    OFFliZE   OF THE   ATTORNEY      GENERAL   OF   TEXAS
                            AUSTIN




                  Ii. 8hoppard
                  FublZc Accounts


Dear &lx'*Shoppardt

                                RS~: MI&hor‘%$  Ilit the &lCCCpt8IlCO
                                     by tihhe--CqwtyTax Collector
     .                               Of 8 hX~+'S‘C@OCk      for t&LX-
                               ,/- ',QS8xvl the depoeit thereof by
                              /          Colleotor &&opting   *om
                                                    bank 8 Cashier~e
                                                    mount consti-
                                                    by the taxpayer


                                       qcoipt of your lottor of




                                         COUXit~ in Janu-




         the bank closed.

              'It appaars that tho Tax Colleotor re-
         ceivod approximately t&x+Nvo    per cent OC
         the value of the CashUr*s  checlt in dividends.

              8x0~ wili please advieo tbia department
         whether tho Tar COllCOtOP or the t&qXayer
         should bo bold liable for tho paymmt of the
         t8xes ."
                                                            418 ,
non. coo. 8. Sheppard - Pago 2




          UnQar the facts etafed by you, it is our
opinion tho Tax Collector and his bondernon should
be held liable and not the taxpayer.

          It is, of course, well settled that fhe
authority of the.Tax Collector in tho matter of col-
looting taxas oxtonds only to collections made in
cash. Austin vs. Fox, 1 S. v. (2) 601; Figures vs.
State, 99 8. w. 412; Ward vs. mrion  county, 62 s. w.
657, 63 s. 0. l55.

          Any payment by check 01. qthorwise than by
the pqynumt of money amounts meroly to an arrangcmnt
for accomdation    to the taxpayer,   or for comonicncc
Saks, and ia smdo at the risk Of ths parties thoroto,
8nd not of the State or county.     Austin vs* FOX, 1
8. 1. (2) 601s Wang3 County VB. T. & N. 0. R. Co., 80
8. 0. 570 (i&t   refused)  T. W N. 0. R. Co. vs. Stat0
97 8. 1. 142.   The question, thoroforo, arises whethe;
or not the transaction du&lled     in your lottor consti-
tuted in legal esscncs 8 payment in cash to tho Tax Col-
lector by tho impayor.

           In Davis vs. State, 51 8. W. (2) 703, a crim-
iMl   C(LS8, it is Said:


            #Wo agree entirely nith the oonton-
      tion of counsel that no Tax Collector has
      any authority to rocaivo in payment and
      discharge thoroof anything but LswfuJ
      money of th3 United States, aiti th8t, if
      he does cccoyt any kind of property other
      than lawful money in payment of taxes,
      suoh aocoptanco by him of such property
      will not operate to discharge or pay such
      taxes - It is doubtless true that a col-
      lector Of taxes nay refuse to accept 8
      check or draft, in payzmt thorsof, and say
      insist upon being paid in actual mney,
       and until such pngnegt is made the tax08
      till not,be dlscharged~ but in this case
      iiin[;,the County Yroasurer, accepted in
       paymnt of thu taxes a check of Rodick
       drawn upon an Omaha bank.   If this check
       had been I\rotosted or never had beon paid
                                                                    419

ilon. limo. JI. Shopparcl - PsgO 3




     of course it would not have operated as 8
     payrront or” the taxosi but the Treasurer
     obtained thO ir.onsyon this ahock from the
     bank on which it was drawn, and the mgmant
     he did so ho hold such nmnzy as Treasurer
     of tbo county, in his official capacity,
     and the taxes to pay which It was given   WWo
     from that monent paid and discharged.*
          The opinion citoe Hubbard vs. Auditor Gen.
(&ich.) 7ti N. VI. 978, and on annotation in 44 A. L. R.
p. 1234.

           In tlio annotation cited Ve find the case of
Wasson vs. Lcurb (InQ.) 22 H. 3. 729, 8 L. R. A. 101.
That was o cascv whore a Courzty Treasurer depositsd in
n bnnlc roooipts for taxes i?uO frcm the bank, receiv-
ing crw   t SW  Chc,amount of sucf, taxes, and sftoruards
Qrtw the money out by c>ock. Xn tha course of the opln-
ion it 309 ssS&~


            ** * **If t&3 custorwr assents to ’
      such action on the gart of the be.nX by
      drawing chooks a&xlnst the croi?it, or
      in sny other way, bo rz.nifests with
      equal olearuoss his intoEM.w    to be
      traatcd  as 8 depositor of mOMy.’     If,
      by cut&al oonsent, the bank and thO ap-
      pellant choose to tr03t the tax reoeipts
      as so much cash doposit@d   to the crsdit
      of 6hs latter, the transaction must be
      rogardod as aocorting to tbs intontlcn
      of the parties at tlzs t&3.

           “The conclusion which follows from
      wlct hrra procoded is t3nt w?xn ths ap-
      pollant transforrod l&3 tax roooipts to
      ths bcnk, and rocoivcd cri?&it fnr thr,
      amount theroof, the tranarctlcn w.+s, in
      la@    Ofr3Ct) the sam as if be had do-
      posited the aniount in ccatl.*

               .
            II" tllz tN.ll4Wii0E      V23    033 bf3tWQOn private
 lndivi~uals,   thO quo&ion        ROUU     bO easy flf solution.

            Berg ~4. Foclcral l7cscqo Bank of Mnnoapolis
                                                                  420
Non. Goo. II. Shopp;rrd - I3go 4




(N. D .) 213 N. IV. 963, holds that if the holdor of a
chook Is rpllling t0 aCOept Mything else, and drawee
bank is willing to &iv0 it, the drawer io not oon-
cermd,   end the chock claybo paid in e medium other
then oash. The drever's contraot is fulflllod rhon
tho check is paid.       '

          So, in Joffcoat vs. Zlckgraff', (S. C.) 140
s. g. 47~) it ~36 hold that e vendor, ah0 aoooptcd 8
oashlar*s cheok folloning the purchaaer@s payment of
draSt to bank, took the risk of tho chock's invalid-
ity. .
          Again, in Ltorris vs. Clove (N. C .) 14g S. E.
253, It vns held that a bolder of 8 check may pFseent
it porsonallg end is ontitlod to cash.   If ho proaonts
it through the Federal Roserve Uank, or tho Express
Coqxmy,  or the postoffico, utier a statuto which nl-
lows pegrmontby check, ho talc06 tho risk that the dreft
issued by the dragon bank will not be 8;oottL. The check
itself Is paid vhcn the dravoo chergos it agtinaf   the
drawer* 8 aooount .

           Litchficld VB . Reid, Sheriff,   (N . C .) 141 8 .E.
 543, a tax case, says!


             l* * at The check vaa issued on Jan-
      uary 3, 1925; It was present&d for pay-
      ment on or boforo January 13, 1926 8 when
      the check was acoeptod for paynrent by the
      drevee bunk it vas ohergod to the eooount
      of the drawor, aml subsequently returned
      to blm stsmped or perforated, 'Paid,
      l&25.        Them is no ovidmoo     tonding
             08 what disposition we8 made by the
      dreweo bank of the amount charged to its
      dopoaitor, the drnwor of the aheok, on
       acoount of tho samno. Upon the facts
       shown by tho ovidmoe,     piaintirf has no
       concern 3s to such ~disposltion. The jury
      dght have found from the evidonae that
       t,ho procoods of the check were peid to
       the holdor cf the cheek, who prsssntod it
       for payment, nnl who had the right, i.f he
       chose to exercise l,t, to demand money for
       said chaok. m * ** -
lion. Geo.Il. sbeppard - Page 8




          Palmer, Ta Collector vs. Siarrlson @a.)
242 8. E. 228, another tax oaee, rtoldsr


            flThe oolloctlng bank was the agent
      of tho tax collectors and, while *taxes
      mast b$ paid in gold or silver, or in
      the bills of euoh banks 08 pay specie
      p~onxptly' (Civil Code 1910, 8 1013), yet
      the effect or the traneaotion in the in-
      stant case was to pay the taxes in law-
      ful money ; and the court did not orr in
      ovorrull~~ the demrrer     to the petition
     'and in granting the Injunction.     Soo Stith
      Roofing Co. v. Utchell,     117 Ge. 772, 45
      S. E. 47, 97 Am. St. Rap. 217; Pollek vb
      llall-Herin CO., 137 Ge. 23, 72 S. SO
      415, 36 L. B. A. (S.S.) 131 Comer v'. DIP
      four, 66 Ga. 378, 22 S. If. 643, 30 L.R.A.
       300, 61 Am. St. hop. 89.'


           Flually it Is said in C. H. hey Corporetion VS.
willi-,    City Treasurer, (Wch.) 238 N. 51. 216:


           *YEhcntble cheek was deposited to the
      credit of the defendant and Charged to-that
      0r tho fuel ;u;d eupply Compaq, the ~mney
      repreeontod by it ves, in legal effect, paid
      to him by the fuel cornpang. The burden of
      shoving that ho was thereafter juettfied in
      repaying it to the bank was llpon him.

           nFi?liletho stntuto (1 Cmnp. Law6 1929,
      1 339) provides that a oheok tendered for
      the payxcont of a tax shall not operate es
      mch, unless 'it shall bo pald on preeonte-
      tam,*  tbie caook see paid when it  was da-
      posited by the treeeuroc  ati credited to
      his account and charged to the account of
      tho fuel aud euyply oom~uy~   there bolng
      then in <hi.3 account a sum sufficient for
      the paymnt thereof. No claim is or could
      be mdc   that the check aam fraudulently ls-
      au&, or that any mistake was nade by an m-
      ploy00 of the bank in the debiting or crodit-
      ing of it..
hon. Gee. h. Sheppard - Page 6




          The rule is, of course, more rigid where a
Tax Collector is invOlvod, nevertheless, wc think the
facts stated by you as surrounding this transaction
show in loge1 essence a pagmont moetine, the require-
ment of cash payment by the taxpayer to the Collector.

          While the Collector did not physically re-
ceive cash, it was his own fault, and ho oonstruotive-
ly rooeivsd it, because he accepted tho bank cashior*s
check in lieu thoroof, cuusing the taxpayer's chock to
be paid an;fher account accordingly charged. The situa-
tion wao precisely as tbough the bank had paid to the
Collector tha cash and the Co&loctor had lmmodiately
purchased the cashier *s check therewith.

          This real nature Of the transaotion has been
rooognlzed by the Collector , for It appears ho filed his
claim as Collootor with the Banking Comnissionor in
charge of tic:failed bank, and has actually received
dividends on his claim to the extent stated by you. Un-
doubtedly, the State's rights in tho nutter of collcot-
in; tax% arz paramount to the taxpayer's right to make
conventional payment through check, but yet the humble
taxpayer has some rights that should be protected, es-
pecially Nhore, as here, the State is secured by the
Tax Collector's bond, the very purpose of which is to
indemnify tbo State against loss for tho Collector*s
failure to account for collections coming Into his
hands.

            The opinion of this department written by
Judge F. 0. hlcIiinsey,of date January 16, 1932, aa-
drossed to you, is clearly distinguishable in this,
there the Collector put the taxpayer's check (drawn
on an out-of-town bank) in his county seat bank for
oollection through the usual banking channels, and
the clrevez bank failed before the Check was cleared.
The Collector, unlike the instant case, never prcsent-
ed the check to tho~drewee bank, and never voluntarily
surrendered it for payment and cancellation, and ncvor
voluntarily accepted a cashier's check cr other medium
rhatsoovcr in lieu    of Cash in ivqvent.

           Yoii aro therefore respectfully a::visc:2that
 in our opinicli the Tax Collector and not the taxpayer
I    ,I

    Ron.   480.   4~. smeppara   * Pqp   T




    muld    be liable,     aa herotofon       &at@.




                                          .
             APPJOVEI3OV 19, 1940


             ATTORNEY GEKZRAS 0' Tx‘;iAs
