
    AUSTIN, State Banking Com’r, v. FOX.
    
    (Nos. 1038—4950.)
    Commission of Appeals of Texas, Section A.
    Jan. 18, 1928.
    ■I. Taxation <S=527 — Tax collector has no authority to receive anything but cash in payment of taxes.
    A tax collector has no authority to receive •anything but cash in payment of taxes.
    :2. Taxation <§=527 — Private arrangements for payment of taxes, made between collector and taxpayers, and performance thereof are at risk of parties.
    Private arrangements for payment of taxes •different from statutory method, made between collector and taxpayers, and performance there•of are at risk of parties thereto, and not of state •or county.
    5. Taxation <©=>1527 — State or county may adopt or, through estoppel, get benefits of private arrangements for payment of taxes between collector and taxpayers.
    State or county may adopt or, through assertion of estoppel, get benefits of private arrangements for payment of taxes made between •collector and taxpayers.
    ■4. Taxation <§⅛>568(6) — In case of loss through private arrangements for payment of taxes between collector and taxpayers, breach of bond can be rested thereupon.
    In case of loss through private arrangements for payment of taxes different from statutory method between collector and taxpayers, breach of bond can be rested thereupon.
    •5. Taxation <§=527 — Liability of taxpayer persists until acts amounting to payment of taxes in statutory way are done, or until state or county does act amounting to ratification of transaction between taxpayer and collector.
    Liability of property, owner for taxes persists until such acts are done as amount to payment of taxes in statutory way, or until state or county does some act which amounts to ratification of what had previously been doné informally by owner and collector with consequent release of tax lien.
    •6. Banks and banking <©=»!5 — Tax money deposited ip name of collector who settled with state, and county held entitled to protection under guaranty fund as nonpublic funds; “public funds” (Rev. St. 1925, art. 447).
    Deposits of tax money in name and to order •of county tax collector who had settled with .state and county for all taxes held not “public ■funds,” but entitled to protection under guaranty fund, under Rev. St. 1925, art. 447, as nonpublic, unsecured, and noninterest-bearing deposits.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Funds.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by J. J. Fox against Chas. O. Austin, Banking Commissioner of Texas, and others. Judgment for plaintiff was corrected and affirmed as corrected by the Court of Civil Appeals (297 S. W. 341), and defendant named brings error.
    Affirmed.
    L. C. Sutton and John W. Goodwin, both, of Austin, for plaintiff in error.
    Seabury, George & Taylor, of Brownsville, for defendant in error.
    
      
      Rehearing denied March 7, 1928.
    
   NICKELS, J.

The opinion of the Court of Civil Appeals is reported at page 341 of 297 S. W. Writ of error was granted, in respect to the question whether the deposits standing in the name of J. J. Fox on the records of the defunct bank were public funds. If they had that character, the security of the guaranty fund, of course, is unavailable. Article 447, R. S. 1925.

Some relevant formularies may be stated: (a) A tax collector has no authority to receive anything but cash in payment of taxes. Figures v. State (Tex. Civ. App.) 99 S. W. 412; Ward v. Marion County, 26 Tex. Civ. App. 361, 62 S. W. 557, 63 S. W. 155. (b) Private arrangements for payment (differing from the statutory method), made between the collector and taxpayers, and performance thereof are at the risk of the parties thereto, and not of the state or county. Ibid.; Orange County v. T. & N. O. R. Co., 35 Tex. Civ. App. 361, 80 S. W. 670 (writ refused) ; T. & N. O. R. Co. v. State, 43 Tex. Civ. App. 580, 97 S. W. 142. (c) The state or county may adopt or, through assertion of estoppel, get the benefits of such acts or arrangements (Ibid.; Morris v. State, 47 Tex. 592; Webb . County v. Gonzales, 69 Tex. 456, 6 S. W. 781; Mast v. Nacogdoches County, 71 Tex. 384, 9 S. W. 267), or, in ease of loss, a breach of the bond can be rested thereupon (Ibid.; Wilson v. Wichita County, 67 Tex. 647, 4 S. W. 67). It results that liability of the property owner persists until such acts are done as amount to payment of taxes in the statutory way, or until the state or county, etc., does some act, etc., which amounts to ratification of what had previously been done informally by the owner and collector with consequent release of the tax lien.

Fox, tax collector or otherwise, has never received money called for in the receipts issued, but, contrarily, has only received credits indorsed on the bank books. If the matter remained in that condition, the taxpayers would still be liable because of nonpayment, or tbe state could release them by pursuing Fox and bis sureties, but tbis would require a new eboicé by tbe state, wbicb was never made and wbicb cannot yet be made.

Throughout tbe period intervening a date prior to tbe first credit given Fox by tbe bank now defunct and dates (subsequent to tbe last of those credits) of final settlements bad between him and tbe state and county in respect to all taxes then involved, there was on deposit in tbe depository bank funds (to which be was entitled as commissions earned) in excess of tbe aggregate of tbe credits in tbe other bank. In those settlements tbe state and county accepted whatever amount of those funds was appropriate in lieu of moneys due either by Fox, tbe defunct bank, or tbe property owners for taxes supposedly represented by tbe credits now in question.

Whatever rights might have accrued to tbe state or county were, under tbe facts, at all times inchoate and dependent upon claim asserted upon happening of contingencies. Tbe contingencies never occurred so as to authorize tbe claim, and the claim was never made, nor, in view of settlements with Fox, may the contingencies yet happen or rightful claim be made. A different ruling would involve complete reversal of tbe policy in respect to receivers of public moneys as established in tbe authorities cited and others and jeopardize tbe public interests in tbe manner therein expressed and implied.

We bold, tbe “deposits” are entitled to protection as nonpublic, unsecured, and non-interest-bearing ones, and, accordingly, we recommend affirmance of tbe judgment of tbe Court of Civil Appeals.

CURETON, C. J.

Judgment of tbe Court of Civil Appeals affirmed, as recommended by tbe Commission of Appeals. 
      ®=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     