the term of court at which the proposition should be received and acted upon, give notice by publication in a newspaper published in the county of its intention to receive bids from the banks desiring to become the depository of the county funds; that the bank or banks proposing to become depositories should file with the clerk of the court a sealed bid stating the rate of interest to be paid for the county funds, and that the bid should be accompanied by a certified check of not less than $ 250, etc. Section 4 of the act provided for the execution of a bond by the successful bidder, payable to the county "with not less than five solvent qualified sureties, who shall own in this State real estate unencumbered and of value as great as the amount of said bond, * * * which may be approved by the county court."

It is contended by the appellants that later legislation on the subject of depository banks did not serve to alter the existing law. Act No. 151 of the Acts of 1929 was entitled, "An Act to Repeal Act No. 42 of the Acts of 1927 of the Statutes of Arkansas, to Provide for the Approval of County Depository Bonds by the County Treasurer, and for Other Purposes." It is argued that as act No. 42 of the Acts of 1927 does not refer to the subject of county depository bonds, but provides merely that the Governor should have authority to relieve any public officer and his bondsmen from the payment of any public funds which said officer might have had on deposit in any bank in this State that has been designated as State or county depository and which has become insolvent, therefore, act No. 151 of 1929, not having mentioned act No. 163, could not be deemed to be an amendment of said act. Section 1 of act No. 151 expressly repealed act No. 42. Section 2 of that act dealt with a different, subject, namely, that mentioned in the title, "To Provide for the Approval of County Depository Bonds by the County Treasurer, and for Other Purposes." This, by implication, amended that part of act No. 163 providing that depository bonds should be approved by the county court, and substituted "a surety bond" for the personal bond of act 163. It is contended that this violates § 23 of art. 5 of the Constitution, which provides that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length. This section has no application to implied amendments by later legislation to existing laws, and § 2 of act No. 151 does not offend against it. Perkins v. Du Val, 31 Ark. 236; Little Rock v. Quindley, 61 Ark. 622, 33 S.W. 1053; Boyer v. State, 141 Ark. 84, 216 S.W. 17.

Appellants also insist that act No. 139 of the Acts of 1931, purporting to be an amendment of act No. 151 of 1929, does not affect act No. 163; first, because no mention is made in act No. 139 of act No. 163 of the Acts of 1927. The title of that act is: "An Act to Amend § 2 of Act No. 151, Approved March 20, 1929." The pertinent part of that act is as follows:

"No award by any county court or judge thereof, to any bank or banks of custody of any county funds shall be effective until each such bank receiving such award shall file with the county clerk a bond conditioned for the faithful and safe holding and keeping of all county funds placed with it and the due payment of the same according to law; nor until such bond shall have been approved by the county court or the judge thereof and the county treasurer.

"Such bond may be executed by a corporate surety company authorized to do business in this State, or may be signed by not less than ten solvent, qualified sureties, who shall own in this State unincumbered real estate of the value of the amount of the bond over and above the debts and exemptions of the sureties. Each surety shall make an affidavit giving the description of the real estate owned by him and its value over and above his debts and exemptions. Any citizen of the county may appeal to the circuit court from any approval of the bond in the same manner and to the same effect as now provided by law in the approval of official bonds."

It is true no reference is made to act No. 163 of the Acts of 1927, but it deals with the same subject as § 4 of that act and provides for a different number of sureties, prescribing how their qualifications as such may be shown. While being entitled "An Act to Amend § 2 of Act No. 151," it in reality impliedly amended § 4 of act No. 163; and this may be done, although no mention of the former act is made in the act which impliedly amends it. Porter v. Waterman, 77 Ark. 383, 91 S.W. 754.

It is further argued by counsel for the appellants that act No. 139 was repealed by act No. 222 of the Acts of 1931. That act contains two sections. Section 1 is as follows: "That act 151 approved March 20, 1929, of the acts of the General Assembly of the State of Arkansas and published on page 766 of vol. 1 of the Acts of the General Assembly of the State of Arkansas at the session of 1929 and entitled: 'An Act to Repeal Act 42 of the Acts of 1927 of the Statutes of Arkansas to Provide...