OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

June 14, 1939 

sbr. A. 5. Bickerson 

County Auditor 

~~ontgomary County 

Conroe, Texa.a 

Dear Mr. Hiolcer8oll: 

%rlmmr to yo 

tiontotwu Art 

Q the above afat& 

rsful eonsideretfon, 

te te be the wrraot 

0 shall aeitheP 

other things, grwidea that the word 

et3 a 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 abroh depository 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-as held by the Suprene Court of Alabama: 

"In ocmmon aooeptenoe of that term, a depository 

is a oontraotee with ministerial duties, performanoe 

of xhloh mar be ompelled in proper oases by the 

writ of 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 person who at anr time ma7 have been 

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 the latter, 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, that 
Mr. 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 tutlon 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 lnl 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 mm16 of 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 other reaaon 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 ate the 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, ?aga 4. 

that the oashlar of a bank &thin the aaope 

dutlea Is the bank. 

or his orriolai 

In the offort to determine whethar or not a 

constltutionnl lfmitatlon or'othar provision la applioablo to a gltan oasc, ooneld4ratlon must bs given to the 

rule that the literal words of the Constitution carry with 

thez oartaln raaronable and neoaeaary implications. see 

?h~!tn~ V. K%:grrs, 120 Tex. 383, 40 5. ':r'. (?a) 31, 36; Croat 

Southern Llfs Ins. CO. t. City of Auatln, 112 Tax. 1; 

243 s. p:. 770; City 0r Dsnlson v. Eunioipal Gaa co., 257 

6. 77. 616 (C-A.), Alfinned by Supre>la Court, 3 L; ::. (2d) 

794. 

In the last cited ease the court on rshearing, 

speaki% through Justloa Loonay, says: 

*The doctrine of lm~llcd pov;,ers and restraints 

is roll known to the law or oonstltutional conatruoti on. It raeults fron the fact that it is never 

practicable In a Constitution to apaoify in detail 

all its objeots and purposes, m the meana of oarrying thea into execution; therefore, constitutional 

posrers are granted or prohibited in general terms, 

fro= ?:hich ~lmplied pov;ars and prohibitions necaaaarilr arise.' 

KS think, thererore, that what a bank in its oorporata entity Is rorbiddan under the Constitution to do, 

the cashier of the balut may not do, unleaa and until he dlsassociate% himself from his oonnaotion with the bank. 

The statut~rrelatln~ to the offi04 of oounty 

auditor are ArtiOlOB 1645 to 166S, inclusire, 8. C. S., 

lees. Frosn theBe etatutss it appears that the oounty audltor has general supervision of all books and records of all 

oifloerE'of the county, district and state, who may ba authorlzad or raqulred to receive or 0ollJot money, runde,r434 

or ot&r property for the use of or belowI% tt the oounty; 

that he shall eae to the striot enforooumnt of ths laws 

~ovsmlng county finances; that ho has oontinual,aooeas to 

and shall exanina all booh, accounts, reports, vouchers 

and other records and all arralrs relating to the finances 

ae the county; and without girlog any pravlous notioo, ha 

shall exazlne fully the condltlon of and ins&mot the oash 

in the hands of iha county traosurer or In the &I& in 

whloh ha my h:,vs placed same for safekeeping, not leas 

than onoe in each quarter, and he shall see that all balanoea to the credit of varlous,funde are actually on 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 

judgment upon the book%, aooounta and othar derlnsd aota of 

the oounty d%pOBItOry, which are In legal offeot his book%, 

aooounta and 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 Attorney General 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 

ATTORNEYGZWRAL OFTEXAS 

BY ;%pf* 

First Assistant* gorn~~Gonaral 

‘I