159 Ga. 528 | Ga. | 1925
On May 27, 1922, the commissioners of roads and revenues of Decatur County entered into a written contract with J. F. Eoberts, which was spread upon the minutes of that board, and under which Eoberts was employed and authorized to investigate unreturned taxes and those liable therefor to the county during the period of the statute of limitations, and to have unreturned property, when discovered, placed upon the tax-digest, so that the taxes due thereon could be collected through the regular channels. In compensation for his services Eoberts was to be paid 25 per cent; of the taxes actually paid on all unreturned property discovered and disclosed by him, when such taxes were paid into the county treasury. Under this contract Eoberts discovered unreturned property on which $14,382.45 of taxes were collected and paid into the county treasury. On this sum Eoberts was entitled to receive from the county, under said contract, $3595.61. Of this sum the county paid him $1841.16, leaving a balance due him of $1754.45. On its refusal to pay this balance, Eoberts brought suit against the county to recover the same. The county demurred to his petition, upon the grounds: (1) that said contract violates section 1116(j) of 'Park’s Code; (2) that the petition fails to show that Eoberts had complied with the provision contained in section 17 of the act of August 18, 1919 (Ga. Laws 1919, pp. 45, 55), providing for the appointment of special tax investigators; and (3') that there was no law authorizing the county commissioners of Decatur County to make the contract with Eoberts for ferreting • out unreturned property for taxation. The defendants likewise filed an answer in which they set .up the above defenses. The trial judge overruled the demurrer and said defenses, and judgment was rendered in favor of plaintiff. To this judgment the defendants excepted and took the case to the ■ Court of Appeals. That court affirmed the judgment of the lower court; and the case was brought by certiorari to this court to review the last-mentioned judgment.
Did the commissioners of Decatur County possess the power to make this contract? It is the earnest insistence of counsel for
Under the general tax system of this State, is there an express duty required of, and .express authority conferred upon, other public officers of this State to ferret out unreturned property for taxation, and to enforce the payment of taxes on such property? If a person fails to make a return, in whole or in part, it is the duty of the tax-receiver to make the valuation and assess the taxation thereon, and, having done so, to double the tax thereon. Civil Code (1910), §1105. It is the duty of the tax-collector to examine the digest of the receiver, and, if he knows of any default, to make a schedule of such in the same manner as is done by the receiver, and of any other that he may then or afterwards learn, and of their property, and assess a double tax. Civil Code (1910), §. 1127. By section 2 of the act of August 14, 1913 (G-a. Laws 1913, p. 123), there is established in each county in this State a board of county tax-assessors. By section 5 of this act it is provided that “The said board shall have authority to employ an agent to seek out all unreturned property in the county and bring it to the attention of the board, and for such services they may allow said agent a commission of ten per cent, of the amount of the tax arising to the county from such unreturned property so discovered 'and placed on the books by his efforts.” 1 Park’s Code, § 1116(j). Again: “All taxes levied for county purposes must be assessed upon the tax-receiver’s books for each year, and collected by the tax-collector, who shall pay the same to the county treasurer.” Civil Code (1910), § 517. So the tax-collector of each county is made the sole agent of the county to collect all taxes due the county on both returned and unreturned property. So we have a full and complete system for the return of property for taxation, and for ferreting out unreturned property for taxation; and a special tribunal, clothed
There is nothing to the contrary of our present holding in Cloud v. County of Taliaferro, 138 Ga. 214 (74 S. E. 1074). In that case the county employed attorneys to collect from the railroad company taxes for which the company denied liability. The purpose was to establish the county’s right to annually collect this tax. These taxes .could only be collected by litigation. To litigate at all, attorneys are necessary. Especially are their services needed to successfully litigate. There was no other method by which the county could get its right to this tax fixed, except to litigate with the railroad company, and to litigate it was necessary to employ counsel. The power of the county to employ attorneys to collect this tax and to establish its right to the tax arose from its right to collect the tax from the railroad, which denied liability and refused to pay.
But it is urged that the county should not be permitted to receive the fruits of the plaintiff’s services and refuse to pay for them. The reply to this contention is twofold. In the first place the plaintiff is suing upon an express contract for the payment of commissions on taxes collected, not for the value of services rendered by plaintiff and the benefits of which had been received by the county. In the latter case the obligation implied by the law to pay does not originate in the unlawful contract, but springs from considerations outside of it.' The plaintiff is not suing on any implied obligation of the county to pay him for services rendered, but ■upon an express, written contract which we have undertaken to show is illegal and void. But if the plaintiff were suing to recover upon the implied obligation of the county to pay for services rendered by him and the benefits of which were received by the county, we do not think that he could succeed. The powers of all public
Counsel for the plaintiff relies upon the decision in Cloud v. County of Taliaferro, supra, to sustain the position that the county, having received the benefits of the services of the plaintiff, should be required to pay therefor. The difference between that case and the case at bar is that this court held that the county had the power to make the contract which was dealt with in that case. In the present case the county commissioners had no authority to make the contract which the plaintiff seeks to have enforced. There is nothing in Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244), which conflicts with the ruling which we now make. In that case the County of Butts had borrowed money upon its note, when it had no authority so to borrow or to give its note therefor; but the money so received was used by .the county to discharge a legally incurred liability for a current expense. This court held that an action for money had
In view of the rulings above made, we are of the opinion that the judgment of the Court of Appeals should be reversed.
Judgment reversed.