Opinion
39830.
DECIDED JANUARY 8, 1963.
Recovery of public funds. Putnam Superior Court. Before Judge Carpenter.
Elliott Davis, Joseph H. Davis, for plaintiff in error.
J. Clayton Hargrove, D. D. Veal, contra.
1. The term "net tax digest" referred to in Code Ann. § 92-5301, contemplates and means the total amount of taxes due on all taxable property included therein.
2. Where the compensation of a public official is fixed by the General Assembly such public official is without authority, by express agreement or otherwise, to fix a different compensation for such public office.
DECIDED JANUARY 8, 1963.
On February 13, 1962, the Board of Commissioners of Roads and Revenue of Putnam County issued an execution against Peter J. Rice, Tax Collector of Putnam County, Ga., seeking the recovery of $4,249.20, as principal and interest in the amount of $636.90 from May 1, 1961, to February 1, 1962, at the rate of 20% per annum and future interest from said date at said rate of interest, alleging that the said Rice had been adjudged to owe Putnam County those sums and on which amounts Rice was in default. On February 27, 1962, P. J. Rice, defendant in fi, fa., filed his affidavit of illegality to said execution; on March 30, 1962, the board of commissioners, plaintiff in fi. fa., filed its general and special demurrers to said affidavit of illegality; on July 30, 1962, the trial judge entered an order sustaining grounds 1, 2 and 7 of the demurrer filed by plaintiff in fi. fa. and dismissed the affidavit of illegality. The defendant in fi. fa. excepted to this ruling adverse to him, assigning it as error, and brings the case here for review.
1. The primary question for determination here is whether the Tax Collector of Putnam County is entitled, under Code Ann. § 92-5301, to commissions on funds paid by the United States of America to Putnam County, not as taxes, but in lieu of taxes. We think not. The term "net tax digest" referred to in Code Ann. § 92-5301, contemplates and means the total amount of taxes due on all taxable property included therein. It is admitted here that the funds on which commissions were paid to the Tax Collector of Putnam County were not taxes, but were funds paid to Putnam County by the United States of America in lieu of taxes. Accordingly, such amounts were not and could not, as contended by defendant in fi. fa., be included as a part of the net tax digest. Bruce v. County of Troup, 92 Ga. App. 786 ( 90 S.E.2d 60).
2. Defendant in fi. fa. contends in his affidavit of illegality that said commissions paid to him were legal, proper and approved by plaintiff in fi. fa. and their attorney and that they are now estopped to allege a default. "Where the compensation of a public official is fixed by the General Assembly such public official is without authority, by express agreement or otherwise, to fix a different compensation for such public office." Owens v. Floyd County, 96 Ga. App. 25 ( 99 S.E.2d 560). Accordingly, this contention of defendant in fi. fa. is without merit.
3. The plaintiff in fi. fa. seeks to recover interest at the rate of 20% per annum on the principal involved. However, Code § 89-833 provides that only 7% is legally recoverable (which the plaintiff in fi. fa. now concedes in its brief), and the affidavit of illegality was not subject to the first ground of demurrer for such reason. Therefore the trial court erred in dismissing the affidavit of illegality for this reason. However, in the event the execution is amended within 10 days from the receipt of the remittitur by the trial court to seek only the legal interest of 7% per annum the judgment of the lower court is affirmed, otherwise reversed.
Judgment affirmed on condition. Frankum and Jordan, JJ., concur.