No public moneys in the custody of the state treasurer or the treasurer of any county, city or town in this state, or in the custody of any board in control mentioned in Section 6 hereof, shall be deposited in any bank or savings and loan association (except as otherwise herein provided) until such bank or savings and loan association is qualified to receive deposits of public moneys by depositing collateral security or by giving bond, as provided in this act.

Any bank or savings and loan association designated as such depository by the proper treasurer and/or board of finance may qualify by giving a bond or bonds in such sum as may be determined by said treasurer and/or board of finance, for the safekeeping and payment of such moneys, and all interest thereon, which bond or bonds shall run to the state of New Mexico, shall be subject to the approval of the proper board of finance of the state, county, city or town, or board in control, as the case may be, and the district judge of the district within which such county, city, town or board in control is situated and conditioned substantially as follows:

KNOW ALL MEN BY THESE PRESENTS: that we . . . . . . . . . . of . . . . . . . . . . as principal, and . . . . . . . . . . as surety, are held and firmly bound unto the state of New Mexico, in the just and full sum of . . . . . . . . . . . dollars ($ . . . . . .) for the payment of which, well and truly to be made, we bind ourselves and all our heirs, personal representatives, successors and assigns, jointly and severally, firmly by these presents.

Dated the . . . . . day of . . . . . . . . ., A.D., 19 . . . ..

The condition of the foregoing obligation is such that

WHEREAS, the said principal, in consideration of the receipt of certain moneys of . . . . . . . . . . in the state of New Mexico on deposit, (the amount whereof shall be subject to withdrawal or diminution by the treasurer of said . . . . . . . . . . as the requirements of said shall demand, and which amount may be increased or decreased as said treasurer may determine) and for the privilege of keeping the same, has agreed to pay and will pay the said . . . . . . . . . . in the state of New Mexico, interest on all moneys so deposited at the rate fixed by the board of finance of said . . . . . . . . . ., to wit: . . . . . . . . . . . at the rate of per centum per annum, the same to be paid monthly on the first day of each month, upon the average daily balance of the moneys of said . . . . . . . . . . so on deposit for the preceding month or fraction thereof:

NOW THEREFORE, if the said principal shall, from the . . . . . . day of . . . . . . . . . ., A.D., 19 . . . ., on the first of each and every month, render to the treasurer and the board of finance of said . . . . . . . . . . a statement, in duplicate, showing in detail, the daily balance of said moneys, so held by said principal on deposit, and the amount of interest accrued thereon, for the last preceding month, and shall pay over said deposit and said interest, upon the check, order or demand in writing of the officer thereunto duly authorized, and shall calculate, credit and pay interest as aforesaid, at the rate and in the manner aforesaid, and shall, in all respects save and keep the said . . . . . . . . . . safe and harmless by reason of the making of said deposit or deposits, and shall generally do and perform each and everything [every thing] required of depositories of public funds to be done and performed by the provisions of a certain act of the state of New Mexico, entitled, "An Act in Relation to Public Moneys," enacted by the sixth legislature of the state of New Mexico and all amendments thereof and any and all other acts in relation to public moneys then the obligation shall be void and of no effect, otherwise to be and remain in full force and virtue.

It is a further condition of this obligation, however, that said surety shall have the right to terminate its liability hereunder by giving thirty days' notice in writing to the treasurer and to the board of finance of said . . . . . . . . . . of its election so to do, and after the giving of such notice no further moneys shall be deposited with such depositories, and thereupon an accounting shall be immediately had of the liability of such depository for the moneys theretofore deposited with it, and until the payment of all moneys found to be due on such accounting, this bond shall remain in full force and virtue.

WITNESS our hands and seals the day and year first hereinafter written.

Such bond shall be executed as surety by a surety company authorized by compliance with the laws of New Mexico to do business in this state; and neither the state treasurer, nor any county, city or town treasurer, nor the treasurer of any board in control mentioned in Section 6 hereof shall have on deposit at any time more than the penal amount of the bond or bonds given by a depository to secure such deposit.

All bonds given under the provisions of this section to secure state moneys shall, after the approval thereof by the state board of finance be safely kept on file by said state board of finance; and all bonds given hereunder to secure county, city or town moneys, or moneys of any board in control as herein defined, shall, after the approval thereof by the proper board of finance, and the district judge, be kept in the custody of the county clerk of the county wherein is located the board of finance approving the same.

The state board of finance and each county clerk shall keep a record of all such bonds, which record shall be known as "depository bond record" and shall be in form as prescribed by the state board of finance.

Any and all bonds which may be given in pursuance of this act to secure moneys of the state, or moneys of the counties, cities, towns or board [boards] in control, or of moneys lawfully entrusted in the care and custody of the treasurers of such counties, cities, towns or boards in control may be put in suit and prosecuted against all or any one or more of the obligors, principals and sureties named therein in the name of the state of New Mexico for the use and benefit of the state, county, school district, city or town or board in control to secure whose money or any moneys lawfully entrusted to the care and custody of whose treasurers such bond is given.

History: Laws 1933, ch. 175, § 5; 1941 Comp., § 7-215; 1953 Comp., § 11-2-17; 1981, ch. 332, § 4.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — Laws 1933, ch. 175, § 6, referred to in the first and tenth paragraphs, was repealed by Laws 1934 (S.S.), ch. 24, § 5.

The term "this act," which appears in the first and last paragraphs, refers to Laws 1933, ch. 175, which is compiled as 6-10-8 to 6-10-10, 6-10-15, 6-10-18, 6-10-19 and 6-10-51 NMSA 1978.

The act entitled "An Act in Relation to Public Moneys," enacted by the sixth legislature, was enacted as Laws 1923, ch. 76, and is compiled herein as 6-10-2, 6-10-3, 6-10-20, 6-10-29, 6-10-37 to 6-10-42, 6-10-44, 6-10-46, 6-10-47, 6-10-50, 6-10-52 to 6-10-54, 6-10-58 and 6-10-61 NMSA 1978.

Qualification of depository prerequisite to receipt of deposits. — State depositories are not entitled to receive deposits of public funds from the state treasurer until they qualify by providing security for the same. State ex rel. Hannett v. Graham, 1925-NMSC-041, 30 N.M. 537, 239 P. 740.

Statutory requirements part of bond. — A statute, in pursuance of which a bond is given, is read into the bond, and the parties cannot, by contract or otherwise, limit the statutory obligation. Fidelity & Deposit Co. v. Richard, 1940-NMSC-042, 44 N.M. 424, 103 P.2d 628.

Compensated surety entitled to contribution by additional surety. — Where a depository bond was executed by additional surety in statutory form with the understanding that an additional bond was to secure deposits as would at any time be in excess of a certain sum, the original compensated surety was without knowledge of additional bond, the depository failed with county deposits less than the amount secured by additional surety and the loss was paid by compensated surety, the compensated surety was entitled to contribution from the additional surety. Fidelity & Deposit Co. v. Richard, 1940-NMSC-042, 44 N.M. 424, 103 P.2d 628.

Separate security for school funds. — Where county commissioners exact a bond to secure a county deposit, surety on such depository bond is not liable for school moneys required by law to be deposited as directed by the school board and to be secured separately. State v. Fidelity & Deposit Co., 1932-NMSC-022, 36 N.M. 166, 9 P.2d 700.

Surety of depository bank liable for loss upon attempted transfer of funds from depository to another bank. — Where county funds were lost on an attempted transfer from a depository bank to another bank with the knowledge and consent of the agent of the surety of depository, and the original depository was closed, the surety of depository was liable for the loss of the funds of the county. Nat'l Sur. Co. v. New Mexico, 16 F.2d 873 (8th Cir. 1926).

Deposits not to exceed face value of security. — In no event should deposits exceed the face value of the security given by the depository bank. 1962 Op. Att'y Gen. No. 62-71.

County boards of finance are deciding authority in evaluating collateral, but they are subject to the supervisory control of the proper district judge when the collateral security is in the form of surety bonds as provided in this section. 1962 Op. Att'y Gen. No. 62-71.

Surety liable for loss and interest to date of settlement. — Upon the closing of a bank, a surety company is liable for its proportionate share of the loss and for interest to date of settlement, unless it tenders its share of the loss at an earlier date. 1924 Op. Att'y Gen. No. 24-3750.

United States bonds acceptable in lieu of depository bond. — United States liberty bonds may be accepted in lieu of a depository bond, if the board finds that the market value of the bonds equals their par value. 1921 Op. Att'y Gen. No. 21-3171.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63C Am. Jur. 2d Public Funds §§ 21 to 29.

26A C.J.S. Depositaries § 9(3).