Opinion
29948.
DECIDED JULY 16, 1943.
Complaint; from Wilkinson County — Judge Edwards. October 7, 1942.
Victor Davidson, M. H. Blackshear, for plaintiff in error.
Alex S. Boone Jr., E. F. Taylor, G. B. Asbell, contra.
The judgment overruling the demurrers to the petition is affirmed, with direction.
DECIDED JULY 16, 1943.
The petition of Wilkinson County, as amended, shows the following: That the said defendant, T. Sanders, has been sheriff of said county for approximately ten years and is now the sheriff of said county; [The figures in brackets refer to the paragraph numbers of the petition.] [3] that as such sheriff the said defendant is entitled to receive certain fees and expenses to be paid to him by the county authorities out of the general funds in the county treasury derived from taxation; [4] that for the past four years the said sheriff has charged and collected out of said county, and county warrants having been issued to him and paid by the county depository, the sums of money hereinafter set out, which said charges were not a legal nor proper charge against the county, and which the county authorities had no authority to pay out of the county funds derived from taxation; [5] that from January 7, 1936, to February 7, 1939, the said defendant charged and collected, and the county authorities issued to him warrants on the county depository in payment of same, certain fees as turnkey fees for receiving and discharging prisoners at the county jail, which said fees were paid out of the general county funds derived from taxation, an itemized statement of such fees being hereto attached marked as "Exhibit A" and made a part of this petition, the sum collected by said defendant as turnkey costs being in a named total sum; [6] that the payment of said named total sum as turnkey fees was not a legal nor lawful charge against the county, and said defendant was not entitled to receive said amount from plaintiff; [7] that the said defendant charged and collected from petitioner, by warrants issued by the county authorities drawn on the county depository certain fees as insolvent criminal costs due to the said sheriff as his costs in criminal cases tried in the superior court of said county from December 1, 1936, to July 5, 1938, in a named total sum, an itemized statement of same being hereto attached, marked as "Exhibit B", and made a part of the petition; plaintiff shows that said charges were not a legal, nor proper, nor lawful charge against the county, and there is no law authorizing the said defendant to collect such charges out of the general county funds derived from taxation; [8] that from March 31, 1936, to October 4, 1938, the said sheriff charged and collected from petitioner a named total sum as fees for serving subpoenas before the grand jury, upon warrants issued to him by the county authorities upon the county depository, an itemized statement of same being hereto attached, marked as "Exhibit C", and made a part of this petition; that said payment to the defendant was illegal and unlawful, and that said charges were not a legal nor lawful charge against petitioner, and there is no law authorizing such charging and collecting out of the county by said defendant; [9] that the said sheriff charged and collected from petitioner, upon warrants drawn on the county depository by the county authorities, out of the general funds of said county derived from taxation the named sum as fees for attending coroner's inquests and impaneling coroner's juries, an itemized statement of same being hereto attached, marked as "Exhibit D", and made a part of this petition; that said charges were not a legal nor lawful charge against the county, and there is no law authorizing the said sheriff to collect same; [10] that the said sheriff charged and collected out of the general county funds derived from taxation, upon warrants drawn in his favor on the county depository, a named sum from January 7, 1936, to December 5, 1939, as payment of per diem for deputy sheriff at the sum of $3.50 per day, an itemized statement of same being hereto attached marked as "Exhibit E", and made a part of this petition; that said charges were not a proper, legal, nor lawful charge against the county, and there is no law authorizing the county authorities to pay the same; [11] that the said defendant charged and collected from said petitioner, out of the general county funds derived from taxation, upon warrants drawn on the county depository by the county authorities, the sum of $31 for attending lunacy trials, an itemized statement of same being hereto attached, marked as "Exhibit F", and made a part of this petition; that said charges were not legal nor lawful charges against the county, and there is no law authorizing the same; [Plaintiff amended the petition by striking paragraph 12]; [14] that the said defendant has collected by virtue of his office as sheriff of said county a named sum out of the fines paid arising out of cases tried before the ordinary of said county, on State Patrol cases, which said amount was over and above the ordinary's cost and the sheriff's cost, and which said sum the said defendant retains, and fails to pay the same to the plaintiff, an itemized statement of same being hereto attached marked as "Exhibit H", and made a part of this petition; that said amount was that amount in excess of the amount of the costs of the ordinary and sheriff, and that under the law, the same was to be paid into the county treasury, and that the retaining of same by said sheriff is illegal and unlawful. Plaintiff then prayed for process. The plaintiff, in response to demurrers by the defendant struck paragraph 12 of the petition and also struck certain items barred by the statute of limitations. Plaintiff then amended his petition by adding a paragraph setting forth other payments, for serving subpoenas to witnesses to appear before the grand jury, made within the statute of limitations, and certain over-payments for other items. The defendant then renewed all demurrers, both general and special, to the petition as amended; he also demurred generally on the ground that the petition as amended set forth no cause of action. The judge overruled all demurrers.
1. There were special demurrers to each of the following paragraphs of the petition: 5 and 6, which allege illegal payment of turnkeys; 7, which alleges illegal payment for serving subpoenas to appear before the grand jury; 9, which alleges illegal payments for attending certain inquests and impaneling juries; 10, which alleges illegal payments to defendant of certain sums for deputy sheriff; 11, which alleges illegal payments for attending lunacy trials.
The first of the grounds of the special demurrers to these paragraphs being that each of said paragraphs shows no right to the money therein set out and claimed, and does not show any legal indebtedness by the defendant to the plaintiff.
No actual fraud is alleged in the petition. Whether or not the illegal or erroneous charges for items of costs were made by the sheriff knowing they were illegal, or whether they were made in good faith by mutual mistake of the sheriff and county commissioners, or whether or not they were paid to the sheriff on warrants drawn by the commissioner, would not prevent the county from bringing suit for the recovery of costs illegally paid within the period of the statute of limitations. And where in a legal proceeding against the sheriff for the recovery of alleged illegal charges (as well as in a proceeding by him to enforce collection) the burden always rests upon the sheriff, or as for that matter, any other county or state officer, who charges items of cost, to show the authority of the law so to do. He must show that the charges are expressly and specifically provided for by statute. McAlpin v. Chatham County, 26 Ga. App. 695 ( 107 S.E. 74).
It can not be said in the instant case that on account of the absence of the purpose for which the cost items were paid under a judgment of the county commissioners there was a presumption that the items were for lawful purposes, for here the petition is not silent as to the alleged illegal items of cost but each cost charge is specifically itemized, and the purpose for which each item was drawn is shown and the purpose is alleged to be illegal. Franklin County v. Crow, 128 Ga. 458, 464 ( 57 S.E. 784). See, in this connection, Thompson v. Shurling, 184 Ga. 836 ( 193 S.E. 880). Thus under the rule stated, and the further rule that for the purposes of the demurrer, we must accept as true the allegations of the petition, we do not think that these paragraphs of the petition are subject to the first ground of the special demurrer. Bird v. Taliaferro County, 24 Ga. App. 271 ( 100 S.E. 721); Haralson County v. Golden, 104 Ga. 19 ( 30 S.E. 380).
The defendant contends, and raises the point by demurrer, that copies of the county warrants upon which a part of the action is based should be set out in the pleading. While the petition as now constituted sets out specifically the services separately, item by item, and the amount of the alleged illegal costs collected therefor, and further sets forth that these items of cost were paid under an itemized warrant of the county commissioners, giving the number of the warrant and the date upon which it was drawn on the county depository, yet it seems to us, that the plaintiff's cause of action as here alleged is for the recovery of illegal costs paid to the sheriff within the period of the statute of limitations, which the defendant, by his demurrers filed in this case, says is four years. If the cause of action were based upon written contracts, to wit: Warrants drawn by the commissioners on the county depository, the statute of limitations would be six years, instead of four. The warrants would of course be evidence in the case, but the plaintiff is not required to spread out his evidence in his petition. The petition plainly, fully, and distinctly sets forth a cause of action. We, therefore, do not think that it is necessary to attach a copy of the warrants.
2. In regard to the contention of the defendant in the general demurrer that the right to bring this suit "is in the ordinary rather than the commissioners," the general law of Georgia, as contained in the Code, § 23-701, provides: "The ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matters, to wit: 1. In directing and controlling all the property of the county as he may deem expedient according to law." But the constitution provides: Code, § 2-4601, that "The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties." This section should be construed in connection with section 2-8401 of the Code, which is also a constitutional provision and reads in part as follows: "Whatever tribunal, or officers, may hereafter be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the appointment of commissioners of roads and revenues in any county. . ." Commissioners of roads and revenues and revenues and county commissioners are terms used interchangeably in the constitution. Rhodes v. Jernigan, 155 Ga. 523 ( 117 S.E. 432)..
The act of 1933 (Ga. L. 1933, p. 777), creating a Board of Commissioners of Roads and Revenues of Wilkinson County, Georgia, provides, among other things, as follows: "Be it enacted by the General Assembly of Georgia and it is hereby enacted by the authority of same, that from and after the first day of March, 1933, there shall be established in and for the County of Wilkinson, a Board of Commissioners of Roads and Revenues, consisting of five members as follows: F. M. Fountain, P. M. Jackson, C. C. Johnson, James E. Hollimen, and G. M. Toney, . ." and in section 6 of said act it is further provided "That said board shall have exclusive jurisdiction, when sitting for county purposes, over all matters concerning county property, county taxes, general and special; in establishing and changing militia districts and election precincts; in examining, auditing, and allowing all claims against the county; in examining, auditing, and settling the accounts of all officers having the care, management, collection, keeping, and the disbursement of money belonging to the county or appropriated to its use and benefit; in making rules and regulations for the support of the poor of the county, in establishing, altering, and abolishing roads, bridges, and ferries; in carrying out any and all of its details and enforcement of the road laws." The contention of the plaintiff in this ground of the demurrer that it was the right of the ordinary rather than the board of commissioners to bring this action is not meritorious.
3. The demurrer to the petition on the ground that there was a misjoinder of causes of action in said petition is not meritorious. The Code, § 3-113, provides: "All claims arising ex contractu between the same parties may be joined in the same action. . ." Read v. Glynn County, 145 Ga. 881 (3) ( 90 S.E. 60); Tygart v. Albritton, 5 Ga. App. 412 ( 63 S.E. 521); Cason v. Tye, 9 Ga. App. 325 ( 71 S.E. 593).
4. Paragraph 14 of the petition is as follows: "That the said defendant has collected by virture of his office as sheriff of said county a named sum out of the fines paid arising out of cases tried before the ordinary of said county, on State Patrol cases, which said amount was over [and] above the ordinary's cost and the sheriff's cost, and which said sum the said defendant retains, and fails to pay the same to your petitioner, an itemized statement of same being hereto attached, marked as 'Exhibit H,' and made a part of this petition." Since the present case has been in this Court, the legislature has passed the following act: "The sheriffs of the several counties to this State be, and the same are hereby declared to be entitled to an arresting fee, as now provided by law, in all cases in which the sheriff or his lawful deputy arrests, assists in arresting or takes custody of any person charged with crime who has been apprehended by the State patrol and delivered to the sheriff or his lawful deputy. All such arresting fees heretofore paid to the sheriffs of the several counties of this State are hereby and herewith validated and effectuated, and the sheriffs of the several counties of this State be, and the same are hereby, declared to be entitled to fees for services herein enumerated which have been rendered since the passage of the act creating the Department of Public Safety for Georgia. If the sheriff be upon a salary the fee shall be paid into the County Treasury." This act was duly approved by the Governor and amends the act creating the Department of Public Safety for Georgia as it relates to fees already paid to the sheriff, and which the defendant contends would vitally affect his demurrer to paragraph 14 of the petition and to the petition as a whole. We are therefore affirming the judgment of the court below in overruling the demurrers, with the direction that the defendant be allowed to show, if he can, that the provisions of the act of 1943 are applicable to the proceedings in this case, and that the lower court have leave to take such cognizance of the act of 1943 as is proper, subject to review as provided by law.
Judgment affirmed, with direction. Broyles, C. J., and Gardner, J., concur.