
    KISER v. AUSTIN, Banking Com’r, et al.
    (No. 4527-655.)
    (Commission of Appeals of Texas, Section B.
    Oct. 14, 1926.)
    Banks and banking &wkey;>15 — Commission of tax oolleotor and private funds deposited with publio funds held not protected by state guaranty fund.
    County tax collector, who deposited in county depository, in his name as “tax collector,” taxes collected, held not entitled, on insolvency of depository, to payment out of state guaranty fund for commissions upon tax collections not withdrawn from such account and for private funds which he had deposited in such account.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by E. B. Kiser against Charles O. Austin, Banking Commissioner, and others. Judgment for the'plaintiff was reversed and rendered by the Court of Civil Appeals (277 S. W. 411), and plaintiff brings error.
    Affirmed.
    Starley & Russell, of Pecos, for plaintiff in error.
    Dan Moody, Atty. Gen., for defendants in error.
   SPEER, J.

Plaintiff in error Kiser is the sheriff and tax collector of Reeves county. The Pecos Valley State Bank was incorporated under the banking laws of this state, its depositors being secured by the depositors’ guaranty fund. This bank was duly selected as the county depository of Reeves county, and gave the bond required by law. The bank became insolvent and was closed by the banking commissioner on January 28, 1924, and since that date has been in process of liquidation. The plaintiff in error carried an account in that bank in the name of E. B. Kiser, tax collector, and likewise another account in the name of E. B. Kiser, state accountant. When the bank closed, there was a balance of $35,300.93 to the credit of the first account, and a balance .of $3,529.13 to the credit of the other account, the total balances being $38,830.06. The plaintiff in error madé claim for, and sued in the district court to recover, the sum of $5,960.78, which he alleged to be a part of the first-named account, but in reality to belong to him in his individual capacity. He alleged that this sum was made up of items of commissions received by him upon tax collections and other personal funds derived from sources entirely disconnected from his official duties. He recovered in the district court, but on appeal to the Court of Civil Appeals that court, in a majority opinion, reversed the judgment of the district court and rendered judgment denying the collector’s right to have payment out of the state guaranty fund. Associate Justice Walthall dissented (277 S. W. 411).

The majority o.f the Court of Civil Appeals held that since plaintiff in error commingled his private funds with the public funds of which he was custodian, all being deposited in the county depository in his name as “tax collector,” all constituted a public fund representing taxes collected and secured'by the depository’s bond, and therefore his claim to repayment out of the state guaranty fund could not be allowed. Justice Walthall, dissenting, expressed the view that only that portion of the deposit actually belonging to the county was secured by the depository’s bond, and therefore bore interest, and that as to the individual interest claimed by defendant in error, the same was not secured by the bond, did not bear interest, and the collector therefore was entitled to be repaid from the guaranty fund. Both sides of the question have been thoroughly discussed by the respective opinions.

The form of the transaction with the bank is not controlling. The manner in which an account is kept with the bank is often a matter of mere bookkeeping. The real test always is, aside from any question of estoppel precluding the inquiry: What are the real facts? Chief Justice Cureton has well said upon this point:

“The law will look through all semblances and forms to ascertain the actual fact as to whether or not there has been a bona fide deposit made, and, if not, the guaranty fund does not protect the transaction, no matter how it may be evidenced.” Kidder v. Hall, 113 Tex. 49, 251 S. W. 497.

See, also, State Banking Board v. Pileher (Tex. Com. App.) 270 S. W. 1004; Eastland County v. Chapman (Tex. Com. App.) 276 S. W. 654, 277 S. W. 629. But it of course does not follow that the real transaction is not evidenced by the form of the deposit.

While it may be true the collector was entitled to deduct from the tax collections his commissions before depositing the county funds in the bank, nevertheless he did not actually make such deduction in any way whatever, nor evidence any intention to do so. On the other hand, he evidenced the contrary intention. He was not necessarily the owner of a pro tanto interest in the collections, unless and until he had actually appropriated such interest to the payment of his claims or manifested a clear intention of doing so. He has done neither. In this case the form of the deposit correctly represents the real status of the fund. It can make no difference that the county still owes the collector his commissions, if it does; the fact remains that no part of the funds deposited had been appropriated or applied to such claim. There has been no segregation of the funds, either actual or equitable.

For these reasons the judgment of the Court of Civil Appeals through its majority opinion is correct, and we recommend its af-firmance.

CURETO'N, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. 
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