     OFFICE    OF THE ATTORNEY           GENERAL     OF TEXAS
                               AUSTIN

                                                             June 14, 1939


sbr. A. 5.   Bickerson
County Auditor
~~ontgomary County
Conroe, Texa.a
Dear Mr. Hiolcer8oll:




                                                   Q the above afat&
                                                   rsful eonsideretfon,
                                               te te be the wrraot
%rlmmr to yo
tiontotwu    Art


                                                   0 shall    aeitheP




                       other things,     grwidea  that        the word
                   et3 a aerp0rati0zk.     Fwthemore,          it has been
held that the ror12 "parson - islelndes a rarporation rlthin
the meaning of the due proasas elause    oil the P&iesal Gem-
at~tntlon,
 MT. A. E. Hiokereon,                     June 14,   1939,   Fage 2.



 the faithful                   pertonnanos
                              of all duties and obligations           Ue-
 TOlring       by         lawdepository,
                                  upon   theand for the   payment,
Upon prerentation     of all checke drawn upon such dtposltory
by the County    Treasurer of the oounty, and that the oounty*s
fund8 *shall   be falthfully~kept      by said depository      and ao-
counted for locordlng to law.'         And Artlole  2828 of the
Clvll Cods prorldee,     in cffoct,    thnt abroh depository       is
Oonstituted   the *TreasumrW of all school funds of the
oopnf7.
                    In the aase         of P;ennspln County v. Stats Bank,
64 Klnn. 180,                   66 N.W. 143, the Suprene Court of b:lnnesota
stated:
                 Vepoeitories  of county funds imder the statute
           are quasi publio offiaera.   They are financial  custo-
           diana of the ooimty, and hold Its funds in place of
           the Treasurer.-
                    And It m-as held           by the Suprene Court of Alabama:
                 "In ocmmon aooeptenoe of that term, a depository
           is a oontraotee  with ministerial    duties, performanoe
           of xhloh mar be ompelled     in proper oases by the
           writ of emndamua.” (Flret Natlonal Bank vs..Terry,
           et al, 83 So. 170.1

                    &her aeotion of the Constitution
                    Tha                                 which we
think is       here applloable  is Seotlon.20 of ArtiOle 5, whioh
provides :
                  WQ person who at anr time ma7 have been
           a collector   0f taxes, or rho may have bean other-
           vise entrusted   with publio money, shall be eligible
           to the Legislature     or to any office   of profit  or
           trust   under the State Oovornmnt,      until he shall
           have obtained a discharge     for the amount of suoh
           oolleotions,   or for all pub110 moneys with whioh
           he may hnve been entrusted."
            Whlle the title      to pub110 funds whfoh have been
deposited with a depository        bank passes to the bank, yet,
as above shown, the depository        is under the legal duty to
8afely keep and account for suoh funds.           The liability Of
the depository      1s a aontlnuing   one and does not cease un-
til the seleotlon      of a new depository    and the giving of the
bond bT the latter,      or until 80 days after the time fired
for the appointment      of a suooessor.     Article  2529, R. C. S.
1925.    Therefore,    It follows   8s a Protter of oourso, that
Mr. A. E. Hlokaraon,        June 14, 1939,      Page 3.


within the meening of the Constitution a bank whioh la 8
oeunty depository oannot be dlaoharged of lta llablllty  as ous-
todlan of publio fund8 60 long aa the bank hold6 that poaltlon.
            The last above-mentioned       aeotlon of the Constl tu-
tlon was construed In the oase of Orendorff v. State (C.C.A.),
108 8. 1. (26) 206, and It was held that          a parson     who had
been entrusted      with pub110 funds, to-wit,      a aherlff,    was ln-
lllglble   to flll,the    atfloe    of County Com&laaloner 80 long
a6 lm was under the duty of dlacharglng          his llablllty     by
reason   of hle hsving been      the oustodlsn   of such funds.        The
oourt, In pert, said:
            *It (the Constltutlon)        olearly    lnoludee every
      person who may bare been entrusted            with public
      money. It was wlthln the knowledge of the Constl-
      tutlon that    vast    mm16 of money would be entrusted,
      of neoesalty,       to others than    tax oolleotora;      and
      the language used waa broad enough to oover them
      all, State and County        Treaaurera and treesurere         of.
      other political       lubdlvlalona    of the State,      Offloera
      and Departments that reoelve monal In behalf of the
      State and lta politloal         aubdlvlalons,     sherlffa    and
      otherm.n
             It therefore     alearl    apkara    that a oounty depoai-
tory la   inoludad within the language and purpoas of thla
aonatitut3onal     provlalon,     if for no other reaaon than     that
it  ia the Treasurer oftlm          #oh001 fund6 of the oamon aohool
dlatrlota   of the oountr.        It la not to be queatloned.thet
auoh dlatrlcta    are polltloal       aubdlvlslona.
             If it be auggaated that neither          of the quoted          aeo-
tlona af the Constltutlon         are applloable     to the question          under
diaouaalon     for the reanon that the oaahler of a d@po~ltOTy
bank Is not per ate the bank or euoh depooitory, and that,
therefore,     he la under no oonatitutlonal         restraint       so feT
aa hi6 ellglblllty       to be oounty auditor la oonoeraed, we
think a aufflolent       answer to auoh auegeotlon         la thet a bank-
ing oorporatlon      oen only act through Its proper offleers.
A cashier    of a National Bank la the ereoutlve             offloer     of the
bank who transacts        Its dally affalra     and through wham, uaual-
17, all of its flnsnoial         obllgatlona    sr8 conducted.          See
Flrat   National Bank of Oreenvllle          v. Cotton 011 CO., 60             ”
S. H. 828 (C.C.A.))        Hewitt V. Fir& National Bank, 252 S. r.
161 (Co% App.).        .In th? laat oltea oase the bourt             stated,
r’          _. Vlckerson, June 14, 1929, ?aga 4.
     23. A. -


     that the oashlar of a bank &thin the aaope or his     orriolai
     dutlea Is the bank.
                 In the offort to determine whethar or not a
     constltutionnl lfmitatlon or'othar provision la appli-
     oablo to a gltan oasc, ooneld4ratlonmust bs given to the
     rule that the literal words of the Constitution carry with
     thez oartaln raaronable and neoaeaary implications. see
     ?h~!tn~           120 Tex. 383, 40 5. ':r'. (?a) 31, 36; Croat
             V. K%:grrs,
     Southern Llfs Ins. CO. t. City of Auatln, 112 Tax. 1;
     243 s. p:. 770; City 0r Dsnlson v. Eunioipal Gaa co., 257
     6. 77.616 (C-A.), Alfinned by Supre>laCourt, 3 L; ::. (2d)
     794.
               In   the
                     last cited ease the court on rshearing,
     speaki% through Justloa Loonay, says:
               *The doctrine of lm~llcd pov;,ers
                                               and restraints
          is roll known to the law or oonstltutionalconatruo-
          tion. It raeults fron the fact that it is never
          practicable In a Constitution to apaoify in detail
          all its objeots and purposes, m the meana of oarry-
          ing thea into execution; therefore, constitutional
          posrersare granted or prohibited in general terms,
          fro= ?:hich~lmpliedpov;arsand prohibitions necaa-
          aarilr arise.'
               KS think, thererore, that what a bank in its oor-
     porata entity Is rorbiddan under the Constitution to do,
     the cashier of the balutmay not do, unleaa and until he dls-
     associate% himself from his oonnaotion with the bank.
               The statut~rrelatln~to the offi04 of oounty
     auditor are ArtiOlOB 1645 to 166S, inclusire, 8. C. S.,
     lees. Frosn theBe etatutss it appears that the oounty audl-
     tor has general supervision of all books and records of all
     oifloerE'of the county, district and state, who may ba auth-
     orlzad or raqulred to receive or 0ollJot  money, runde,r434
     or ot&r property for the use of or belowI% tt the oounty;
     that he shall eae to the striot enforooumnt of ths laws
     ~ovsmlng  county finances; that ho has oontinual,aooeasto
     and shall exanina all booh, accounts, reports, vouchers
     and other records and all arralrs relating to the finances
     ae the county; and without girlog any pravlous notioo, ha
     shall exazlne fully the condltlon of and ins&mot the oash
     in the hands of iha county traosurer or In the &I& in
     whloh ha my h:,vsplaced same for safekeeping, not leas
     than onoe in each quarter, and he shall see that all bal-
     anoea to the credit of varlous,fundeare actually on hand
     in oash.
      .
, .




          Mr. A. E. Riokaraon,        Juno 14, 1939,       k’age5.


                        Considering     the statutrs,     tharerqre,   ralatl~     to
          the dutiaa of oounty auditor8          and those relating       to the bat148
          and obligations      of the oounty depository,          w4 must, n4oeasarIly,
          oonoluds     that If ths cashier      of a depository      bank were per-
          mitted     6t the aama tIma to fill        the orrlos    or county auditor,
          he would be placed        in the position      of being raqulxsd     to peas
          judgment upon the book%, aooounta and othar derlnsd aota of
          the oounty d%pOBItOry, which are In legal offeot                 his book%,
          aooounta and mote.          It was to prorsnt      just auoh Inorrapatiblo
          situations      that the forogollrg     provision%     ware writton    Into
          tho Constltutlon       of this State.

                         In an opinion    by a rcrmar Attorney         General of this
          State,    which was rendered       on February $27, 1919, It was hald
          that the oashlar        ol a bank, whloh was a depository            of school
          funds,    oould not be appointed         to the OrrlOa Or oounty eohool
          trustee.      In a oonisrenoa      opinion rondsrod        on Soptembor 16,
          1929, It was held by another            roramer Attorney General of thlr
          &ate     that a etockholdsr       or an orrioial       or..a oorporatioa
          ahloh was the depository          for an Independent        school dietriot,
          waa lnaliQ1blo       for appointment       or eleotion     aa truetoe    of
          amid school dl strlot.         Thoss opiniona       wore upon rolated
          subjects     to the ~OXWJ  that we am now called           upon to anewor,
          exoapt that It la believed           that t:‘e instant      ease proaants
          stronger     roesons    r0r arrlring     at the sma conolusloa.
                    It follows   from what bas been aaid that It lr the
          opinion of the Attorney    General that the aashler of,ths  bank
          which Is oounty deposltory    Is InellgIble to be appointed
          oonnty auditor ct the ama county.

                                                           Yours   wiry tzulr
                                                   ATTORNEYGZWRALOFTEXAS


                                                   BY ;%pf*
                                                   First    Assistant*     gorn~~Gonaral




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