29 S.E.2d 441 | Ga. Ct. App. | 1944
Lead Opinion
1. The mere fact that a county policeman receives a salary does not preclude him from receiving his part of the fees provided by law for the officers who make the cases and furnish the evidence for the confiscation of vehicles engaged in the illegal transportation of liquor.
2. The twelve-months statute of limitations relating to the filing of claims against counties does not apply to a claim by an officer for money he was entitled to receive from the proceeds of the sales of vehicles confiscated for engaging in the illegal transportation of liquor.
3. Under the allegations of the petition the plaintiff is not estopped to claim the sums sued for in the present action.
4. The court erred in sustaining the demurrers and in dismissing the action.
The defendant demurred to the petition on the grounds that it failed to set forth a legal or valid cause of action; that the petition *779 showed that the plaintiff was a county policeman, and as such he was not entitled to receive any commissions, fees, or other compensation other than his salary; that the petition failed to show that a claim was presented to the defendant within twelve months after such claim might have accrued; and that the petition showed a voluntary endorsement and delivery of the checks to the defendant and a waiver of any right of the plaintiff, and that the plaintiff was estopped from asserting a claim thereto. The court sustained the demurrer and dismissed the petition, and the exception here is to that judgment.
The plaintiff in error contends that he is entitled to receive the fees provided by the Code, § 58-207, for an officer making the seizure of an automobile engaged in the illegal transportation of intoxicating liquors, where such automobiles are condemned and sold. The plaintiff was employed by the defendant under the provisions of the Code, § 23-1401, which provides that the county commissioners, or ordinaries in those counties which do not have commissioners, shall have authority to elect or appoint county police. It is provided by § 23-1402 that the county commissioners or ordinaries shall fix the salaries of the county police, which shall be paid out of the county treasury, and shall have authority to levy a tax to pay such salaries and the expense of the county police. Section 23-1403 provides that the county police, under the direction and control of the commissioners or ordinaries, shall have all the powers of sheriffs, as peace officers in the county of their election or appointment. The Code, § 58-207, after providing for the seizure and sale of all vehicles or conveyances used in the illegal transportation of liquors by any sheriff or other arresting officer, provides in part, as follows: "The proceeds arising from said sale shall be applied as follows: (a) To the payment of expenses in said case, including the expenses incurred in the seizure. (b) One-third of the remainder to the officer making the seizure and furnishing the proof, . . (c) To the payment of the costs of the court which shall be the same as now allowed by law in cases of forfeiture of recognizance. (d) The remainder, if any, shall be paid into the county treasury to be held as a separate fund to be paid out under order of the court as insolvent costs in other cases arising from the violation of any of the provisions of this law: provided, that in any county in which any of the officers of either the county, city or *780 superior courts are now on a salary, or hereafter placed on a salary, such remainder of the funds applicable to the payment of insolvent costs of such officer or officers shall be retained in the general fund of, and become the property of such county." There is no provision of law which has come to our knowledge prohibiting an officer who receives a salary from also receiving fees, and there is no such law applicable to those involved here. This being true there is no reason why the legislature could not provide for fees, or commissions, or other sums, in addition to the officer's salary. It is quite clear that § 58-207 does not preclude the officers here from receiving the sums therein provided for, for the reason that the section contemplated that certain officers were then on a salary and that others would be put on a salary, and with those facts in mind, it did not provide that if an officer was on a salary, or was put on one, his part of the one-third of the proceeds of the sale should become the property of the county. It provided only that if an officer of court was on a salary, or was put on one, the part of the money which would have gone into the insolvent-cost fund would not go there, but would go into the general treasury of the county as the county's money. That was for the reason that if the court officers were on salaries there would be no insolvent-cost fund. It did not, and does not provide that the salaried court officers shall not receive the one-third allotted to them. It follows that since the section does not provide that a salaried court officer shall not receive his part of the one-third of the proceeds of the sales, it seems clear that it was the intention of the legislature to put all arresting officers on the same basis, and therefore an arresting officer who is not a court officer is not deprived of the proceeds of the sales, even though he is on a salary, provided there is no other provision of law prohibiting him from receiving compensation in addition to his salary. It seems clear that if the legislature had intended to provide that a salaried officer, whether he be court officer or not, should not participate in the proceeds of the sales, it would have provided that such salaried officer's part of the proceeds should go into the general treasury of the county and become its property.
2. It was held in Lynch v. Harris County,
3. In Lynch v. Harris County, supra, it was also held that where a county claimed the title to land, an individual who also claimed title to the land was under no duty to present the county a notice of such a claim within twelve months. The same reasoning to this case. If the contest had been centered around the personal property capable of identification trover would have been an appropriate remedy. Here the property involved is money, under the circumstances not susceptible to identification. The action is for its equivalent, and in principle is the same as if it were for the identical money. Under authority of the Lynch case it was unnecessary for the claims to be presented to the county within twelve months.
4. There are no facts alleged in the petition showing that the officer is estopped to make the claim he is making. It would seem to be against public policy for an arresting officer to surrender to the county authorities such fees as are here involved. The purpose of the law is to secure better enforcement by giving a monetary incentive to the arresting officers of the State. If this incentive is taken away the purpose of the law is thwarted and made ineffective.
The court erred in sustaining the demurrers and in dismissing the action.
Judgment reversed. Parker, J., concurs.
Dissenting Opinion
The plaintiff was employed by the defendant under the provisions of the Code, § 23-1401, which provides that the county commissioners, or ordinaries in those counties *782
which do not have commissioners, shall have authority to elect or appoint county police. It is provided by § 23-1402 that the county commissioners or ordinaries, shall fix the salaries of the county police, which shall be paid out of the county treasury, and shall have authority to levy a tax to pay such salaries and the expense of the county police. Section 23-1403 provides that the county police, under the direction and control of the commissioners or ordinaries, shall have all the powers of sheriffs as peace officers in the county of their election or appointment. It was alleged that one of the duties of the plaintiff, as a county policeman, was to seize automobiles engaged in the illegal transportation of intoxicating liquors; and the fees claimed in the present action arose by reason of and in connection with the plaintiff's performance of that duty. Where a public officer is on a fixed salary, he is generally not entitled to retain fees or commissions received by him for the performance of duties connected with his office. 43 Am. Jur. 149, § 360. The reason for this rule is that, where a public officer receives a fixed salary, it is presumed that the salary received by him is his compensation for the performance of the duties of the office, and that all fees and commissions received by him in connection with the performance of his official duties are received by him in his official capacity, and not as additional compensation. 46 C. J. 1018, § 244. "Acts providing for costs and salaries are to be strictly construed, and the measures of the compensation cannot be increased by construction, or in any indirect manner, beyond the amount specified by law." McAlpin
v. Chatham County,
In the case of Eison v. Shirley,
I am of the opinion that the fees sought to be collected by the plaintiff from the condemnation of automobiles seized by him in the illegal transportation of intoxicating liquors were properly turned over to the county, and that the plaintiff was not entitled to recover them. Under this view of the case, the trial court did not err in sustaining the demurrer and dismissing the petition.