DocketNumber: 8 Div. 471.
Citation Numbers: 146 So. 607, 226 Ala. 266, 87 A.L.R. 164, 1933 Ala. LEXIS 515
Judges: Foster, Anderson, Gardner, Bouddin
Filed Date: 3/9/1933
Status: Precedential
Modified Date: 10/19/2024
It is not necessary for the purposes of this case that we consider whether the rule of sovereign right to a preference which the state has extends to a claim by a county against an insolvent bank in liquidation after the county funds have been separated from those of the state and deposited in such bank to its credit, for we have held that such right does not in any event exist when the deposit was made pursuant to valid legal authority. Green, Sup't v. City of Homewood,
The only contention of appellant in this respect, aside from the constitutionality of the law, is that section 317, Code, was not compiled with. It provides that the board shall require "adequate bond of said bank to secure the safety of said deposit." It is argued that this provision is mandatory, that the bond shall be conditioned "to secure the safety of said deposit." But such is not the meaning of the law as we interpret it. But it means that in order to secure the safety of the deposit a bond shall be required. It specifies the penalty of $50,000, or such other sum as the county commission shall fix. It does not declare the form of it in any respect. We think it means that for the purpose of securing the deposit the county commission shall take a bond which shall be binding and effective as a security for it, in such penalty as they may fix, and, if none other is fixed, it should be $50,000. A bond was executed in the penal sum of $50,000 payable to the state of Alabama, conditioned that the bank "shall faithfully perform all the duties which are or may be by law required of it as such county depositary for said county and State during the time he continues in said office or discharges any of the duties thereof." It is an ordinary official bond. Section 2595, Code.
It is quite true that a county depositary is a contractee and not a public officer (State ex rel. Mims v. Bugg,
The statute does not fix the payee of the bond. Since it is payable to the state, the name of the state for the use of the county is available with the same effect as though the bond were payable to the county. Such a bond so payable may be acceptable as one adequate "to secure the safety of said deposit."
Appellant does not contend that it is invalid as a common-law undertaking. If so, and it was so accepted and acted upon, it is what the statute contemplates. The bill does not show that such facts did not occur. Moreover, the bond was given under authority of law, and under such circumstances, unauthorized provisions will be "read out of it," and necessary matter, though not expressed, "will be read into it" and given effect (American Book Co. v. State,
We cannot sustain appellant's contention that such a deposit made in good faith by authority of law for the convenience of the county, and as an economical and safe method of preserving the safety of its funds, is a lending of the credit of the county to the bank in violation of section 253, Constitution (see sections 93, 94, Constitution). Many states are noted in 59 Corpus Juris 206 as having such constitutional provisions. It is said that the test of the constitutionality of a statute requiring the use of public funds, is whether the statute is designed to promote public interests as opposed to furthering the advantage of individuals (Patrick v. Riley,
Both theories are consistent with our case of Garland v. Board of Revenue of Montgomery,
We think that the circuit court correctly held that appellant did not show a right to preference of payment out of the assets of the insolvent bank in liquidation.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
Compton v. Marengo County Bank , 203 Ala. 129 ( 1919 )
American Book Co. v. State , 216 Ala. 367 ( 1927 )
Jenkins v. State Ex Rel. Watson , 219 Ala. 554 ( 1929 )
Green v. City of Homewood , 222 Ala. 225 ( 1931 )
Montgomery v. Sparks , 225 Ala. 343 ( 1932 )
Royal Indemnity Co. v. Young & Vann Supply Co. , 225 Ala. 591 ( 1932 )
Veterans' Welfare Board v. Jordan , 189 Cal. 124 ( 1922 )
Patrick v. Riley , 209 Cal. 350 ( 1930 )
Mississippi Department of Human Services v. Timothy Lee Murr ( 1998 )
Montgomery v. City of Athens , 229 Ala. 149 ( 1934 )
MISSISSIPPI DEPT. OF HUMAN SERVS. v. Murr , 797 So. 2d 818 ( 2000 )
Valley National Bank v. First National Bank , 83 Ariz. 286 ( 1958 )
Montgomery v. Wadsworth , 226 Ala. 667 ( 1933 )