Austin v. Fox

NICKELS, J. The opinion of the Court of Civil Appeals is reported at page 341 of 297 S. W. Writ of error was granted, in respect to the question whether the deposits standing in the name of J. J. Fox on the records of the defunct bank were public funds. If they had that character, the security of the guaranty fund, of course, is unavailable. Article 447, R. S. 1925. Some relevant formularies may be stated: (a) A tax collector has no authority to receive anything but cash in payment of taxes. Figures v. State (Tex. Civ. App.) 99 S. W. 412; Ward v. Marion County, 26 Tex. Civ. App. 361, 62 S. W. 557, 63 S. W. 155. (b) Private arrangements for payment (differing from the statutory method), made between the collector and taxpayers, and performance thereof are at the risk of the parties thereto, and not of the state or county. Ibid.; Orange County v. T. & N. O. R. Co., 35 Tex. Civ. App. 361, 80 S. W. 670 (writ refused) ; T. & N. O. R. Co. v. State, 43 Tex. Civ. App. 580, 97 S. W. 142. (c) The state or county may adopt or, through assertion of estoppel, get the benefits of such acts or arrangements (Ibid.; Morris v. State, 47 Tex. 592; Webb . County v. Gonzales, 69 Tex. 456, 6 S. W. 781; Mast v. Nacogdoches County, 71 Tex. 384, 9 S. W. 267), or, in ease of loss, a breach of the bond can be rested thereupon (Ibid.; Wilson v. Wichita County, 67 Tex. 647, 4 S. W. 67). It results that liability of the property owner persists until such acts are done as amount to payment of taxes in the statutory way, or until the state or county, etc., does some act, etc., which amounts to ratification of what had previously been done informally by the owner and collector with consequent release of the tax lien. Fox, tax collector or otherwise, has never received money called for in the receipts issued, but, contrarily, has only received credits indorsed on the bank books. If the matter remained in that condition, the taxpay [602] ers would still be liable because of nonpayment, or tbe state could release them by pursuing Fox and bis sureties, but tbis would require a new eboicé by tbe state, wbicb was never made and wbicb cannot yet be made. Throughout tbe period intervening a date prior to tbe first credit given Fox by tbe bank now defunct and dates (subsequent to tbe last of those credits) of final settlements bad between him and tbe state and county in respect to all taxes then involved, there was on deposit in tbe depository bank funds (to which be was entitled as commissions earned) in excess of tbe aggregate of tbe credits in tbe other bank. In those settlements tbe state and county accepted whatever amount of those funds was appropriate in lieu of moneys due either by Fox, tbe defunct bank, or tbe property owners for taxes supposedly represented by tbe credits now in question. Whatever rights might have accrued to tbe state or county were, under tbe facts, at all times inchoate and dependent upon claim asserted upon happening of contingencies. Tbe contingencies never occurred so as to authorize tbe claim, and the claim was never made, nor, in view of settlements with Fox, may the contingencies yet happen or rightful claim be made. A different ruling would involve complete reversal of tbe policy in respect to receivers of public moneys as established in tbe authorities cited and others and jeopardize tbe public interests in tbe manner therein expressed and implied. We bold, tbe “deposits” are entitled to protection as nonpublic, unsecured, and non-interest-bearing ones, and, accordingly, we recommend affirmance of tbe judgment of tbe Court of Civil Appeals. CURETON, C. J. Judgment of tbe Court of Civil Appeals affirmed, as recommended by tbe Commission of Appeals.