United States Fidelity & Guaranty Co. v. First State Bank

Cook, J., delivered the opinion of the court. The bill of complaint does not alledge that the treasurer paid the money advanced by the guaranty company to his successor in office, or that the funds so advanced ever reached the drainage commission. It is unnecessary to construe section 3485 of the Code of 1906. The'demurrer admits only what the bill of complaint alleges. The Fogg case, 80 Miss. 750, 32 South. 285, and other cases decided by this court construing'section 3485, have no application, as it was affirmatively shown in all those cases that the party seeking subrogation to the rights and remedies of the state and county had [106] paid the money to the county or state. We have no ease here which would justify us in deciding whether the funds here involved were such public funds as are provided for bjr section 3485. Affirmed. ON SUGGESTION OP ERROR. At a former day of this term, we decided that the bill of complaint in this case did not make such case as would authorize us to construe section 3485, Code 1906. A careful re-examination of the bill of complaint leads us to the conclusion that we were probably wrong in the former opinion. This statement is made in response to the suggestion or error filed herein, and we now address ourselves to a consideration of. the meaning of section 3485, which reads as follows: “All money deposited in bank, or with any other depository, by or for a tax collector, or other officer having the custody of public funds, state, county, municipal, or levee board, whether the same be deposited in the name of the officer as an individual or as an officer, or in the name of any other person, is prima facie public money and a trust fund, and is not hable to be taken by the general creditors of the depository. ” The board of drainage commissioners was organized under the statutes of this state, and John L. Gill, the treasurer of Bolivar county, was made by law ex officio treasurer of the drainage commission. Certain funds belonging to the drainage district were deposited by the said treasurer in the Bank of Shaw, and the United States Fidelity & Guaranty Company, appellant, gave to the treasurer its indemnifying bond, which provided that in default of the Bank of Shaw paying to the treasurer upon demand, the funds so deposited in the bank, the guaranty company would take the place of the bank and pay over the funds to the treasurer. The Bank of Shaw became insolvent, and W. G. Hardee was appointed [107] receiver. The guaranty company paid to Mr.. Gill, the treasurer, the amount which he had on deposit in the insolvent bank, and now asks to be subrogated to the rights of the drainage commission, and claims that the funds involved in this controversy were such public funds as are provided for by section 3485 of the Code. This is the precise question involved here. It will be observed that the statute names certain character, or class, of public funds which, when deposited in any bank, become trust funds, and are not liable to be taken by the general creditors of the bank. The statute mentions, as such public funds, state, county, municipal, or levee board funds, and it is the contention of the appellant here that, the drainage commission being a municipal corporation, the funds of that corporation are entitled to the preference provided for the public funds mentioned by section 3485. The word “municipal, ” in its broadest sense, means public in contradistinction to private, and, as this is a public municipal corporation, it is claimed that its funds are covered by that designation. This statute is in derogation of the common law and gives to the public extraordinary privileges at the. expense of the citizens of the> state, and other persons, who may be creditors of the depositories of public money, and should therefore be strictly construed. We are of the opinion that the legislature, in the use of the word “municipal,” intended only to embrace that character of municipal corporations as are represented by cities, towns, and villages, because it must be confessed that the county and levee boards are also municipal corporations in the broader sense of the term, and it was therefore unnecessary to mention either county or levee board in this act, if the legislature intended the word “municipal” to be interpreted in its most-comprehensive sense. It seems clear to us that the legislature did not intend to include within the meaning of this section any public [108] funds, except the funds of the state, the county, the .city or town, and the levee board; and for this reason the judgment heretofore entered affirming the ease and dismissing the bill of complaint will stand.