Opinion letter to the Honorable Charles G. Hyler

Opinion No . 363 - 1962, 32 - 1963 Answered by Letter (O ' Malley) FI LED 3~ January 16, 1963 Honor able Char les 0 . Hyler Prosecuting Attorney St. Francois Count y Farmington, M1aaour1 Dear Mr . Hyder : Thie office 1& in receipt of your letter of January 12, 1963 with reference t o t be requeat of your predecessor in office , Mr. Raymond A. Roberta, for an offici al opinion t ouch- ing t he authority of the count y collector of St. Francois Count1 to eap1oy oerta1n collecti on procedures. t.fr. Roberta• request ia here quoted: "It is our understanding that several coun- ties i n Missouri have arrange .. nta whereby countr real estate and personal property taxea My be pa14 by the taxpayer s at local banks within the county, and the County Collector subsequently ..tla a recei pt f or the payment of auch taxes. "our County Collector i a ~oua t o aet up auch a procedure 1n St . Francois County ao that he aay utilize a bank in Bonne Terre in the north end or the County, i n Flat River i n the central part of the county, i n Bis- mar ck and Leadwood 1n the weat end or t he county, aa well aa the Collector •a offi ce i n the aout h end of the county, f or the conveni - ence of the taxpayer s . "Our question 1a, one, my the County Collector utilize banks aa colleotion points for county taxes. Two, iC so; A. What sort or depoai tory agreement should be &ntered with the bank •~ util- ized. B. What aort of pledge cf aecuri ty ehould be g1 ven by the bank. C. What method or receipting payment of taxea should filed." In your letter of January 12, 1963, you a~ated that the question peae4 by Mr. Roberts was or continuing intel'eat to you, but you have not indicated. as requested of you by phone a few daye aso, whether the ccunty court or St. F~neoia County has entered an order or recorcS requiring the county collector to make daily deposita in depoattariea ••lecte4 by the county court aa authorized by paragraph 2 Of seotion 52.020 RSMo Cull. Supp. 1961. This could be an important factor in 4eteradn1ng whether the desired coliect1on procedures may be eaaployed. Furthermore, Mr. Roberta• inquiry <loee not aak this office to construe any particular statute 1n orcler to •as- ure the powera oi' the county collector in relation thereto. In view of such facta this letter of advice ie submitted 1n lieu or a formal opinion reque~ted by you and Mr. Roberta. we firat direct attention to that portion or Section 52.020 RSMo Cum. Supp. 1961, diacloaing how the county collector's official bond ie to be con41tioned, such statute providing, in part, as follows: ''The bon4 shall be condi tiened that he will fa1tht~lly and punctually col- lect and pay over all state, eGunty ancl other revenue for the four yeare consti- tuting h1s term of office, and that he will 1n all th1nga faithfully perform all the duties of the office or collector according to law. " Paragraphs 2 and 3, Section 52.020 RSMo Cum. Supp. 1961, provide as follows: .. 2. In all third and fourth elass coun- ties the county cotn."t may ·requ,1re the county colleetor to deposit daily all collection• of money in the depositari es selected by the county court in accordance with the provisions of sections 110.130 -3- to 110.150 RSMo, to the credit or a ~und to be known aa •county Collector Fund'. The depoaitar1ea are bound to account for the 110neya in the county collector·• a f'und in the ••• aanner as the public f unde of ever, kind and deso~ipt1on going into the banda or the county treaaurer and shall provide security f or the depoa~ts in the manner required bJ section 1~0.010, RSMO. I f claily deposits are required to be ude, the county eourta may alao require that the bond of the county collector shall be in the an111 equal to one-fourth ot· the largeat a.ount collected during any one month ot the year 1aaed1ately preceding hi a election or appe1nt•nt, plus t~n per cent of the a.ount. No county collector shall be required to .aka daily deposita f or daya when hia collections do not total at leaat one hundred dollars. "3. The collector ahall not check on the county collector•a fund except f or the pur - pose of .aking the monthly 41atr1but1on of taxeaand licenses collected f or di stribu- tion aa provided bJ law or t or balancing accounts among 41tferent depo·aitaries." If the county court of St. Francois County has made an order requiring the county col~ector to make dai~J deposits as author- ized by paragraphs 2 and 3 of section 52.020 RSMO Cum. Supp. 1961# cited above, it is obvious that such county collector Ill¥ not utilize banks of his own choice throughout st. Francois County 1n which to p1ace collections ·.ada by ~. If no such order has been •de by the county coul't 1t would seem that the county collector would be o~ed with a prim&rf duty as set forth in the following language fPOm Section 139. 210 RSMo 1959, "1. Bve17 county collector and ex officio county collector, except in the c1t7 o~ St. Louis, shall, on or before the fifth day or each month, f ile with the county clerk a detailed statement, verified by affidavit of all state, count,, school# road and municipal taxea and o!' all licenses by him collected during the preceding month, and shall, on or before the fifteenth dar ot the 110nth, pa, the same, leas his co111Dis- s1on, into the count( treaaur1ea and to the di~otor of revenue. ' -4- trnt11 aueh time as the county colleeto~ turns over his collections as may be d1Ji'ected una.~ Section 52. 020 RSMo eum. SUpp. 1961, or as directed by Seot1on 139. 210 RSMo 1959, both statutes cited above. be will hold auoh col1ect~ons as an insurer under the rule as stated 1n C1ty of Payette v. Silvey, 290 s.w. 1019, l .c. 102ls "The general rule. which ia th.e rt.~le in thie state. is that one of the dut1$s or a pub11·c officer i ntrusted t-r1th pub11o 110ney 1s to keep euch tunds safely,. and that duty must be perrorme4 at the peril ~ f' such officer. Thus, tn ef fec·t . he is an insurer of iub11c fUnds lawfully 1n his possession. A careful search ha8 been made of Chapter 52 and 139 RSMo 1959, as amended, and nowhere have we round any authOl'ity vested in the county collector to select <1epos1tanes in W'h1<th he ID$f place ld.s COllections pri.OJ:l to the t111e he make~ his settlements and tums over such funds as requit-ed by Se-ction 139. 210 RSJb 1959, and thereby :relieve himself a.a an insurer o£ said funds. l f the county collector de,s1Ns to meet tax• pqers at various points 1n the county and o.oll•ct their taxes as authorized by Section 139. 010 RSJt> 1959 h1$ authoi'ity to render such service is s.pell.U ~ut in ~hat statute. And unless the county court requires the oounty collector vo make dally deRosits of hJ.s oolleet1ons undev section 52.020 RSMo cum. Supp. 1961, o1ted esupn, we t 1nd no statute r-e·qutrtng 1Jhat he deposit hie collections 1n 8Jl.V speo1f1¢ place of sa:te•koepi.ns pen4i.ng his turnover of 1me same eaeh month as required by Section 139.210 RSftl 1959. t1nt1l such tJ.me u you can point to specific statutox,r authorization allowing the countv collector of St. Pranco1s Count11 to utilize various banks :l:n the county as collection points for countr taxes and cause eucn bank$ to ent~r into depositarv agreements tl1th the coll•otor, we must sav that such authOrity does not eXist under the following lang\.lage from I.ama11 Township v. Citv of' Lamarj 169 s . w. l!, 261 ltb. 111, l .c. 189s "ort'1ee:rs are creatures or the law, tfhose dut1e~ ·~ usuall~ f ullJ provided t or by statute. ln a W3f they are agents1 but they are never general agen):a, in the sense that -5- they are ~red by neither custom nor law and 1n the sense that they are absolutely free to follow their own volition. Persons deal.ing w1 th them CJo so alw&~s W1 th f'ull knowledge or the 11m1 tat ions or their agenoy and of the laws which, prescribing their duties, be4ge them about. They are trustees as to the public money which comes to their hands. The rules Which govern this trust are the law pureuant to which the llk)ney is paid ~ t o them and the law by which they 1n tum Pa¥ it out. Manifestly, none or the reU'Oll:- which operate to render recoveey or money voluntaril7 paid under a mistake or law by a private perBOn, applies to an officer. 'l'he law which fiXes hie duM.es is his powor of attomevJ l.f he neglect to follow it, h1a oeetui que trust ougbt not to surtel'. In fact, public policy requires that all officers be required to perfor. their duties within the strict 11m1t3 of their legal author! ty. " We are enclosing a copy or an opinion of this office dated December 'Z{, 1954, addre a sed to Honorable J. A. Rouveyrol, Com- missioner of :Finance., construing Missouri' a depositary law found at Chapter 110 RSMb 1949. Some minor changes have been made in the law since the opinion wae written, but the principles or law stated therein are still applicable. JID'Mtlt Enc. Yours ve'l'f truly, THDMIS P. EXoL!'lVN Attorney General