OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
June 14, 1939

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

%rlmmrto yo tiontotwu Art Qthe above afat& rsful eonsideretfon, te te be the wrraot

0 shall aeitheP

other things, grwidea that the word et3a 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 Gemat~tntlon,MT. A. E. Hiokereon, June 14, 1939, Fage 2.

the faithful pertonnanos of all duties and obligations UeTOlring by law upon the depository, and **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 aocounted for 

### l

ocordlng to law.' And Artlole 2828 of the Clvll Cods prorldee, in cffoct, thnt abrohdepository 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 custodiana of the ooimty, and hold Its **funds** in place of the Treasurer.- And It m-asheld by the Suprene Court of Alabama: "In ocmmonaooeptenoe of that term, a depository is a oontraotee with ministerial duties, performanoe of xhloh marbe ompelled in proper oases by the 

### writof emndamua.” (Flret Natlonal Bank vs..Terry, **et** al, 83 So. 170.1
Tha &her aeotion of the Constitution which we think is here applloable is provides : Seotlon.20 of ArtiOle 5, whioh

WQ personwho at anr timema7 havebeen a collector 

## 0f taxes, **or** rho may have bean othervise 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 until the seleotlon of a new depository and the giving of the bond bT thelatter, 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, thatMr. 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 oustodlan 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

### l llglble 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 Constltutlon that vast mm16of 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 l

ubdlvlalona 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 depoaitory la inoludad within the language and purpoas of thla aonatitut3onal provlalon, if for no otherreaaon 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 aeotlona 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 atethe **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 banking 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, uaual17, 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’ 23. A. -

_. Vlckerson,June 14, 1929, ?aga4.

that the oashlarof **a** bank &thin the aaope dutlea Isthe bank. or his

## orriolai

In the offort to determinewhethar or not a constltutionnllfmitatlonor'otharprovisionla applioablo to a gltan oasc, ooneld4ratlon**must**bs given to **the** rule that the literalwords of the Constitutioncarrywith thez oartalnraaronableand neoaeaaryimplications. see ?h~!tn~ V. K%:grrs,

120Tex. 383, 40 5. ':r'.(?a) 31, 36; Croat SouthernLlfs Ins.

## CO.t. City of Auatln, 112 Tax. 1; 243 s. p:. 770; City

## 0r Dsnlsonv. EunioipalGaa

## co., 257 6. 77.616 (C-A.),Alfinnedby Supre>la Court, 3 L; ::. (2d) 794.

**In the**  last cited ease the court on rshearing, speaki% throughJustloaLoonay,says:

*The doctrineof lm~llcdpov;,ers and restraints isroll known to the law or oonstltutionalconatruotion. It raeultsfron the fact that it is never practicableIn a Constitutionto apaoifyin detail all its objeotsand purposes,m themeana of oarrying thea into execution;therefore,constitutional posrers are granted or prohibitedin general terms, fro= ?:hich

~lmplied

pov;ars and prohibitionsnecaaaarilrarise.'
KS think, thererore, thatwhat a bank in itsoorporataentity Is rorbiddanunder theConstitutionto do, the cashierof thebalut may not do, unleaa anduntil he dlsassociate%himselffrom

## his oonnaotionwith thebank.

The statut~rrelatln~to the offi04of oounty auditor are ArtiOlOB 1645 to 166S, inclusire,8. C. S., lees. **Frosn**theBe **etatutss it**  **appears** that the oounty audltor has generalsupervisionof all booksand records of all oifloerE'ofthe county,districtand state,who may ba authorlzad or raqulredto receive

## or 0ollJot money,

## runde,r434 or ot&r propertyfor the useof or belowI% tt the oounty; that he shall eaeto the striot enforooumntof ths laws ~ovsmlng countyfinances;thatho has oontinual,aooeas to and shallexaninaall **booh,** accounts,reports,vouchers and otherrecordsand all arralrsrelatingto **the** finances ae the county;andwithout girlogany pravlous notioo,ha shall exazlnefully the condltlonof and ins&motthe oash in the handsof iha countytraosureror In the&I& in whloh hamy h:,vs placed samefor safekeeping,not leas than onoe in each quarter,and he shall see that all balanoea to the credit of varlous,fundeare actuallyon hand in oash..

, .

Mr. A. E. Riokaraon, Juno 14, 1939, k’age 5.

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 permitted 6t the aama tIma to fill the orrlos or county auditor, he would be placed in the position of being raqulxsd to peas judgmentupon the book%, aooounta and othar derlnsd aota of the oounty d%pOBItOry, which are In legal offeot his book%, aooountaand 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 AttorneyGeneral 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

‘I