162 Ga. 216 | Ga. | 1926
Rehearing
ON MOTION EOR REHEARING.
The plaintiff in error requests a rehearing on the following grounds: “The rehearing is prayed upon the ground that the court evidently overlooked the total evidence and exclusive evidence in the case, and took as true an unproven paragraph in answer of the defendant in error and decided the case on said answer, and not on the exclusive evidence in the case. To be more specific, the undisputed evidence.shows that the treasurer of Sumter County received without dispute in excess of $1100.00 in money that should have been credited by him to fines and forfeiture fund, but which was by him, without authority of law, mixed with the general funds of the county. It was said by the court that the case was controlled by Decatur Bank & Trust Co. v. Napier, 153 Ga. 661, when as a matter of fact that ease can have no possible application to the one at bar unless it is assumed, as the court did, that the answer of the defendant in error was true, and that the exclusive sworn evidence was not true.”
It is conceded that the evidence for the solicitor-general was undisputed, as stated in the motion. The decision could not and must not be construed as an oversight by this court, nor that this
No constitutional question is raised. The brief of plaintiff in error states that the court overruled a demurrer to the petition, but no such judgment is shown by the record. The sole assignment of error complains of the judgment refusing a mandamus absolute. A general demurrer, citing the salary act of 1917, is included in the official record, but it does not appear that the court made any ruling thereon. If this act, at least in so far as it concerns the office of solicitor-general, does not abolish or discontinue the fine and forfeiture fund as it was formerly called, we have wrongly decided the case. If such fund has been abolished, that is to say, discontinued, by now placing in the general treasury of the county funds formerly deposited therein, then we have reached the correct conclusion. Evidence can not affect the question. The act provides not only that the county is “subrogated to the rights and claims of the solicitor-general,” but it also makes the same provision as to any “former solicitor-general.” The petitioner in this case stands in precisely the same legal shoes as a “former solicitor-general.” The act further provides, with reference to such officers, that the county shall stand in their places and in their stead, and shall be entitled to all funds and emoluments accruing to such officers. The act further provides that all costs both in particular cases and matters, all insolvent costs, and all fines and forfeitures, and all funds, moneys, and emoluments accruing to the office of solicitor-general in said judicial circuit, under all laws now existing or which may hereafter be enacted, shall be paid by said clerks into the treasuries of their respective counties; all of which said funds shall be the property of said counties. That is to say, that all sums collected from all cases or matters arising in any particular county shall be paid by said clerk into the treasury of that county, and shall become the property of said county. This language is clear, explicit, and comprehensive, and permits of no doubt as to the legislative intent; certainly not so far as the office of solicitor-general is concerned. It would have availed little in an economical
While this language is not so clear in all respects, it is unmistakable as to the direction that the funds shall be for the use and benefit of the respective counties. Taken all together, we adhere to the judgment already rendered — that is, that the act of 1917 as a matter of law abolished or discontinued the fines and forfeiture fund, and directed that the funds theretofore paid into the fine and forfeiture fund should be paid into the general fund of the county, and “become the property of said county.”
Lead Opinion
This ease is controlled by the case of Decatur Bank & Trust Co. v. Napier, 153 Ga. 661 (113 S. E. 89). The provisions of the act of the General Assembly (Acts 1917, p. 295, § 3) are identical with the provisions of the act construed in that case. In that ease, as well as in this, it was sought by mandamus to compel the treasurer of the county, or bank acting as treasurer in the former ease, to apply funds, not from the “fine and forfeiture fund,” but from the county’s general funds, to the payment of insolvent costs which accrued prior to the passage of the salary act. The court did not err in refusing mandamus absolute. Judgment affirmed.