Bank of Commerce v. Clark

Holden, J., delivered the opinion of the court. The appellee, John B. Clark, sheriff - and tax collector of Harrison county, exhibited his bill of complaint in the chancery court of Harrison county alleging that he (John B. Clark), as sheriff and tax collector, deposited in the Bank of Commerce at G-ulfport, Miss., five thousand, five hundred and fifty four dollars and sixty-eight cents, which deposit was in the bank on the 14th day of December, 1916, when J. S. Love, state bank examin'er, took charge of the bank under the banking laws of our state and under a resolution of the board of directors of said bank. The bill alleges that more than sufficient money to pay the account of the complainant is and has been on hand in the bank since the date of its failure; that the' said deposit was without interest, and was simply a deposit of public funds, and is protected as trust funds by section 3485, Code of 1906, which reads as follows: “Public Moneys are Trust Funds. — 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 liable to be taken by the general creditors of the officer or by the creditors of the depository.” The bill of complaint further alleges that the bank was not a public or county depository in tny sense, but that complainant, without any authority of law, by a private arrangement, took a private bond executed by some citi [860] zens of Gulfport, conditioned that the hank would repay said deposit upon demand. The suit, it will be noted, is directly against the appellant Bank of Commerce, the principal on said private bond. The bill seeks to have the deposit declared a preference trust fund of public money under section 3485, Code of 1906. A demurrer filed to the bill was overruled by the court, and this appeal is here for the purpose of settling the principles of the case. The main contention here of the appellants is that section 3485, Code of 1906, is necessarily repealed by chapter 124, Laws of 1914, and act of 1916, and that said provision of the Code of 1906 is no longer in force and effect, because the subject-matter embraced in said section of the Code has been treated of by said two acts of the legislature, and that the provisions of said acts of 1914 and 1916 are not in harmony with section 3485 of the Code, in this, that section 38' of chapter 124 of the Laws of 1914, in treating upon the payment of claims against said bank and as to how they shall be paid, provides as follows: “All deposits not otherwise secured shall be guaranteed by this act, ’ ’ etc. And section 38 was amended by chapter 207, Laws of 1916, so as to read as follows: “All deposits not otherwise secured and all cashier’s checks, certified checks or sight exchange issued by banks operating under this law, shall be guaranteed by this act,” etc. It is urged by the appellant that the language, “not otherwise secured shall be paid out of the guaranty fund of the state,” repeals and annuls the benefit and purpose of section 3485 of the Code of 1906, and that the deposit by the tax collector, in the case before us, is not a preference trust fund; and, also, that it is not a guaranteed deposit under our banking law of 1914, because a private bond, unauthorized by law, was executed by the bank and several private citizens to the tax collector to [861] secure the deposit in the bank, making the deposit “otherwise secured.” It is unnecessary for us to pass upon the latter proposition. The Banking Act of 1914, and the amendment thereto of 1916, were never intended to repeal and destroy the purpose and protection afforded by section 3485 of the Code of 1906, with reference to deposits of public moneys' and making such deposits a trust fund with a preference over certain other claims. . The depository law of our state (Acts of 1908, chapter '96; as amended by Laws 1910, chapter 224), when put in operation as provided therein, supersedes and annuls the security and protection of section 3485, Code of 1906, and to that extent supersedes the said Code section; but the provisions of no other statute affect or repeal section 3485, Code of 1906. United States Fidelity & G. Co. v. First State Bank of Shaw, 103 Miss. 91, 60 So. 47; Powell v. Board of Supervisors, 107 Miss. 410, 65 So. 699, Ann. Cas. 1916B, 1262; Potter v. F. & D. Co., 101 Miss. 823, 58 So. 713. The fact that the tax collector, appellee, accepted a private bond, not authorized by law, to secure the deposit made by him of the public funds in the bank, can in no wise affect the status of the deposit of these public funds as fixed and defined by section 3485, Code of 1906. The public money deposited in the bank by the appellee tax collector is a trust fund under section 3485, Code of 1906, and is a preference claim to be paid out of the assets of the appellant bank. The decree of the chancellor overruling the demurrer is affirmed, the cause remanded, with leave granted to the appellant to answer the hill within thirty days after the filing of the mandate in the lower court. Affirmed and remanded.