167 Ga. 45 | Ga. | 1928
(After stating the foregoing facts.)
The act of 1917 (Acts 1917, p. 283) was subsequent to the amendment (Ga. L. 1916, p. 24) of article 6, section 13, paragraph 2, of the constitution of 1877 (Code Supp. § 6534). That amendment declares that “the General Assembly shall have power, at any time, by a majority vote of each branch, to abolish the fees at present accruing to the office of solicitor-general in any particular judicial circuit, and in lieu thereof to prescribe a salary for such office, in addition to the salary prescribed in section 6533, and without regard to the uniformity of such salaries in the various circuits; and shall have the further power to determine what disposition shall be made of the fines, forfeitures, and fees accruing to the office of solicitor-general in any such judicial circuit where the fees are abolished.” This provision purports to authorize legislation for the abolition of fees payable to the solicitors-general of the several judicial circuits of the State, and to provide salaries for solicitors-general in such circuits in lieu of fees; but it does not. purport to abolish fees or provide salaries in lieu of fees for any other officers of court, and consequently does not purport to affect the right of sheriffs of the counties to the fees allowed them by law, nor does it purport to affect the power of the solicitors-general, as provided by law, to collect and disburse fees due to other officers of court, such as sheriffs or the like. The general law as embodied in the Penal Code (1910), § 798 (7) makes it the duty of the solicitor-general “to collect all moneys arising from fines and forfeited recognizances, all costs on crim-.
When the original petition is construed alone, it would appear that the county had paid out directly described funds to the sheriff; but when considered in the light of the amendment, the petition as amended should be construed as alleging that the sheriff had presented his bill for costs and fees to the solicitor-general, who paid the bill from money coming into his hands from fines and forfeitures. In these circumstances the county would not have acquired title to any part of the money that was paid to the sheriff. The solicitor-general was not the agent of the county, and did not act for the county in making the payment to the sheriff. If any of the payments were unlawful and the solicitor-general had been imposed upon by the sheriff, he would be the party to complain, and not the county. A different question would be presented if, before the fund had been distributed by the solicitor-general, the county had proceeded appropriately against the sheriff and the solicitor-general to have an apportionment of the money. The county can not, after the money has been paid over, maintain a suit against the sheriff alone as for money had and received.
This case differs from the case of Felton v. Watts, 162 Ga. 216 (134 S. E. 57), which involved the fees of a solicitor-general.
The judge did not err in overruling the exceptions of law to the auditor’s finding, and in rendering final judgment for the defendant.
Judgment affirmed.