Jenkins v. State , 219 Ala. 554 ( 1929 )

On Rehearing. It is insisted that this court has heretofore held that a county depository was not an officer, but a contractee, citing Mims v. Bugg, 196 Ala. 460, 71 So. 699; Compton v. Marengo County Bank, 203 Ala. 129, 82 So. 159. We were perfectly aware of these cases, but did not then, and do not now, think that they bear upon the question here involved. In the first place, they did not involve a quo warranto proceeding to remove one acting as an officer, and we may concede, but do not decide, that a depository as provided by section 316 of the Code of 1923 is a contractee and not subject to removal by quo warranto, as we are not dealing with a depository but an emergency individual selected under section 322 to act as treasurer. So while the office of county treasurer, as it formerly existed as to Geneva county, has been abolished, still the law provides for a person to act as treasurer in case no depository is selected under section 316 of the Code. Section 322 not only provides for the selection of an emergency treasurer, but, as heretofore held, his term is fixed for the calendar year, and said section also authorizes the county commissioners to fix the terms and conditions. We think the relator and respondent are both claiming the right to act as treasurer and not depository, and the case of Michael v. Welch, supra, is in point that they are subject to removal by quo warranto.

We think that the minutes of the commissioners' court, as offered in evidence, sufficiently show the authority of said court, under the statute, to select the relator as acting treasurer. It says: "The court of county commissioners have been unable to designate any depository for the county funds, by reason of their inability to secure from any bank within its limit terms for handling of the county funds, as provided by law, satisfactory to the court."

The application for rehearing is overruled.

GARDNER, BOULDIN, and FOSTER, JJ., concur.