Puckett v. Walker , 194 Ga. 401 ( 1942 )

The rulings in Lamb v. Dart, 108 Ga. 602,Wiley v. Sparta, 154 Ga. 1 (supra), and AmericanSurety Co. v. NeSmith, 49 Ga. App. 40 (174 S.E. 262), are to the effect that a public officer is an insurer of public funds lawfully in his possession. While these decisions dealt with the liability as to public funds, there is no reason why the principle should not be applied to any funds lawfully in the custody of a public officer as custodian. See the authorities cited in those decisions. Although the moneys deposited with the clerk in the instant case were those of litigants, he was none the less an insurer. Nothing to the contrary was decided in Ricks v. Broyles, 78 Ga. 610 (supra), nor was that case overlooked in Wiley v. Sparta (supra), as a reference to the opinion will show. When the officer is an insurer of the funds of which the law made him the custodian, that is, when he is absolutely liable for the return of the moneys so received by him, his liability is met and discharged when he accounts for the identical amount so deposited with him, without interest. 10 Am. Jur., § 21. The editor of the note in 8 Ann. Cas. 389, 391, to Rhea v. Brewster,130 Iowa, 729 (107 N.W. 940), states that such is the general rule, and cites and analyzes a number of decisions to that effect. There is also a collection of authorities supporting a similar statement by the editor in 91 Am. St. R. 492, 527, to Feller v. Gates,40 Or. 543 (67 P. 416, 56 L.R.A. 630). The distinction pointed out in People v. Walsen, 17 Colo. 170 (28 P. 1119, 15 L.R.A. 456), is the same as that found in many decisions. The court said: "In those jurisdictions where the liability of the officer is held to be absolute, no action can be maintained against him for the interest or profits made upon the money, in the absence of a statute authorizing such recovery; while on the contrary, in those jurisdictions in which the officer is held to a less strict liability a different rule prevails." The authorities proceed upon the theory that when the obligation of the official is absolute, he takes title to the fund, although a qualified title; and although the duty rests upon him to return it, he can not be charged with the incidental advantages received for the use of the money. Since the law does not tell him what to do with the money until ordered to disburse it, he is not prohibited in the meantime from making such use of it as he desires. It may be argued that it is against public policy to permit him to do this. In ascertaining what is the public policy of the State, we are permitted to look only to the constitution and the laws enacted in pursuance thereof. Adams v. Bass, 18 Ga. 130, 146, 164;Smith v. DuBose, 78 Ga. 413, 439-440 (3 S.E. 309, 6 Am. St. R. 260). If these do not condemn an act or a course of conduct, the courts are not authorized to decide cases based on what is supposed should be the dictates of a sound public policy. Under this view of the law, the executrix representing the estate of the former clerk would be entitled to the sum in question, which is interest he caused to be earned on the deposits held by him. This conclusion is reached without regard to the ruling in Renfroe v. Colquitt, 74 Ga. 618 (supra), and without reference to the act approved March 16, 1933 (Ga. L. 1933, p. 78 et seq.), the terms of which act are not here applicable. I dissent.