State v. Hatcher, 7669.
Citation | 52 S.W.2d 794 |
Decision Date | 04 May 1932 |
Docket Number | No. 7669.,7669. |
Parties | STATE v. HATCHER et al.<SMALL><SUP>*</SUP></SMALL> |
Court | Court of Appeals of Texas |
Appeal from District Court, Travis County; C. A. Wheeler, Judge.
Suit by the State of Texas, on the relation of the trustees of certain common school districts in Lamar County, against W. Gregory Hatcher and others. From a judgment of dismissal, plaintiffs appeal.
Affirmed in part, and reversed in part and remanded.
Long & Wortham, Moore & Moore, and Dohoney, Beauchamp & Lawrence, all of Paris, for appellants.
S. L. Staples, of Austin, and J. L. Zumwalt, of Dallas, for appellee Hatcher.
Geo. E. Shelley, of Austin, for appellee American Surety Co. of New York.
The state, upon the relation of the trustees of several common school districts in Lamar county, sued W. Gregory Hatcher and his surety (American Surety Company of New York) upon his official bond as state treasurer for negligent failure to collect a certified check and bank draft which had been remitted to him in his official capacity to pay off certain bonds issued by the several school districts and owned by the permanent school fund. The trial court sustained a general demurrer and several special exceptions to plaintiff's petition, and overruled several special exceptions to the answers of defendants. Plaintiff declined to amend, and has appealed from a judgment of dismissal.
The suit is predicated upon the following facts disclosed by the petition:
The permanent school fund held bonds of the several districts, of the aggregate principal and interest accruing to April 10, 1926, of $19,948; on which date some of the bonds matured and others did not. March 8, 1926, application was made to the board of education to pay the principal of the non-maturing bonds on April 10, 1926, under R. S. art. 2787a. This permission was granted. April 10, 1926, the First State Bank of Paris (later herein called the Paris bank), which was county depository of Lamar county school fund, drew a draft on the Republic National Bank of Dallas (later herein called the Dallas bank), in favor of the state treasurer for $19,948; and delivered it to the county auditor, who mailed it to the state treasurer. Funds to meet the draft were deposited in the Dallas bank in the following manner: The county auditor presented warrants to the county treasurer (who was also cashier of the Paris bank), aggregating $19,948; and the county treasurer drew a check upon the Dallas bank, where the Lamar county school fund was (without the knowledge of the county commissioners) deposited, and had the amount of the check transferred on the books of the Dallas bank from the account of the school fund to that of the Paris bank. The latter closed its doors on May 26, 1926, up to which time the state treasurer had taken no steps to collect the draft; and the amount thereof was thereby lost to the school districts.
The cashier's check was issued May 8, 1926, by the Paris bank in favor of the state treasurer for $903.75 to cover bonds and interest due on that date, and owned by the permanent school fund. It was handled in the same manner as the draft and met a like fate.
Appellees contend that it was no part of the official duties of the state treasurer in collecting sums due the state, or any fund in his official custody, to accept anything but money; and that, therefore, he could act only in an individual capacity as the agent of the sender in handling remittances by check or draft. This is the general rule in the absence of governing statute. Figures v. State (Tex. Civ. App.) 99 S. W. 412; 37 Cyc. p. 1162b.
Appellant relies upon that portion of R. S. art. 2535, reading:
The cashier's check was drawn upon the Paris bank, and was therefore not included in the specified forms of remittances authorized by the act. Manifestly the right to remit in this form was not given by the statute, and therefore no duty could be imposed upon the treasurer to accept and handle the check. As to this item we sustain appellees' contention and the judgment of the trial court.
Since the draft was by a bank upon a Dallas bank, and therefore came within the express terms of the statute, we overrule appellees' contention and the court's judgment as to it.
It is quite true that the statute was passed for the convenience of the remitter. We think, however, it was also for the convenience of the state in collecting and handling its funds. But whether the latter or not, we are clear in the view that the statute imposed the duty upon the treasurer to accept for collection items in the form the statute authorized, and for any dereliction in that regard he would be liable as for failure to perform an official duty. The fact that the remittance does not constitute payment, and that the remitter remains liable until the draft is paid, does not militate against this conclusion. The duties of a public official are not confined to those he owes to the state or a municipality; and where a statute gives to individuals the right to deal with the officials in a particular manner touching their official duties, corresponding official duties are raised in favor of the individuals to have the business properly transacted by the officials in accordance with the prescribed method. Since the statute authorized remittance in this form, the remitter had the right to require its acceptance and proper handling. Such requirement, relating as it did to the treasurer, must necessarily so relate in his official capacity. Any other construction would render the statute nugatory, as compliance would be at the option or caprice of the treasurer, of which there is no intimation in the statute.
Appellees make the following further contention regarding the quoted provision of article 2535:
We find nothing in the language or context authorizing a construction which would limit the provisions to "remittances by or on behalf of State depositories to the State Treasurer."
The depository law was originally passed in 1905 (chapter 164, Gen. Laws, 29th Leg., p. 387). Section 12 of the act reads: (Italics ours.)
The first sentence of this section, by strict construction, might be held to apply only to persons holding money belonging to the state, or to any of its funds, and thereby to exclude money due or owing but not actually belonging to the state or to some state fund. The second sentence, however, which provides for the form of remittances, authorizes not only "said money," but expressly adds "any money due the State, or any of its funds." It will be noted that a much wider latitude is given in the form of remittances than in the present article, in that personal checks and bank drafts on any incorporated state or national bank authorized to do business in Texas are included.
The acts of 1907 (chapter 90, p. 183, Gen. Laws 30th Leg.) and 1911 (chapter 3, p. 2, Gen. Laws 32d Leg.) made no change in this section, and it was carried forward in the same language in the 1911 codification as article 2431.
The act of 1919 (chapter 145, Gen. Laws 36th Leg.) carried the pertinent portions of article 2431 into article 2429. It authorized the state depository board to designate depositories and reserve depositories, and permitted "such officers and other persons, who come into possession of funds belonging to the State to deposit such funds" in the depositories. The remittance clause was restricted to "such funds" and the medium to cash, etc., "or by bank draft on any State or National bank authorized to do business in Texas."
A literal construction would limit this amendment to funds belonging to the state and held in trust.
The act of 1923 (chapter 34, p. 60, Gen. Laws 38th Leg.) amended article 2429, and as amended was carried forward without change into the 1925 codification, as quoted first above....
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