Richmond County v. Richmond County Reformatory Institute

141 Ga. 457 | Ga. | 1914

Hill, J.

(After stating the foregoing facts.)

1. When this case was called for argument in this court, the plaintiff in error presented a petition to the court from the board of county commissioners of Richmond County, requesting leave to withdraw the writ of error. In the resolution adopted by the county commissioners, requesting the withdrawal of the writ, it was provided “that a reasonable compensation be paid Mr. Salem Dutcher, attorney for the county, for services thus far rendered by him in such suit, provided he acquiesces in such withdrawal.” In a letter addressed to the clerk of this court by the attorney of record named in the foregoing resolution, which letter is filed with the request to withdraw, after quoting the language of the above resolution, he says: “Having.a contingent fee in that case, in writing recorded on the minutes of the board, I decline to acquiesce; and respectfully notify you of that fact, which declination kindly file at once.” This, request to withdraw is controlled by the decision in the case of Walker v. Equitable Mortgage Company, 114 Ga. 682 (40 S. E. 1010), where it is held that “A plaintiff in error in this court can not withdraw a writ of error over the objection of his counsel, when it appears that the litigation is such that it would, if successful, result in a recovery of property on which counsel would have a lien for fees earned in the case.” The principle is the same where it appears that the fee of the attorney is contingent.

2. The plaintiff brought suit against the Richmond County Reformatory Institute, alleging, among other things, that the act of 1885 (Acts 1884-1885, p. 599) “incorporates” the defendant for certain specified purposes such as the “employment, instruction, and reformation of juvenile offenders,” etc. The above act is attacked as void, for many reasons alleged in the petition. "Without answering each of these- attacks, it is sufficient to say that the plaintiff can not bring suit against the corporation as such and attack collaterally its corporate existence. When a corporation is sued by its corporate name, its existence as such is admitted, and it can not be brought into court and made to answer the plaintiff’s allegations that it is not and never was a corporation. Lester v. Georgia &c. Ry. Co., 90 Ga. 802 (2), 804 (17 S. E. 113); Etowah Milling Co. v. Crenshaw, 116 Ga. 406 (2), 410 (42 S. E. 709).

3. It was alleged that the funds by means of which the Richmond County Reformatory Institute was established and maintained were derived from levies of taxes by the county officials assuming t'o act under the authority of the act of 1885 hereinbefore referred to; and it was the property for which these funds had been expended which the plaintiff sought to recover, basing its right thereto on the invalidity of the act in question, and also a construction of it if valid. If funds belonging to á county are illegally paid out by its officials, the county may bring suit to recover them. If from the general funds in the county treasury amounts are illegally paid to a corporation, and suit is brought against it to recover such funds, and nothing more is shown by the plaintiff, the defendant might not be able to keep the money illegally appropriated to it from such general fund, and defend by asserting that the county unlawfully collected a tax from the taxpayers which went into such general fund. The question of whether the tax was illegally collected from the taxpayers would be one between the taxpayers, and the county, and would probably not furnish a defense to a corporation to which such appropriations from the general fund had been made. If the taxes were paid directly by the taxpayers to the corporation, or through an agent, so that the amount collected did not become a part of the general funds of the county, and was not appropriated therefrom to the corporation, the rule above stated would not apply; but the question of the illegality of the tax would arise between the taxpayer .and the corporation to which, immediately -or through an agent, the tax was paid. But where a county files its proceeding against a corporation having charge of the county reformatory, seeking to recover from it funds paid to it, or the proceeds thereof, and in its petition alleges that such funds arose from illegal taxation, and therefore that the county never had any right or title to such funds, it shows on the face of its own pleading that it is not authorized to recover. It can only recover funds belonging to the county; and if it alleges that the funds used arose from an illegal source and in law never belonged to the county, it destroys its own case. If 'a county alleges, in legal effect, that the money which was delivered to the corporation arose from illegal taxation, and that it never belonged to the county, in ease of a recovery from the corporation what would become of the fund? In Truett v. Justices &c., 20 Ga. 102, it was held: “A tax originally assessed and collected, under an order . . , for one purpose, which is illegal and void, can not, for that reason, be directed to another purpose, which is valid.” The county not only alleges that it illegally collected the money, but, in seeking to have the act of 1885 declared void, it asks the court to adjudicate, in this proceeding, that it was illegally collected and consequently that it was never county funds. The county sets up that under the act of 1885 it collected from the taxpayers certain sums of money, and that it appropriated and paid the same, or equivalent sums, to the corporation. It attacks at once its right to collect the money and to pay it out to the corporation, both under the construction of the act, and by attacking the validity of the act. If the act should be declared void, it would destroy the authority of the county to collect the money by taxation, as well as the authority of its officials to pay it out to the corporation. If the act were not held to be void, but the contention of the plaintiff, that under a proper construction of it the county was only authorized to collect and pay to the corporation $1,000, and that all other collections of taxes for and payments of amounts to the corporation were entirely void, tbe sustained, then the same result above indicated would apply as well to all except the original $1,000, and as to that the collection and payment would be legal, or its recovery would be barred if the payment was not properly made. So that, in any event, the county occupies the position of at once attacking its own title to the funds and seeking to have it declared that it never lawfully had such funds, and at the same time seeking to recover them as funds of the county from the person to whom it, or its commissioner, paid the amounts thus unlawfully raised, or their equivalent, after having raised them expressly for the benefit of such person. The county sets up, in effect, that the corporation for which it collected, and to which it paid the money, has no title or right thereto, because it — the county —had no right to collect it, and therefore had no legal title or right to it. It follows that the action could not be maintained, and a general demurrer thereto was properly sustained. Other contentions need not be discussed.

Judgment affirmed.

All the Justices concur, except Evans, P. J., absent.