**OFFliZE** OF **THE ATTORNEY**  **GENERAL OF**  **TEXAS**
**AUSTIN**

Ii.8hoppard FublZc Accounts

Dear &lx'*

Shoppardt

. RS~: MI&hor‘%$ Ilitthe &lCCCpt8IlCO by tihhe--Cqwty



### TaxCollector Of 8 hX~+'S‘C@OCk for t&LX- ,/- ',QS8xvlthe depoeit thereof by / Colleotor &&opting *om bank 8 Cashier~e mount constiby the taxpayer

qcoipt ofyour lottor of

COUXit~in Januthe bank closed.

'It appaars that tho Tax Colleotor receivod approximately t&x+Nvo per cent OC the value of the CashUr*s checltin dividends.

**8x0~** wili please advieo tbia department whether tho Tar COllCOtOP 

### or thet&qXayer should bo bold liable for tho 

### paymmt of the t8xes."

# 418 ,

non. coo. 8. Sheppard - Pago 2

UnQar the facts etafed by you, it is our opinion tho **Tax** Collector and his bondernonshould be held liable and not the taxpayer.

It is, of course, well settled that fhe authority of the.Tax Collector in tho matter of collooting taxas oxtonds only to collections made in cash. Austin vs. Fox, 1 S. v. (2) 601; Figures vs. State, 99 8. w. 412; Ward vs. mrion county, 62 s.w. 657, 63 s. 0. l55.

Any payment by check 01.qthorwise thanby **the** pqynumt of money amounts meroly to an arrangcmnt for accomdation to the **taxpayer,** or for comonicncc Saks, and **ia** smdo at the risk Of ths parties thoroto, 8nd not of the State or county. Austin vs* FOX, 1 8. 1. (2) 601s Wang3 

### County VB. T. 

### &N. 0. R. Co., 80 8. 0. 570 

### (i&t refused) T. W N. 0.R. Co.vs. Stat0 **97 8.**  **1. 142.**  The question, thoroforo, arises whethe;
or not the transaction du&lled in your lottor constituted in legal esscncs 8 payment in cash to tho Tax Collector by tho impayor.

In Davis vs. State, 51 8.W. (2)703, a crimiMl C(LS8,it is Said:

#Wo agree entirely nith the oontontion of counsel that no **Tax** Collector has any authority to rocaivo in payment and discharge thoroof anything but LswfuJ money of th3 United States, aitith8t, if he does cccoyt any kind of property other than lawful money in payment of taxes, suoh aocoptanco by him of such property will not operate todischarge or pay such taxes- It is doubtless **true** that a collector Of taxes nay refuse to accept 8 check ordraft,in payzmt thorsof, and say insist upon being paid in actual mney, and until such pngnegt is made the tax08 till not,be dlscharged~ but in this case iiin[;, the County Yroasurer, accepted in paymnt of thu taxes a check of Rodick drawn upon an Omaha bank. If this check had been I\rotostedor never had beon **paid**ilon.limo.JI .Shopparcl- PsgO 3

of course itwould not have operated as 8 payrrontor”the taxosi but the Treasurer obtained thO ir.onsy on this ahock from the bank onwhich it was drawn, and the mgmant he did soho hold such nmnzy as Treasurer of tbo county, **in** his official capacity, and the taxes to pay which It was given WWo 

### from that monent paid and discharged.*

The opinion citoe Hubbard vs. Auditor 

### Gen. (&ich.) 7tiN. VI.978, and on annotation in 44 A. L. R. p. 1234.

In tlio**annotation** cited Ve find the case of Wasson vs. Lcurb(InQ.) 22 H. 3. 729, 8 L. R.A. 101. That was o cascvwhore a CourztyTreasurer depositsd in
**n bnnlc** roooipts for taxes i?uOfrcm thebank, receiving crw tSW Chc,amount of sucf,taxes, and sftoruards Qrtw the money outby c>ock. Xn tha course of the oplnion it 309 ssS&~

** * **If t&3 custorwr assents to ’ such action on the gart of thebe.nXby drawing chooks a&xlnst the croi?it,or in sny other way, bo rz.nifestswith equal olearuoss his 

### intoEM.w to be traatcd as 8 depositor ofmOMy.’ If, by cut&al oonsent, thebank and thO appellant choose to tr03t the tax reoeipts
as somuch cash **doposit@d** to the crsdit of 6hs latter, the transaction must be rogardod as aocorting to tbs intontlcn of the parties at tlzst&3.

“The conclusion which follows from wlct hrra procoded is t3nt w?xn ths 

### appollant transforrod l&3 taxroooipts to ths bcnk, and rocoivcd cri?&itfnr thr, amount theroof, the tranarctlcn w.+s,in la@ Ofr3Ct) the sam as if be had doposited the aniountin ccatl.*

. II" tllz tN.ll4Wii0E V23 033 bf3tWQOn private lndivi~uals, thO quo&ion ROUU bO easy flfsolution.

Berg ~4. Foclcrall7cscqo Bank ofMnnoapolis 

# 419

# 420

Non. Goo. II.Shopp;rrd- I3go 4

(N.D.)213 N. IV.963, holds that if the holdor of a chook Is rplllingt0aCOept Mything else, and drawee bank is willing to &iv0 it, the drawer io not ooncermd, end the chock claybo paid in emedium other then oash. The drever's contraot is fulflllod rhon tho check is paid. '

So, in Joffcoat vs. Zlckgraff', (S.C.) 140
s. g. 47~) **it ~36**  hold that evendor, ah0 aoooptcd 8 oashlar*s cheok folloning the purchaaer@s payment of draSt to bank, took the risk of tho chock's invalidity.
. Again, in Ltorrisvs. Clove (N. C.)14g S. E. **253, It**  **vns** held **that** abolder of 8 check may pFseent it porsonallg end is ontitlod to cash. If ho proaonts it through the Federal Roserve Uank, or tho Express Coqxmy, or the postoffico, utier a statuto which nllows 

### pegrmont

by check, ho talc06tho risk that thedreft issued by the 

### dragonbank will not **be 8;oottL.**  **The** check itself Is paid vhcn the dravoo chergos it **agtinaf the**  **drawer*** **8 aooount** 

**.**

Litchficld VB .Reid, Sheriff, (N.C.)141 8.E. 543, a tax case, says!

l* * atThe check vaa issued on January 3, 1925; It was present&d for paymenton orboforo January 13, 19268when the check was acoeptod for paynrentby the drevee bunk it vas ohergod to the eooount of the drawor, aml subsequently returned to blm stsmped or perforated, 'Paid, l&25. Them is no **ovidmoo** tonding 08what disposition we8 made by the dreweo bank of the amount charged to its dopoaitor, the drnwor of the aheok, on acoount of tho samno.Upon the facts shown by tho ovidmoe, piaintirf 

### has no 

### concern 3s **to such**  ~disposltion. The jury dght have found from the **evidonae** that t,hoprocoods of the check were peid to the holdor cf the cheek, who prsssntod it for payment, nnl who had the right, i.fhe chose to exercise l,t,todemand money for said chaok. m * ** -

### lion.Geo.Il. sbeppard- Page8

Palmer, Ta Collector vs. Siarrlson@a.) 242 8. E. 228, another tax oaee, rtoldsr

flTheoolloctlng bank was the agent of tho tax collectors and, while *taxes mast b$ paid in gold or silver, or in the bills of euohbanks 08 pay specie p~onxptly'(Civil Code 1910, 8 1013), yet the effect or the traneaotion in the instant case was to pay the taxes in lawful money;and **the court**  did not orr in ovorrull~~ thedemrrer to the petition 'and in granting the Injunction. Soo Stith Roofing Co.v. Utchell, 117 Ge. 772, 45 S. E. 47, 97 Am. St. Rap. 217; Pollek vb llall-Herin CO., 137 Ge. 23, 72 S. SO 415, 36 L. B. A. (S.S.) 131 Comer v'.DIP four, 66 Ga. 378, 22 S. If.643, 30 L.R.A. 300, 61Am. St. hop. 89.'

Flually it Is 

### saidin C. H. hey Corporetion VS. willi-, City Treasurer, (Wch.) 238 N. 51.216:



### *YEhcn tble cheek was deposited to the credit of the defendant and Charged to-that 

### 0r tho fuel ;u;deupply Compaq, the ~mney repreeontod by it ves, in legal effect, paid to him by the fuel cornpang. The burden of shoving that ho was thereafter juettfied in repaying it to the

### bank was

### llponhim.

nFi?lile

tho stntuto (1Cmnp. Law6 1929, 

### 1 339)providesthat a oheoktenderedfor the payxcontof a tax shall not operate es mch, unless 'it shall bo pald on 

### preeontetam,* tbie caook see paid when it 

### was daposited by the

### treeeuroc ati credited to his account and charged to 

### the accountof tho fuel aud euyply oom~uy~ there bolng then in <hi.3account a sum sufficient for the 

### paymnt thereof. 

### No claim is or could **be** mdc that the check aam fraudulently lsau&, or that any mistake was nade by an mploy00 of thebank in the debiting or croditing of it..hon. Gee. h. Sheppard - Page 6

The rule is, of course, more rigid where a Tax Collector is invOlvod, nevertheless, wc think the facts stated by you as surrounding this transaction show in loge1 essence a pagmont moetine,the requirement of cash payment by the taxpayer to the Collector.

While the Collector did not physically receive cash, it was his own fault, and ho oonstruotively rooeivsd it,because he accepted thobank cashior*s check in lieu thoroof, cuusing the taxpayer's chock to be paid an;fher account accordingly charged. The situation wao precisely as tbough thebank had paid to the Collector tha cash and the Co&loctor had lmmodiately purchased the

### cashier *s check therewith.

This real nature Of the transaotion has been rooognlzed by the Collector ,for It appears ho filed his claim as Collootor with the Banking Comnissionor in charge of tic:failed bank, and has actually received dividends onhis claim to the extent stated by you. Undoubtedly, the State's rights in tho nutter of collcotin; tax% arz paramount to the taxpayer's right tomake conventional payment through check, but yet the humble taxpayer has some rights that should be protected, especially Nhore, ashere, the State is secured by the Tax Collector's bond, thevery purpose ofwhich is to indemnify tbo State against loss

### for tho Collector*s failure to account for collections coming Into his hands.

The opinion of this department written by Judge F. 0.hlcIiinsey, ofdate January 16, 1932, 

### aadrossed toyou, is clearly distinguishable in this, there the Collector put the taxpayer's check (drawn
on an out-of-town bank) in his county seatbank for oollection through the usual banking channels, and the clrevez bank failed before the Check was cleared. The Collector, unlike the instant case, never prcsented the check to tho~drewee bank, and never voluntarily surrendered it for payment and cancellation, and ncvor voluntarily accepted a cashier's check cr other medium rhatsoovcr 

### in lieu of Cash in ivqvent.

Yoiiaro therefore respectfully a::visc:2 that in our opiniclithe Tax Collector and not the taxpayerI ,I

Ron. 480. 4~. smeppara * Pqp T

**muld be**  liable, **aa**

### herotofon &at@.

. 

### APPJOVEI3OV 19,1940

ATTORNEYGEKZRAS0'Tx‘;iAs