The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1895-12-16
CARE OF COUNTY MONEY.
Opinion Upon Which the Bank Com
missioners Acted.
Acknowledgement Fitzgerald 1olds
That County Money Cannot be
Loaned or Used by Bankers,

The order of the Bank Commission
ers, which appears in another column,
that county funds deposited in banks
cannot be used, but must be left as a
special deposit until demanded, by the
proper authorities, was based on the
following opinion of Attorney General
w. F. Fitzgerald:
! Emmett Seawell, Esq, District At
| torney of Sonoma County, Santa Rosa,
Cal-Dear Sir: / am in receipt of your
favor of the It'll inst, in which you
state that The present Treasurer, fol-
! lowing the precedent set by his pre-
! decessors, makes deposits of money
with banks, taking a certificate of de-
poSit therefor, with the words Special
deposit of public funds written across
the face; that lin order to make the
! Urea Surers and Auditors accounts
balance, it is necessary to treat the GER
tificateS OF deposit as money in max
| ing up the monthly statement of the
| Chairman of the Board of Supervisors,
] District Attorney and Auditor, as re-
| quired by Section Il9 of the County
Government Act of 1898; and that the
amount so represented by certificates
and treated as money, together with
the money actually in the vaults,
makes up the sum total of money IN
the hands of the Treasurer | am
also in receipt of a copy of one of the
certificates of deposit referred to by
you, which, in addition to the indorse-
ment mentioned, reads as follows;
'S244 90. Santa Rosa National Bank.
Santa Rosa, Cal, May 3. 1893. No.
9,244
e F. Woodward, County Treasurer,
has depesited Two Hundred Forty
| four Dollars, payable on presentation
400 70 10 II &c
subject to check. f. a. BRUSH,
Cashier"
| In reply to your question whether or
not the deposits represented by such
certificates are special deposits, :"
within the meaning and spirit of Sec
| ton 81 OF the County Government Act
of 1893. I am of the opinion that the
special deposit permitted by SAID sec
ton is deposit of specific money (goId,
! silver or currency for safe-keeplnS
only, and is not such a deposit as that
made by your Treasurer. Section 81 of
the County Government Act provides
that:
1.-The County Treasurer must keep all
moneys belonging to the State, or to
any county of this State, in his own
possession until disbursed according to
law He must not place the same IN
| the possession of any person, 10 De
|
! he loan or in any manner use, or per-
nit any person to use the same. except
| as provided by law; but nothing IN
this section prohibits him from making
ST ecial deposits for the safe keeping
of the public moneys, but he shall be
liable therefor on his official bond
| Bowler in his Law Dictionary defines
special deposit as "a deposit made OF
| a particular thing with a depositary;
| - oh
deposit" And he says: when thing
has been specially deposited with de-
| positary, the title to it remains with
| the depositor, and if it should be lost
| the loss will fall upon him. When, on
| the contrary, the deposit is irregular, as
where money is deposited in bank,
| if it be lost the loss will be borne by
the bank. This will result from the same
| principle. The loss will fall in both
| Instances on the owner of the thing.
! This distinction between a special and
general or irregular deposit is univer-
sally recognized both by the courts and
| by business men. On the other hand, a
certificate of deposit is a negotiable
! instrument (Section 3093, Civil Code)
and is in effect and in substance, a
| promissory note. The courts of this
State have so held a number of times.
| (See note to Section 1862 Civil Code)
! The Endorsement, Special Deposit of
Public Funds" across the face of the
certificate issued to your County Treas
urer does not alter the character of the
| deposits which they represent.
| In making these deposits the Treas
urer parts both with specific money
| itself and with the title to it. Both
money and title pass to the bank. and
the bank promises to repay 'to the
order of the Treasurer the respective
amounts of money specified in the GER
| tificates. 1t does not undertake to re-
turn the identical money or thing de-
| posted. This is clearly in violation of
Section 81 of the County Government
Act, above quoted, and the certificate
OF deposit so taken cannot be consid-
cred as money in the hands of the
Treasurer. Respectfully,
W. f. FITZGERALD,
Acknowledgement