Covington County v. O'Neal

On Rehearing.

BROWN, Justice.

There is no special magic or charm in the term “county treasurer.” It was at one time a county office — a creature of the Legislature — in counties having a population of not more than fifty-five thousand, but that office has been abolished in such counties, and in lieu thereof the Legislature has conferred on the county boards authority to contract with banks as custodians of county funds. Such banks, when so contracted with, are not officers but a “contractual agency.”

In Compton v. Marengo County Bank, 203 Ala. 129, 130 , 82 So. 159, 160 , it was observed: “Furthermore the act itself in the counties within its contemplation (State ex rel. v. Bugg, 196 Ala. 460 , 71 So. 699 ), expressly abolished the office of county treasurer on the ‘first Monday after the second Tuesday in January, 1917.’ The clear purpose was to abolish the office of county treasurer, and to create a mere contractual agency to perform functions theretofore performed by the abolished officer. It is not conceivable that the Legislature intended to abolish the office of county treasurer and by the same enactment reincarnate the extinct office by another name. The object was more rational than such a conclusion would attribute to the lawmakers.”

It cannot be doubted that by the very terms of the original act, now § 318 of the Code of 1923, such contractual agencies, “The bank or banks so designated as depositories for county funds shall be charged with all the duties and subject to the same liabilities insofar as the

safekeeping and paying out

of the funds of the several counties are concerned, as are now imposed by law upon county treasurers.” [Italics supplied.]

It was within legislative competence to so provide. As we have repeatedly held such matters of policy, as to counties and county funds and how they shall be handled and preserved, are matters of legislative policy. Johnson et al. v. Robinson et al., 238 Ala. 568 , 192 So. 412 ; Morgan County et al. v. Edmonson, 238 Ala. 522 , 192 So. 274 ; State ex rel. Day et al. v. Bowles et al., 217 Ala. 458 , 116 So. 662 .

The Legislature did not stop with conferring power on the county board to procure a bank or banks as “contractual agencies” but empowered the county board to select “an emergency individual” under § 322 of the Code to “act as treasurer,” and to

“fix the terms and conditions”

on which he would be selected. Jenkins v. State ex rel. Watson, 219 Ala. 554 , 123 So. 31 . Opinion on rehearing 219 Ala. page 556, 123 So. page 32. [Italics supplied.]

And by Section 6 of said act of 1915, now § 323 of the Code, the Legislature- itself fixed the duties of such “emergency individual” limiting his duties to receiving and paying out the county funds, and imposing all other duties in respect thereto under such emergency'appointment on “the president of the board of revenue or court of county commissioners.”

This, under the authorities cited, was also within legislative competence and policy not controllable by judicial interference.

The suggestion by appellant that “It is obvious that the headliner thought that this Section [323] applied only when there was no depository or emergency treasurer.” There were no headlines -in the original act the pertinent section of which was brought forward in the Code as § 323.

Moreover, in counties falling within the influence of Article II, Chapter 17 of the Code, there is no such office as county treasurer, and the statute divides the duties and powers in respect to county funds —in the absence of a “contractual agency,” between the emergency individual acting, and the head of the county board, and the duty of safekeeping was placed on the county board or its president, and if the money was lost through his negligence it would be morally and legally wrong to

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make the “emergency individual’s” bondsmen liable for the county’s own negligence.

Opinion extended. Application for rehearing overruled.

ANDERSON, C. J., and GARDNER, THOMAS, and FOSTER, JJ., concur.

BOULDIN and KNIGHT, JJ., dissent.