Bank of Chatsworth v. Hagedorn Construction Co. , 156 Ga. 348 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

One of the vital questions in this case is, what is the proper relation of the Bank of Chatsworth to the County of Murray and the public, under the arrangement by which it received and was to pay out the money arising from the sale of the bonds of the county issued for the purpose of the improvement of the public roads and the building of public bridges in that county, and arising from the contribution by the United States government toward the cost of Project 178? It is insisted by the bank that the relation between it and the county is the ordinary one existing between a bank and a depositor of funds therein. On the other hand, it is the contention of the petitioner that the relation between the bank and the county is that between a public officer, entrusted with the receipt, safe-keeping, and expenditure of the public funds of the county. If this relation was to be gathered solely from the terms expressly written into the contract, a copy of which is set out in Exhibit A, and nothing more appeared, then we would have to sustain the contention of the bank. On the face of the contract, and disassociated from certain laws to which we shall refer, the relation between the parties was that of a bank and its depositor. But there are other matters to which we must look in determining what was the true relation between the parties. By the act of the legislature of Aug. 14, 1915 (Ga. Laws 1915, p. 319), the office of county treasurer was abolished from and after Jan. 1, 1917. By the act of Aug. 17, 1917 (Ga. Laws 1917, p. 375), “a board of supervisors of roads, bridges and road funds of the County of Murray” was established. By the act of Aug. 18, 1919 (Ga. Laws 1919, p. 706), it was provided “the board of supervisors of roads and revenues shall take charge of the treasurer’s books of said county and all moneys belonging to said County of Murray, and shall deposit the same in the safety vaults of some solvent bank in said county that will pay the highest rate of interest on the daily balance.” This act further declares: “ That said board of supervisors shall require the bank selected as the depository for the books and funds of the county to give a good and sufficient bond to indemnify the county against loss.” This act contains the provision : “ That the said bank selected as a depository shall keep the accounts of the county, receive and pay out the moneys of the county on proper vouchers approved by the board of supervisors of roads and revenues of said county, without charge or expense to the county; . . that said bank shall render to the board of supervisors of the county monthly itemized statements of all money received or paid out.” The bid of the bank for the road funds arising from the sale of the bonds issued and sold for the improvement of the public roads and for building the public bridges of this county must be construed in the light of the statutory provisions which entered into and formed a part of the contract between the county and the bank. West End &c. Ry. Co. v. Atlanta Street R. Co., 49 Ga. 151; Knorr v. Raymond, 73 Ga. 749; Watkins v. Kobiela, 84 Neb. 422 (121 N. W. 448); People v. Mct. Surety Co., 211 N. Y. 107 (105 N. E. 99); 6 R. C. L. 855, § 243.

Thus construing this contract, the hank became a depository of this road fund of Murray County. But what about the deposit by the county in this bank of the $29,000 furnished by the Federal government to the county in part payment of the costs of Project 178? The'circumstances under which this sum was deposited in the bank are. not alleged in the petition as amended. In the amendment the plaintiff alleges that the bank, in addition to the $100,000 received from the sale of the county’s road;bonds, “also received other large sums paid to Murray County by the Georgia State Highway Department, said funds being those received from the United States Government in aid of roads, bridges, etc., being built in Murray County, and that said additional sum so received by the Bank of Chatsworth aggregating at least $29,000.” As to this sum, the bank received it, so far as appears, under an implied contract between it and the county for its receipt and disbursement. It is insisted by the bank that the implied contract under which this fund was received is the ordinary implied contract which arises when a depositor puts his money in a bank. The very able counsel for the defendant asserts that this court will presume that, prior to the sale of the road bonds and to the receipt of this latter sum, the supervisors had complied with the law, and had selected a' county depository other than this ban'k. But why indulge such exclusive presumption? Why exclude the Bank of Chatsworth from this presumption? Conceding that we should indulge, this general presumption,'then we must likewise indulge the special presumption that the supervisors had either selected the Bank of Chatsworth as the depository of all counfcy ■funds, or had selected it as the depository of these county road moneys. As to these road funds, we indulge the presumption that the Bank of Chatsworth received them under an implied contract to handle them as the depository of the county pro tanto at least; 'and the terms of the local act, providing for the selection of such depository, form a part and parcel of the implied contract, as they do of the express contract set out in Exhibit A. To indulge a contrary presumption would impute to the supervisors a violation of duty, and to the bank a participation therein.

Is such depository a quasi-public officer? The duties of the depository of funds of this county under this local act are the same duties which were discharged by the county treasurer before the latter was abolished. Such “depository shall keep the accounts of the county, receive and pay out the moneys of the county on proper vouchers approved by the board of supervisors of roads and revenues of said county.” Ga. Laws 1919, p. 706. These were the principal' duties of the county treasurer. Civil Code (1910), §§ 574, 576; Smith v. Outlaw, 64 Ga. 677. This court has held that a county treasurer is a public officer. Bradford v. Justices, 33 Ga. 332; Massenburg v. Commissioners, 96 Ga. 614 (23 S. E. 998). It necessarily follows that an agency substituted in place of a county treasurer, whose office has been abolished by law, to discharge the same or similar duties of the latter, is at least a quasi-public officer. Such an agency selected in the manner prescribed by law, with the designation or title of depository given it by law, which exercises functions concerning the public assigned to it by law, is a public officer. Bradford v. Justices, supra. Certainly the bank is a corporation owing a public duty the discharge of which can be enforced by mandamus. Civil Code (1910), § 5442.

The Bank of Chatsworth, having been selected county depository of the road funds of Murray County, thus became a public officer of said county, against which mandamus will lie to compel it to pay a warrant drawn on such funds by the board of roads and revenues of said county, which succeeded the board of supervisors of said county, if such depository improperly refuses to pay such warrant. This court has held that mandamus will lie to compel a county treasurer to pay a warrant, drawn upon him, when payment thereof has been improperly refused by that officer. Coleman v. Neal, 8 Ga. 560; State v. Bell, 9 Ga. 334; Shannon v. Reynolds, 78 Ga. 760 (3 S. E. 653); Neal Loan &c. Co. v. Chastain, 121 Ga. 500 (49 S. E. 618); Civil Code (1910), § 5440. It follows that mandamus will lie against a county depository whose duties require him to receive and pay out county funds on proper vouchers.

This brings us to consider the question whether the petition makes out a case for a mandamus absolute against the defendant. A great many reasons are urged to show that the petition for mandamus does not state a case which entitles the plaintiff to a mandamus absolute. Some of these contentions, such as that the relation between the bank and county was that merely of bank and depositor, that the county depository is not a public officer, that it is not alleged that there is a general depository in the county, that it is not alleged that there was any other contract between the county and the bank than that set out in Exhibit A, that the •$100,000 was deposited with the bank as a depository, and that such depository was not made the guardian of the county funds to the same extent as a county treasurer, have been disposed'of by what is said above. Some, such as that it is not alleged that the contract between petitioner and the county was in writing and spread upon the minutes of the supervisors, so as to be a binding, enforceable contract, are without merit. But the main one of these contentions of the very able counsel for petitioner is that it is not alleged that, at the date of the warrant in question, there was any part of the $139,000 deposited in the bank, not cheeked out by the supervisors, and that it is not alleged that, at the date of the warrant, the county had not drawn out all of the funds deposited in the bank, the allegation that on March 31, 1933, “ lawful warrants for road purposes ” issued by the county authorities had. not consumed all of said funds not being equivalent to an allegation that there was in fact a part of said funds in the bank, as, under Exhibit A, the bank was bound to honor the checks of the county, whether for lawful road purposes or not, and the allegation that at said time there was more than $18,000 of said funds unexpended for lawful road purposes not being equivalent to the charge that at the time there was in fact in the bank, unchecked out by the county, any part of said funds. This brings us to consider this contention of the defendant. Where the proper county authorities, by formal resolution, acknowledge the justness of a claim for a road improvement against the county and order their clerk to issue to the claimant a warrant for the amount of such claim “on the road fund at the Bank of Chatsworth,” which is the county depository of said fund, which is done by said clerk, and the warrant so drawn is presented to such depository bank for payment, which is refused by the latter, all of the above facts being set out in the petition for mandamus, is such petition bad for lack of an allegation that on the date of such warrant the bank had on .hand a sufficient amount of said road fund to pay the warrant ?

The resolution directing the clerk of the county commissioners to issue this warrant expressly .states that it is to be drawn “on the road fund at the Bank of Chatsworth.” The claim for which the warrant issued had been audited by this board, and its justness acknowledged, and the liability of the county fixed by this formal resolution. The petition further alleges that the county authorities had set apart a sufficient amount of the road fund in the possession of the county depository for the payment of this claim. Under these circumstances the presumption arises that the county depository had on hand, at the date of the issuance of this warrant and of its presentation for payment, a sufficient amount of the road fund to pay the same. It is undoubtedly true that, when it is sought to enforce payment of a county warrant for an audited and allowed claim, a mandamus absolute will be refused if it appears that there are no funds available to pay the same. State ex rel. Williams v. Hiers, 51 S. C. 388 (29 S. E. 89); State ex rel. Bryson v. Daniel, 53 S. C. 201 (29 S. E. 633); McCaslan v. Major, 64 S. C. 188 (41 S. E. 893). The lack of available funds to pay a county warrant is a matter of defense rather than a necessary factor of an applicant’s case for mandamus. Since the presence or absence of such funds is a fact lying peculiarly within the knowledge of the officer whose duty it is to keep and pay out the funds of the county, and can ’rarely, if ever, be certainly known by the claimant except with the aid of such officer, it is but fair that when that defense is relied upon it should be alleged in the return of the officer to the mandamus nisi, so that an issue on that point can be máde up and determined, with the burden upon the officer to show the absence of necessary funds. So we are of the opinion, that, to meet the above presumption of available funds to pay this county warrant, the burden is upon the defendant to set up lack of such funds as a defense in its answer to the mandamus nisi. So the application for mandamus in this case is not bad for lack of an allegation that the Bank of Chatsworth had in its possession, at the time of the issuance of this warrant, a sufficient amount of the road funds to pay the same.

We do not construe the statement in the petition, that the bank, on the presentation of this warrant for payment, entered thereon, when it refused its payment, a memorandum of insufficient funds, as an admission or allegation by the plaintiff that such memorandum was true. On the contrary we construe the petition as denying the truth of this memorandum placed upon the warrant by the bank. For do we construe the petition to set up that the fund properly applicable to the payment of this claim had been wrongfully diverted by the bank. If it appeared from the petition that the county depository had wrongfully applied all of these funds to the payment of claims to which they could not be rightly applied, then the question would arise whether mandamus would lie against an officer who had misapplied all funds applicable to the payment of a claim, when by reason of such misapplication he was without funds to pay the same. See Universalist Church v. Columbia, 6 Ohio, 445 (27 Am. D. 267); Somerville v. Wood, 115 Ala. 534 (22 So. 476); Bates v. Porter, 74 Cal. 224 (15 Pac. 732); Township Board v. Boyd, 58 Mo. 276; Quaker City Ntl. Bk. v. Tacoma, 27 Wash. 259 (67 Pac. 710); Rice v. Walker, 44 Iowa, 458; Williams v. New Haven, 68 Conn. 623 (36 Atl. 61); State v. Stanton, 14 Utah, 181 (46 Pac. 1109); In re Marvin, 60 Hun, 585 (15 N. Y. Supp. 500); Williamsport v. Commonwealth, 90 Pa. 498; People v. Treanor, 15 App. Div. 508 (44 N. Y. Supp. 528); Pouder v. Tate, 132 Ind. 327 (30 N. E. 880); State v. Craig, 69 Mo. 565; First Nat. Bk. v. Arthur, 12 Colo. App. 90 (54 Pac. 1107); Duval Co. v. Jacksonville, 36 Fla. 196 (18 So. 339, 29 L. R. A. 416); State v. Vanarsdale, 42 N. J. L. 536; People v. Stout, 23 Barb. (N. Y.) 338; Pike Co. Comrs. v. People, 11 Ill. 202. But this question is not now for decision by this court, as the lack of funds from any such misapplication does not appear from the petition in this ease.

Neither are we now called upon to decide the question whether the bank would be liable for the payment of these funds upon checks or warrants of the supervisors for purposes other than the improvement of public roads or building of public bridges, as that question is not raised under the facts of this record.

If the trial judge committed any errors in his rulings upon the grounds of the special demurrer and motion to strike, they are • not of sufficient moment to require a reversal.

Judgment affirmed.

All the Justices concur, except