Eison v. Shirley, 165 Ga. 374

Eison v. Shirley

165 Ga. 374 | Ga. | 1927

Hill, J.

(After stating the foregoing facts.)

The answer to the petition as amended was sufficient to withstand the general and special demurrers, and the court did not err in overruling them.

The verdict was authorized by the evidence. The defense, as made by the answer and the evidence, was in substance the following: The warrant issued by the former ordinary in favor of the plaintiffs, who sought by mandamus to compel the present ordinary to levy a tax for the purpose of paying off the warrant, was a legal fraud on Milton County, and the former ordinary and the plaintiffs had conspired to and did perpetrate this fraud. The former ordinary, about two years before the expiration of his term of office, employed plaintiffs as prohibition agents for the purpose of enforcing the prohibition law by capturing. and destroying stills, etc., and called these men so employed “county policemen of Milton County,” and made a contract with them to perform certain duties only in connection with destroying stills and distilling apparatus, and to apprehend cars conveying liquor through said county and to capture “liquor runners.” For these services plaintiffs were to be paid certain specified fees for each piece of work, and were to receive as compensation for this work money derived from the proceeds of this “line of work.” This fund, known as “the prohibition fund,” amounted to a considerable sum at the time plaintiffs were first employed, but was soon exhausted; and *378on the day before the former ordinary was about to retire from office on account of the expiration of his term, he issued this warrant on the county treasury for $811.10; the warrant to be paid “out of county officers fund.” It is insisted by the plaintiffs that the warrant was legal and 'in accordance with the contract, and that the officers should be paid out of the county fund. On the other hand the defendant contends that the warrant was issued without authority, and contrary to the terms of the contract under which the plaintiffs were employed; that the plaintiffs were to be paid “by the piece for all their work,” and that plaintiffs’ services were to be paid for only from funds which might arise from the enforcement of the prohibition statute, that is from fines, forfeitures, and sales of cars or other contraband articles. At the time that the warrant was drawn there was in the treasury no “county officers fund” from which the warrant could be paid. We are of the opinion that under the facts the plaintiffs were not county policemen as contemplated by the act of 1914 (Park’s Code, §§ 850-855)) which act superseded the act of 1913 (Park’s Code, §§ 855(1), 855(2). The act of 1914 applies to all counties of the State. (See Michie’s Georgia Code (1926), §§ 855 et 'seq.) The plaintiffs were special officers employed by the former ordinary to perform certain specified duties, and not the general duties devolving upon county policemen under the code. Under the code, county policemen are “appointed” by the ordinary and become county officers by virtue of such appointment, and the law requires that at the time of such appointment the ordinary shall “fix the salary” of such county policemen; and in such circumstances the ordinary is authorized to levy a tax to pay their salaries. County policemen, under such appointment, are not confined to the enforcement of any particular statute, as in the present case. The statute requires that policemen so appointed, as already indicated, shall receive a fixed salary, and not fees for certain specified work in the enforcement of one particular statute; and where the law fixes a salary which an officer is to receive for his services, he can not recover commissions or fees. Phillips v. Hanks, 154 Ga. 244 (113 S. E. 806). Where an ordinary has agreed to pay specified fees to aid in the enforcement of the prohibition law only, the county authorities, whose duty it is to levy the tax authorized by law, can not be required to levy *379a tax for such purpose, in the absence of some provision of law. See Koger v. Hunter, 102 Ga. 76 (29 S. E. 141). If work or services are rendered under a contract which the ordinary is not authorized to make, no implied obligation arises on the part of the county to pay for such services, even though the county receives the benefit thereof. Decatur County v. Roberts, 159 Ga. 528 (126 S. E. 460); Bowers v. Hanks, 152 Ga. 659 (111 S. E. 38). Mandamus can not be applied as a remedy to compel an act not authorized by law. Hannah v. Lovelace-Young Lumber Co., 159 Ga. 856, 859 (127 S. E. 225). We are of the opinion that under the evidence as applied to the foregoing principles, the jury were not only authorized but required to find a verdict in favor of the defendant. Judgment affirmed.

All the Justices concur.