161 Ga. 220 | Ga. | 1925
S. W. Martin, as sheriff of the city court of Bainbridge, instituted mandamus proceedings against the board of commissioners of roads and revenues of Decatur County. The petition alleged, that the fiscal affairs of the county were in charge of the defendants; that certain persons had been convicted, in the city court of Bainbridge, of misdemeanor offenses, and'after sentence by the court had been received by the county and put to work on the public works of the county; that during the months of August, September, October, and November stated costs had accrued to petitioner in the respective cases, which had not been paid; that in the circumstances it was the duty of the defendants, imposed by the act of 1924 (Acts 1924, p. 225), to pay the petitioner his said costs, but nevertheless they had refused payment after demand; and that there were sufficient funds in the county treasury to pay the costs. The prayers were, for mandamus nisi, and that on the hearing the defendants be required to pay the specified items of cost. The defendants filed a general demurrer which was elaborated as follows: (3) “Because there is no allegation in the petition that any tax has been levied or any fund raised which the defendants would be authorized to appropriate to the plaintiff’s demand.” (4) “Because under the law, and especially under the provisions of the constitution of the State of Georgia, found in Civil Code of 1910, section 6562, the defendants have no power to levy a tax to pay the plaintiff’s demand, and if the act of the General Assembly of Georgia, approved August 7th, 1924, found in the Acts of 1924, page 225, amending the act establishing the city court of Bainbridge, should be construed as authorizing the defendants to levy and collect such a tax, said act would be unconstitutional as being in violation of article 7, section 6, paragraph 2, of the constitution of Georgia, found in section
The defendants also filed an answer admitting the official character of the petitioner and the respondents, and refusal of the demands for payment of the alleged fees, but denying all other allegations of the petition. In the concluding paragraph the answer alleged: “There are no funds in the treasury of Decatur County, which can be lawfully appropriated to the payment of plaintiff’s demand; and further deny that any taxes have been levied or collected, which can be lawfully appropriated to the payment of said demands; and further deny that the defendants have lawful authority to levy a tax for such purpose.” After the demurrer and answer were filed the plaintiff amended his petition by alleging that the defendants had in the treasury of the county, raised by tax levy for expenses of court, sufficient funds to pay the claim, and by praying that defendants be “required to levy a tax in 1925, sufficient to pay all said expenses of court, including any convictions in 1924 up to the time of levying the new tax in 1925 and for the entire year of 1925.” The demurrer to the petition was renewed to the petition as amended. The judge overruled the demurrer, and on the same day rendered a judgment requiring the defendants to levy a tax in 1925, “sufficient to pay the expenses of the court for 1924 and 1925 to cover the fees . . as prayed in the petition as amended,” but providing further that “mandamus absolute to pay the fund at this time is passed to be decided by a
The act approved August 7, 1924 (Acts 1924, p. 225), provides for the amendment of the act approved November 27, 1900 (Acts 1900, p. 104), creating the city court of Bainbridge, by adding the following provisions: “That the county commissioners of roads and revenues in and for Decatur County, Georgia, and other
It is insisted by the respondents that.the provision for the payment of the fees of the designated officers is not a provision for payment of “court expenses,” within the meaning of article 7, section 6, paragraph 2, of the constitution of this State (Civil Code, § 6562), which authorizes counties to levy taxes for “court expenses,” and therefore that the act is violative of that provision
That decision was followed and applied in Chatham County v. Gaudry, 120 Ga. 121 (47 S. E. 634), and Clark v. Eve, 134 Ga. 788 (68 S. E. 598). In the latter case it was said: “The power to create local city courts is recognized in the constitution. At the time of the adoption of the constitutional provision above mentioned [article 7, section 6, paragraph 2], city courts were in existence, and the salaries of the judges were paid by local taxation.
This ruling is not opposed to the decision of this court in Clark v. Hammond, 134 Ga. 792 (68 S. E. 600), holding: “Under a proper construction of art. 6, sec. 13, par. 1 and 2, of the constitution of 1877, salaries of the judges of the superior courts are payable exclusively from the State treasury. In so far as the act of 1904 (p. 73), as amended by the act of 1905 (p. 100) and the act
The case also differs from Adair v. Ellis, 83 Ga. 464 (10 S. E. 117). In that case two former solicitors of the city court of Atlanta had claims for certain amounts on account of insolvent costs not collected by them from the fines and forfeiture funds arising in that court. In these circumstances the legislature passed an act approved August 3, 1889 (Acts 1889, p. 1153), authorizing the commissioners of roads and revenues of Fulton County to levy a tax to pay a certain proportion of the amount of such insolvent costs. In a mandamus proceeding the judgment was adverse to the respondents, and' on exception the judgment of the trial court was reversed. It was held by this court that the insolvent costs of the former solicitors of the city court of Atlanta were not part of the “expenses of court” within the meaning of the constitution. The act creating the city court of Atlanta contained provisions for the payment of insolvent costs from fines and forfeitures, but did not contain any provision for payment thereof from any other source, or purport to declare them to be expenses of court. The act of 1889, supra, did not purport to amend the act creating the city court of Atlanta or to become a part thereof, but was expressly an act to authorize the compromise and adjustment of pre-existing claims of designated persons for insolvent costs due them as solicitors of the city court of Atlanta, and to provide for the payment thereof. These features of the case distinguish it from the case under consideration and the case of Adam v. Cohen, 84 Ga. 725 (supra), and the above-mentioned cases that followed it. Here the act creating the city court of Bainbridge, as amended by the act of 1924, made express provision for payment of the sheriff’s costs, such as are involved in this ease, from the county treasury; and the fees for which the sheriff is contending accrued after enactment of the law that authorized them to be paid from the treasury. It was insisted that the county authorities did not'have power to levy a tax to pay the fees. That contention is without merit. Having decided that the statute should be construed as authorizing payment of the fees as expenses of court within the meaning of the constitution, there is authority to levy a tax for the payment thereof. Article 7, section 6, paragraph 2, of the constitution expressly authorizes counties to levy a tax to pay expenses of court.
The case differs on its facts from Clark v. Reynolds, 136 Ga. 817 (8) (72 S. E. 254). The question there was whether the act of 1893 (Acts 1893, p. 485) and the amendatory act of 1894 (Acts 1894, p. 93), authorizing the treasurer of Richmond County
The rulings announced in headnotes four to ten, inclusive, do not require elaboration.
Judgment affirmed in part, and reversed in part.