Merchants & Planters Bank v. Citizens Bank , 147 Ga. 366 ( 1917 )

Hill, J.

(After stating the foregoing facts.)

1. This case is here on exception to the refusal of the presiding judge to grant a restraining order and rule nisi as prayed for in the petition. The first question is whether the designation of the Citizens Bank of Hazlehurst under the act of 1916 (Acts 1916, p. 453), which requires that the ordinary, the clerk of the superior' court, and the tax-collector of Jeff Davis county shall appoint and designate some solvent chartered bank or banks in that county as a county depository, is illegal and void on the ground that J. C. Watkins, who had been elected ordinary but had not qualified as such, participated with the clerk of the superior court and the tax-collector in designating the depository in 'this case. It is are gued that the statute is mandatory; and that all three officials must be present and unite in the désignatioñ; and that inasmuch as the ordinary-elect'had not qualified as such, his participation in the designation of the depository rendered void the act of all three,,or of the-majority who were qualified. We do not agree to this view. In Crawford v. Howard, 9 Ga. 314, it was held that “A sheriff duly elected, but not having executed a bond according to law, is an officer de facto, and his acts are valid when they ‘concern the public or third persons who have an interest in them.” It was said in the' opinion that one is an officer de facto when he comes into office by color of election, and all of his acts are good until removed. And Cbnstantinéau, in his Work on the De Facto Doctrine, 198, § 137, says: “Irregularities relating to the official bond are regarded in the same light as irregularities in connection with the official oath, and are no impediment to a person becoming an officer de facto. . . The above principle is also applicable where the bond is- not given, approved, filed, or rendered within the time, or as, prescribed by law! Thus, the following persons were held officers de facto: A State treasurer whose bond was not approved or filed until after the day designated by statute; county treasurers whose bonds were not approved at all, or not until a date after the time allowed therefor; a sheriff who did not execute a bond within thirty days after his election, as required by law; a constable, a tax-collector, and a county treasurer, who similarly failed;” (and other instances, all sustained by decisions cited). It. is not insisted that the ordinary-elect had failed to qualify in any particular except as to giving the bond required. We therefore hold that he was a de facto officer; and although his bond was not approved by the judge of the superior court until the day after the act complained of, his acts as such de facto officer were valid. In view- of the foregoing, it is unnecessary to pass upon the question whether the action of the two de jure officers in designating the depository rendered the designation valid, irrespective of the action of the de facto officer.

2. Did the officers authorized to act abuse their discretion in designating the Citizens Bank of Hazlehurst; and if not, did the court err in refusing to sanction the petition and in not granting a temporary restraining order? We do not think there is anything to show that there was an abuse of discretion. It is insisted that under the act of 1916 (supra) the acting officers must designate the bank or banks which "shall make the best and most advisable bid for the office of county depository.” It is further insisted that the meaning of the statute is that the Bank making the highest- bid — the bid that brings into the county the largest revenue by reason of the highest rate of interest bid — should be selected, and that the Merchants & Planters Bank made the best and most advisable bid because of that fact, and consequently the taxpayers of Jeff Davis county are damaged in the loss of 2 per cent, interest on several thousand dollars per annum. The act itself did not designate the depository, but left it to the officers mentioned in the act to designate the bank making the bést and most advisable bid. This did not necessarily mean that the bank making the highest bid should be selected. The authority conferred by the act involved the exercise of a discretion by the officers, and the allegations in the petition are insufficient to show that they abused their discretion in this case. There may have been other considerations moving them to select one bank in preference to another, besides the promise of a higher rate of interest, for instance, the question of solvency, etc.; and while no such question is raised by the record, yet the record itself does not disclose such facts as to show an abuse of discretion on the part of the officers in designating one bank in preference to the other; and consequently the court did not err in refusing to sanction the petition and grant a restraining order and rule nisi.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.