In County of Bibb v. Winslett, 191 Ga. 860 (14 S.E.2d 108), this court held that the remedy as provided by the act of 1933 (Code § 89-818) was not an adequate remedy for contesting the county's claim, and that the trial court did not err in enjoining and restraining the county commissioners from proceeding under the citation.Summary of this case from Laurens County v. Keen
MARCH 15, 1941. ADHERED TO ON REHEARING, APRIL 3, 5, 1941.
Injunction. Before Judge Malcolm D. Jones. Bibb superior court. May 31, 1940.
James C. Estes and Ellsworth Hall Jr., for plaintiffs in error.
Jones, Jones Sparks and Harry S. Strozier, contra.
1. So much of the act of March 16, 1933 (Ga. L. 1933, pp. 78-97; Code, ch. 89-8) as purports to provide that county authorities may, after citation and hearing, render an order or judgment against a tax-collector and his surety, which shall be conclusive as to liability "unless an appeal be taken as herein provided," is nugatory and ineffectual because of indefiniteness or incompleteness, in that nowhere in the entire statute is any such appeal actually provided.
( a) Where a tax-collector and his surety were cited by county commissioners to appear before them on a day named, to make an accounting and settlement and to show cause why an execution should not be issued against them as to several sums of money stated in the citation, such tax-collector and his surety did not have any adequate legal remedy for contesting the county's claim.
( b) Such remedies as were provided by the act of 1933 were not applicable to a proceeding so instituted by citation.
( c) In such case, a suit in equity by the tax-collector and his surety, in which they prayed for injunction to restrain the county commissioners from proceeding under such citation, and for an accounting, was not subject to demurrer on the ground that it was not a proper remedy, or upon the ground that the action was premature.
2. The tax-collector having asserted a claim against the county for an amount in excess of the item admitted by him to be due, and having prayed for an accounting in reference to these matters, the petition was not subject to demurrer, under the rule that he who would have equity must do equity, for the reason that the sum so admitted to be due had not been paid or tendered and was not tendered in the suit as filed.
3. Under the officers' salary act of August 13, 1924 (Ga. L. 1924, pp. 90-97), a tax-collector to whom the act is applicable is required to pay into the county treasury all fees and commissions prescribed by law for tax-collectors, except that he may retain as his own all fees and commissions paid to or received by him as compensation from the State.
(a) The commissions allowed by law to tax-collectors for collecting taxes under the intangibles-tax act of February 16, 1938, can not be classified as "compensation from the State," except as related to the State's share of such taxes.
(b) The petition of the tax-collector and his surety was subject to demurrer in so far as it denied the county's claim as to commissions for collecting taxes under the intangibles-tax act.
4. A tax-collector in issuing an execution for taxes acts as an agent of the State and performs a State function; consequently the prescribed fee of fifty cents each for issuing tax executions should, when paid in the manner prescribed by law, be treated as compensation from the State, within the meaning of the officers' salary act, supra. Although in this case the compensation of the tax-collector was subject to such salary act, he was not accountable to the county for fees collected by him from taxpayers for issuing tax executions; and so much of the petition as related to these fees was not subject to demurrer upon any ground urged by the defendants.
5. Under the pleadings and the evidence the court did not err in granting an interlocutory injunction restraining the county commissioners and the individual members thereof from proceeding under the citation.
No. 13467. MARCH 15, 1941. ADHERED TO ON REHEARING, APRIL 3, 5, 1941.
The exceptions are to the overruling of general and special demurrers to the petition as amended, and to the grant of an interlocutory injunction. The suit arose out of a controversy between the board of commissioners of Bibb County and U. T. Winslett, the county tax-collector, concerning fees and commissions received and retained by such tax-collector, his right thereto depending in part on the salary act of August 13, 1924, sections 2, 7, and 8 of which are as follows:
Section 2: "That in all counties described in section 1 the fee system for compensating the officers herein named shall be abolished, except those fees that are paid by the State to the tax-collector and tax-receiver, and the officers herein named shall thereafter be paid salaries as herein provided instead of fees as under the present system, except for the fees to be paid by the State as will be hereinafter provided."
Section 7: "That all fees, costs, percentages, forfeitures, penalties, allowances, and all other perquisites of whatever kind which shall be allowed by law after January 1, 1926, to be received or collected for services rendered after January 1, 1926, by any officer herein named (except the fees received from the State by the tax-collector and tax-receiver) shall be received and collected by all of said officers and each of them, for the sole use of the county in which they are collected, and shall be held as public moneys belonging to said county and accounted for and paid over to said county on or before the tenth day of each month, at which time a detailed itemized statement shall be made by the officer, under oath, showing such collections and the sources from which collected, and the county treasurer, or other custodian or depository of county funds shall keep a separate account showing the source from which said funds were derived and paid and received."
Section 8: "The salaries of the various officials herein fixed shall be their sole compensation, and all fees accruing after January 1, 1926, are hereby abolished so far as the same constitutes the compensation of said officers, except that the tax-collector and tax-receiver shall continue to receive as part of their compensation the fees from the State as hereinbefore provided: but the same schedule of fees and costs prescribed under the existing laws shall remain for the purpose of ascertaining the sum or sums to be paid into the treasuries of the counties coming under this act." Ga. L. 1924, pp. 90-97.
The suit was instituted by Winslett and his surety, Fidelity Deposit Company of Maryland, against the County of Bibb, "the county board of commissioners of the county," and the five individuals who composed the board at the time. Among other things, the plaintiffs prayed at for injunction to restrain the defendants from proceeding further under a citation issued by the board, calling upon the tax-collector and his surety to appear on a day specified and make an accounting as to stated sums of money, and to show cause why an execution should not issue against them. It appeared from the petition that the sums referred to in the citation consisted of one item which the county claimed as an excess payment of commissions which it had made to the tax-collector in behalf of the State, and of other amounts withheld by the tax-collector on the theory that they were derived from fees and commissions paid by or received from the State, to which he was entitled under the salary act of 1924.
In issuing the citation, the county proceeded under the act of March 16, 1933, relating, among other things, to liability of State and county officers for public funds, and to procedure for recovery of such funds in case of default. Ga. L. 1933, pp. 78-97; Code, ch. 89-8. Section 9 of this act contained the following provisions:
"(a) Upon its coming to the attention of the official or authority having jurisdiction to cite for accounting, that a collecting officer or officer to hold public funds has been guilty of any default or breach of duty as to any tax, revenue, or public funds. . . it shall be the duty of such official or authority to cite such officer . . and/or their sureties to come before the official or authority having jurisdiction over the accounting, on a day named, to make an accounting or settlement and to show cause why an execution should not issue, if any default be found. . ." (§ 89-818.)
"(c) At the time and place fixed for the hearing, or at an adjournment or continuance thereof, the officer . . cited shall file under oath a statement of his . . accounts; and if such officer . . shall fail to submit such a statement, the official or county authority shall nevertheless proceed to state it from the best information at hand. After giving opportunity to the parties at interest to be heard, the official or county authority shall proceed to render a judgment or order in the nature of a judgment, in which, if no default be found, it shall be so stated, and if default be found, stating the amount of the same and ordering execution to issue therefor. If the officer whose accounts are under review is a tax-collector, the procedure in the judgment or order thereunder shall be in accordance with the provisions hereinafter specially made as to settling accounts of tax-collectors." (§ 89-820.)
"(d) Jurisdiction is hereby conferred upon the official or county authority having jurisdiction in the matter to issue subpoenas and to compel the attendance of witnesses and production of books and documents in behalf of any party; and if any person shall disobey any such subpoena or order to produce, the official or county authority shall certify the refusal to the judge of the superior court of the county where the hearing is had, who shall punish the offender as for contempt of the superior court." (§ 89-821.)
"(e) Unless an appeal be taken, as herein provided, such judgment or order shall be conclusive on the public bodies interested, and on the officer, bank, or depository, . . and upon the sureties on their bond, if cited and notified, as to the existence, amount, and extent of such liability." (§ 89-822.)
"(g) The official or county authority having jurisdiction to cite for accounting may, without issuing or serving citation, . . issue or cause to be issued an execution against any defaulting collecting officer . . and/or the sureties on the bonds of any of them, for default as to any of the matters as to which such officer . . or surety might be cited, and for the amount of the loss sustained by the public body or public bodies alleged in such execution to be sustained through such default; and such execution shall be prima facie evidence of the facts, including the amount of loss sustained, therein recited and shall be enforceable as an execution for said amount; provided, nevertheless, that as to such an execution its enforcement may be arrested by proceedings in equity, or, after levy, by affidavit of illegality in which the defendant in fi. fa. whose property had been levied on shall deny liability for the amount set out in such execution or some part thereof. The affidavit of illegality shall be returned by the levying officer to the superior court of the county in which the alleged defaulting officer resides. On the trial of the case, whether in equity or on affidavit of illegality, the burden of proof shall be on the official or authority issuing the execution. Any other person, corporation, or public body at interest may on his or its own motion, or on motion of either party to the cause, be made a party thereto, and be bound by the final judgment. Such an execution shall become final process against any defendant in execution named therein, who shall endorse thereon in writing his admission of the correctness of the same and an agreement that the same shall proceed against him as final process; but such admission shall not be binding on any one except the person or corporation signing the same." (§ 89-824.)
The petition as filed by the tax-collector and the surety company contained, after amendment, the following allegations: On April 16, 1940, in pursuance of a resolution adopted by the county board of commissioners of Bibb County, a citation was issued directing the plaintiffs to appear before the board at its office in the court-house on April 27, 1940, to make an accounting or settlement, and to show cause why execution should not issue against the plaintiffs as provided by law, with respect to the following items: (a) $655.99 illegally collected from Bibb County and included in a check issued by the county treasurer to Winslett, tax-collector, on April 19, 1934; (b) $537.91 illegally retained by the tax-collector for collecting 1938 taxes, and $781.42 illegally retained for collecting 1939 taxes. (c) Certain cost items accruing and collected by the tax-collector from the year 1926 to the year 1940, aggregating $33,119.50. The petition further alleged in effect that the citation was issued under the act of 1933 (Code § 89-817 et seq.), wherein it is provided that the judgment or order of the county authority, after hearing in pursuance of citation, shall be conclusive on all parties concerned, unless an appeal shall be taken "as herein provided," but that nowhere on this statute is any appeal provided for; and consequently the procedure by citation as instituted by the board does not adequately provide for a judicial determination of the issues involved, and is in violation of the due-process clauses of the State and Federal constitutions, to wit: article 1, section 1, paragraph 3, of the constitution of the State (Code, § 2-103), and the 5th and 14th amendments of the constitution of the United States (§§ 1-805, 1-815).
In order that the issues between the parties may be fully, adequately, and judicially determined, it is necessary that the superior court as a court of equity intervene and determine such issues. Petitioners deny that they are liable or indebted to Bibb County, with respect to any of such items, in any amount whatsoever, and on the contrary allege that the defendants are unlawfully withholding substantial sums of money to which "petitioner," the tax-collector, is entitled. The petition next dealt in consecutive order with the several items referred to in the citation, making in reference thereto the following allegations: Regarding the first item, described in the citation as $655.99 "illegally collected from Bibb County" on April 19, 1934, "petitioners deny that they are indebted in this amount, or in any other amount, but nevertheless with respect thereto show to the court the following facts."
Paragraph 10 of the petition was as follows: "On or about the date alleged Bibb County paid to petitioner, in conformity with previous rulings . . of the comptroller-general of the State of Georgia, certain fees and commissions to which petitioner was entitled as tax-collector on account of the collection of State taxes. In the year 1939, some five years later, . . the then comptroller-general of the State of Georgia revoked the rulings and authorizations of his predecessor in office, and called upon Bibb County for some amount of money, approximating the sum of $655.99, as having been improperly paid by Bibb County to petitioner under said former rulings and authorizations. It may be that Bibb County has responded to said call by paying said amount, but petitioner was at no time furnished a statement showing the amount thereof, and there has at no time prior to the issuance of the citation above referred to been any demand upon petitioner or upon petitioners for the payment thereof. Petitioners are not now able to verify the amount of said item, but upon verification of the same petitioner is ready, willing, and fully able to pay the same, notwithstanding any statutory bar to its enforcement, and would have paid the same at any timed upon presentation to him of a statement. There has at no time been any controversy or argument with reference to said item. The corporate surety alleges that as to it there is a conclusive adjudication adverse to the claims of the defendants, and the enforcement of said claim is barred, as will be hereafter shown."
Paragraph 11 alleged: "On the other hand, defendants are liable and indebted to petitioner for petitioner's fees on account of State taxes collected by defendants, and under an act of 1939 of the General Assembly of the State of Georgia, on account of county taxes collected by the defendants, in the amount of $9000, or other large amount, the exact amount being unknown to petitioners, because of the failure of defendants to supply petitioner with information as to the items or amounts of taxes so collected; and petitioners submit that in this proceeding there should be a full, fair, and complete accounting of said collections and of defendants' liability and indebtedness to petitioner therefor." To this paragraph 11 the following was added by amendment: "The taxes collected by the defendants herein referred to are certain taxes collected by the levy and sale by the sheriff of Bibb County of certain tax executions issued by petitioner as tax-collector, the property levied upon and sold being bid in and purchased at said tax sale by the County of Bibb, and said tax sales having been made at various and sundry times over a period of years. Although the county was the purchaser at said sales and received deeds to the property purchased, the county did not at the time of said sales ever pay over to the sheriff the amounts bid. Petitioner became entitled, by reason of said tax sales, to be paid the fees and commissions to which he was entitled, but no accounting has been made to petitioner for his fees and commissions. To determine the amount to which petitioner is entitled involves an accounting, and without such accounting petitioner can not itemize or specify what sales were made or what taxes were collected or the amount of the fees and commissions of which he is entitled." Still other allegations were as follows: "Prior to April 1, 1926, Winslett, as tax-collector of Bibb County, received his commission entirely on the fee or commission basis, in part from the State of Georgia and in part from Bibb County. By the act of August 13, 1924 (Ga. L. 1924, pp. 90-97). . effective January 1, 1926 the basis of compensation was materially changed, and since January 1, 1926, petitioner has received from Bibb County" stated sums as salary for services rendered to the county, and, as compensation for services rendered to the State, the fees received by him from the State for such services.
The second claim of the county, stated in the citation as the sums of $531.92 and $781.42 "illegally retained by the tax-collector as commissions for collecting taxes for the years 1938 and 1939," was treated in the petition as consisting of commission retained by the tax-collector under the intangibles-tax act of February 16, 1938, and in reference thereto substantially the following allegations were made: By said statute the General Assembly levied a tax on intangible property, which tax was levied directly as a State tax on assessments to be made by the State Revenue Commission, "said tax being assessed by the State body on returns made to said State body." The said intangibles-tax act further provides that the said tax at the rate fixed and on assessments made by the State Revenue Commission, shall be collected by the county tax-collectors "subject to general provisions of law as to remuneration of the collector." Ga. L. Ex. Sess. 1937-1938, pp. 156-172, section 10; Ga. Code Ann., 1939 Cumulative Part, § 92-144. Winslett, as tax-collector, claims that under a proper construction of the salary act of 1924 and of the intangibles-tax fact, he is lawfully entitled to receive and retain a commission, not only on the distributive share of the City of Macon, but also on the distributive share of the County of Bibb, both in addition to the commissions received by him on the State's share. Nevertheless, in pursuance of a ruling by the State Department of Revenue, he as such tax-collector has heretofore remitted and paid over to Bibb County the commissions received by him on the county's distributive share, and has retained commissions only upon the shares of the State of Georgia and the City of Macon. All of the commissions accruing to petitioner for collection of taxes under the intangibles-tax law are fees "received from the State of Georgia," to which he is lawfully entitled under the act of the 1924. While petitioner was willing to comply with the advice of the State department as to commissions on the distributive share of Bibb County, and did comply therewith, yet since the defendants have denied to petitioner the right to retain any part of such commissions, he now alleges and asserts that the defendants are liable and indebted to him for the commissions on such intangibles tax which he has collected and paid over to the treasurer of Bibb County, in the following amounts. $601.05 for the year 1938, $539.91 for the year 1939; and the liability of the defendants for these amounts should be included in the accounting herein prayed for.
Concerning the third item, in which the citation referred to certain costs collected by the tax-collector for the years 1926 to 1940, amounting to $33,119.50, the petition made substantially the following allegations: Petitioners are informed and understand that the amount thus claimed represents the tax-collector's costs for issuing tax-executions. Petitioners admit that the tax-collector received and retained, throughout the entire period alleged, the sum of fifty cents as the tax-collector's fee for each and every tax execution issued during such period. They further admit that the total amount of the fees so collected approximates the sum stated in the citation. This, however, is a fee prescribed by law for the performance of a duty imposed upon the tax-collector as an agent for the State, and it is therefore a fee received by the tax-collector from the State, and not from the county. Accordingly, petitioner has been and is entitled to retain this fee as compensation received from the State, and is under no duty to pay the sum derived from into the county treasury. In no event is it permissible for the defendants to make any claim as against the tax-collector on account of fees which accrued and were collected more than six years before the date of the citation, April 16, 1940, nor for them to make any claim against the surety company on account of any such fees as accrued and were collected three years prior to that date. In the accounting prayed for it should be determined which items were paid "before said date." By other allegations the plaintiffs pleaded a bar under the two-year limitation prescribed by the act of 1933 (Code, § 89-827), based on reports of the tax-collector and approval thereof by the county authorities for the year 1936 and all previous years. The plaintiff further alleged that on an accounting the defendants are indebted and liable to the tax-collector in the sum of $9000 or other large sum. "Petitioners have no adequate relief at law; and if the county board is permitted to proceed pursuant to the citation which it has issued, with a hearing on the 27th day of April, 1940, petitioners are in grave danger of a finding by said county board, the other and adverse party to the controversy involved in said citation, from which no appeal will lie, because no provision therefor has been made by law, but which will nevertheless have the force and effect of a conclusive and final judgment against petitioners, on which an execution will issue to be enforced against petitioners. Petitioner is entitled to have his accounts and accounting for taxes reviewed and settled by appropriate decree of this court, and, in view of the controversy with defendants, to a decree of this court, determining and adjudicating the proper lawful basis for his future accounts and accounting." The plaintiffs prayed for an accounting as well as for injunction and general relief.
The defendants jointly filed a general and special demurrer to the petition, and an amended or supplemental demurrer. The first six grounds of the demurrer attacked the petition as a whole, for various reasons. In paragraph 7 the defendants demurred to the petition as a whole, generally and specially, on the ground that it appears to be premature, in that it should be presumed that if there is no liability against the plaintiffs, the board of county commissioners will so determine on return of the citation described in the petition.
Paragraphs 8 to 23 of the demurrer challenged various paragraphs and parts of the petition for insufficiency either in law or equity, and for other reasons. The allegations of paragraph 10 of the petition and paragraph 11 as amended have been identified above by these numbers. Paragraph 11 of the demurrer was as follows: "Specially to paragraph 10 of said petition, upon the ground that the same is equivocal in that it appears from the allegations of said paragraph that the plaintiff, Winslett, knows that the item of six hundred fifty-five dollars and ninety-nine cents ($655.99) is correct, in that he is charged as a matter of law with knowledge of the amount of the legal commissions due him from said sale for State taxes; and defendants demur to so much of said paragraph as alleges that said Winslett is ready, willing, and fully able to pay the same, because such allegation is in conflict with the fact that he has not paid an indebtedness which he has legally admitted exists, and upon the further ground that no sufficient facts are alleged in said paragraph or elsewhere in said petition to excuse the said Winslett and his surety from paying the said sum with interest." Paragraph 12 of the demurrer, aimed only at original paragraph 11 of the petition, was as follows: "Specially to paragraph 11 of said petition, upon the ground that the same is uncertain and indefinite in that no itemized statement is included in said paragraph or elsewhere in said petition of any alleged indebtedness, nor is it alleged when or what amount of taxes the plaintiffs claim to have been collected by the defendants or whose taxes have been so collected; and for the further reason that there is no legal obligation upon the part of the defendants or any of them to pay any sum to the said Winslett on account of any taxes that may have been collected by the defendants." This ground of the demurrer was not changed, and no additional demurrer was filed, after the plaintiffs amended their paragraph 11.
The defendants also filed an answer, admitting some of the plaintiffs' allegations and denying others. They denied substantially all of the plaintiffs' legal conclusions, and asserted the liability of the plaintiffs as to each of the items referred to in the citation. They denied that the plaintiffs were entitled to any relief in a court of equity, and alleged fraud and concealment on the part of the tax-collector. They alleged that the tax-collector had paid into the treasury the fees for issuing tax fi. fas. from January 1, 1926, until March 1, 1929, but that from the latter date he had retained all fees of this class, and alleged that the county had not known of these illegal transactions until a short time before citation was issued. They further alleged that a contract was entered into between the county and the tax-collector in June, 1926, in which he agreed that all costs on ad valorem tax fi. fas. would be paid over to the county. The answer did not deny the plaintiffs' interpretation of the citation so far as related to the items claimed, but did take issue with substantially every legal contention as presented by the petition. At interlocutory hearing the judge overruled the demurrers on all grounds, and after the introduction of evidence on both sides granted an injunction as prayed. To these rulings the defendants excepted.
1. We may say at the outset that in the view which we take of the case it will not be necessary to decide all of the ten or more questions which have been stated by counsel for the plaintiffs in error, since an adjudication of some of them will be controlling upon others, or will render a decision thereon unnecessary. As shown in the preceding statement, the board of commissioners of Bibb County issued a citation calling upon U. T. Winslett as tax-collector, and his surety, Fidelity Deposit Company of Maryland, to appear before the board on a day specified, and make an accounting, and to show cause why an execution should not issue against them as provided by law for the several sums of money indicated in the citation. In so doing the county board followed the procedure provided for in section 9(a) of the act of 1933 (Code, § 89-818), and not the alternative procedure of issuing an execution ex parte as provided for by section 9(g), (Code § 89-824). The tax-collector and his surety did not answer the citation as directed, but went into the superior court with a suit for injunction, accounting, and other relief. In their petition the plaintiffs anticipated the specific nature of the various items referred to in the citation, and stated their contentions, legal and factual, concerning them. The defendants, Bibb County, the county board, and the individual members of the board, demurred to the petition both generally and specially. The demurrers were overruled on all grounds, and to this judgment as well as to a later judgment granting an interlocutory injunction the defendants excepted.
The first question for determination is whether the plaintiffs in suing in equity pursued the proper remedy. As against them, it is contended that they had an adequate remedy at law by answering the citation and thereafter filing a petition for the writ of certiorari in the event the issues were adjudged against them by the county board; also, that even if they would not have had the remedy of certiorari, they still should have abided the statutory remedy of injunction, or affidavit of illegality, as provided by section 9(g), to which reference has just been made. For brevity and convenience we may refer to the remedies provided by this section as remedies at law, although one of them is a suit for injunction which may be filed and prosecuted under circumstances therein stated. The question then may be expressed in the usual form: Did the plaintiffs have an adequate remedy at law?
Before considering the procedural questions, let us restate briefly the substantive controversy. According to the petition, the following items were to be drawn in question by the citation: (1) The sum of $655.99, claimed by the county as an overpayment which it had made to the tax-collector on April 19, 1934, in behalf of the State, for commissions on tax sales, where the county was the purchaser. (2) The total sum of $1318.33, which the tax-collector had retained as commissions on the share of taxes accruing to the City of Macon in the years 1938, under the intangibles-tax act of February 16, 1938, and which it was contended by the county the tax-collector should have paid into the county treasury under the salary act of 1924. (3) The sum of $33,119.50, representing a fee of fifty cents each on tax executions issued by the tax-collector during the years 1926 to 1940, inclusive; these fees having been retained by the tax-collector, and the contention of the county being that they also should have been paid into the county treasury. As to the first of these items, the petition raised no question as to original liability, and the respective contentions relating thereto, so far as decision thereon is necessary, may be stated and considered more logically in the second division of this opinion. The second and third items involve, among others, a construction of the salary act of 1924, the pertinent provisions of which have been quoted in the preceding statement, and the particular question is whether these items or either of them should be considered as "fees to be paid by the State" or "received from the State," which the tax-collector "should continue to receive" as part of his compensation under the salary act of 1924. As will be shown in the third and fourth divisions of this opinion, respectively, the claim presented by the county in the second item did not represent any compensation to which the tax-collector was entitled from the State; but the third item did relate to such compensation.
We will now consider the question of remedy. It is contended by the plaintiffs that the portions of the act of 1933 relating to procedure after citation, and purporting to confer on the county authorities jurisdiction to render in such case an order or judgment which shall be conclusive upon all parties at interest, "unless an appeal be taken as herein provided," are unconstitutional and void as violating the due-process clauses of the State and Federal constitutions, for the reasons that the statute did not anywhere actually provide for an appeal as it thus appeared would be provided therein. Whether or not the petition sufficiently designated any portion of this statute as unconstitutional, we are of the opinion that in so far as the act purports to provide for a conclusive determination by such board of county commissioners, it is too vague and indefinite to be enforceable, and that this latter question is embraced within the four corners of the petition. It is at least within the general insistence that the plaintiffs did not have an adequate remedy at law. Webb v. Newsom, 138 Ga. 342 ( 75 S.E. 106); Massachusetts Bonding Insurance Co., v. Board of Commissioners, 172 Ga. 409 ( 157 S.E. 459); Board of Commissioners v. Massachusetts Bonding Insurance Co., 175 Ga. 584 ( 165 S.E. 828). Some of the provision of the act of 1933 have been quoted in the foregoing statement. As will be seen, section 9(e) declares in effect that such judgment or order shall be conclusive unless an appeal is taken "as herein provided." This also means, of course, that the judgment or order will not be conclusive where such an appeal is taken. The statute, however, nowhere provides for the appeal to which it refers as such an important factor. We can not accept the view that the term "appeal" as thus employed refers to either of the remedies provided for in section 9(g), because in that section the General Assembly was dealing, not with a citation, but with an ex parte execution, and, as to that only, provided for arresting the process and securing a hearing "by proceedings in equity, or, after levy, by affidavit of illegality." Manifestly this was not intended to apply where a hearing has already been had in response to citation. Since the statute clearly indicates that the conclusiveness of any order or judgment of the county authorities will depend on whether an appeal is taken "as herein provided" and yet wholly fails to provide for such appeal, it is to this extent so indefinite and uncertain, or rather so incomplete, as to be nugatory and unenforceable. The question here is not whether an appeal is essential to due process, but is whether under the language and provisions of this statute the intention of the General Assembly may be discovered and enforced.
In the circumstances it must be held that even if the plaintiffs had responded to the citation and the county authorities had undertaken to render an order or judgment affecting liability, nothing whatever would have been adjudicated thereby. Consequently the right so to appear and be heard would not have constituted such a remedy at law as would exclude equitable jurisdiction; and since there would have been no judicial determination, there could have been no review by certiorari. As to invalidity of statutes for uncertain or incompleteness, see Cook v. State, 137 Ga. 486 (3) ( 73 S.E. 672); Pickering v. Campbell, 146 Ga. 636 ( 92 S.E. 74); Winslett v. Case-Fowler Lumber Co., 173 Ga. 539 ( 160 S.E. 384); Board of Tax-Assessors v. Catledge, 173 Ga. 656 ( 160 S.E. 909); 59 C. J. 601, § 160. But even if this statute might be construed to mean that an order or judgment of the commissioners in such case, though rendered after citation and hearing, could still be challenged by "proceedings in equity" or by affidavit of illegality under section 9(g), it would not necessarily follow that the plaintiffs should have been denied the right to sue in equity immediately on issuance of the citation. None of the provisions of the act of 1933 can be taken as an amendment or qualification of the Code, § 37-120, where it is declared that "a mere privilege to a party to sue at law, or the existence of a common-law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction." In view of this principle, the plaintiffs were not under the necessity of going through a trial before the county commissioners, as a condition precedent to seeking equitable relief, when the later trial in equity would involve only a de novo investigation of the same issues which had been heard and considered by the county commissioners. Any other view would require useless expenditure of time and effort, besides unnecessary delay and expense. Nor can the provisions as to hearing and accounting before the county commissioners be treated as establishing an administrative remedy to be first pursued; for clearly no such remedy was intended by the General Assembly. Cf. City Council of Augusta v. Loftis, 156 Ga. 77 ( 118 S.E. 666). We conclude that the petition was not subject to demurrer on the ground that the plaintiffs had an adequate remedy at law, or on the ground that the suit was premature.
2. Properly construed, the petition admits that the tax-collector himself is liable for the sum of $655.99 claimed by the county as an overpayment which it made to the tax-collector on April 19, 1934, in behalf of the State for commissions on tax sales. The tax-collector, it is alleged, is ready, willing, and able to pay this sum, except that he contends that the county is liable to him in a larger amount. The petition contained no other admission of liability by either the tax-collector or the surety company. Was the petition subject to demurrer on the ground that the item of $655.99 had not been paid or tendered to the county, and was not tendered in the suit as filed? It is insisted by the defendants that the petition should have been dismissed under the rule that he who would have equity must do equity. We do not think that the petition was subject to dismissal, under this rule, for the failure of the plaintiffs to pay or tender the sum stated. In paragraph 11 as amended, it was alleged that the county was due the tax-collector $9000 or other large sum for commissions on tax sales at which the county became the purchaser (Ga. L. 1937, pp. 446, 448; Newsom v. Dade County, 177 Ga. 612, 171 S.E. 145; Newsom v. Dade County, 180 Ga. 403, 179 S.E. 89), and in reference thereto the plaintiffs prayed for an accounting. In these circumstances the petition was not deficient because the amount admitted by the tax-collector to be due was neither paid nor tendered. This question calls for consideration of paragraphs 10 and 11 of the petition, and of an amendment to paragraph 11; also the demurrer to paragraph 10 of the petition (paragraph 11; of the demurrer), and to original paragraph 11 of the petition (paragraph 12 of the demurrer). (The parts of the petition and of the demurrers here mentioned are identified by reference to the numbered paragraphs in the preceding statement.) Whether or not the Code, § 92-8201, as amended by the act of 1937, supra, would require the county authorities to draw their warrant in favor of the tax-collector in payment of commissions on the State's share of the taxes until after the property "is redeemed in the manner provided by law or is resold by the county authorities," paragraph 11 as amended alleged in effect that the county was liable to the tax-collector for commissions "on account of State taxes collected by the defendants," and repeated the language here quoted several times. If the taxes could not be considered as collected by the county until after redemption or resale of the property, the paragraph as a whole, including the amendment, impliedly and sufficiently alleged such sale or redemption as against that part of the demurrer to original paragraph 11 asserting that "There is no legal obligation upon the part of the defendants or any of them to pay any sum to the said Winslett on account of any taxes that may have been collected by the defendants." That part of the demurrer which was special in nature and merely called for specification or particularity of items was cured by the amendment. If the taxes were in fact collected by the county authorities, as the allegations of the petition were sufficient to show as against the demurrer interposed, then it was the duty of the county authorities to pay to the tax-collector the amount of commissions due on the State's share. Such duty and the amount of commissions thus payable to the tax-collector, as compensation to a public officer, both being fixed and determined by law, it was not incumbent upon the tax-collector to present his claim within twelve months in order to prevent it from becoming barred under section 23-1602, supra. See, in this connection, Gamble v. Clark, 92 Ga. 695 ( 19 S.E. 54); Sammons v. Glascock County, 161 Ga. 893 (3) ( 131 S.E. 881); Tucker v. Shoemaker, 149 Ga. 250 ( 99 S.E. 865); Rogers v. Citizens Bank of Douglas, 149 Ga. 568 (5) ( 101 S.E. 674); Culberson v. Watkins, 156 Ga. 185 ( 119 S.E. 319); Freeney v. Pape, 185 Ga. 1 (4) ( 194 S.E. 515). The amount was not uncertain and contingent on varying acts of the officer, as in Baggett v. Barrow, 166 Ga. 700 (2a) ( 144 S.E. 251).
Whether or not it was the legal duty of the tax-collector as a public officer to refund the overpayment without waiting for an accounting, the question as presented is whether his failure to do so should result in a dismissal of the petition under the rule that he who would have equity must do equity. Considering the nature of the item in question and all of the allegations in reference thereto, we can not say as a matter of law that the petition is fatally defective as failing to show a willingness on the part of the plaintiffs to do equity with respect to the item in controversy. So it must also be held that paragraph 10 of the petition, in which the tax-collector admitted liability for this item, was not subject to demurrer for the reasons urged. See Code, § 37-307; Pope v. Thompson, 157 Ga. 891 (2) ( 122 S.E. 604). On the question of tender, the defendants rely upon Snell v. Spalding Foundry Co., 180 Ga. 582 (2) ( 180 S.E. 218), and other decisions. So far as that particular decision is concerned, it was not concurred in by all the Justices, and was criticized in Zugar v. Scarbrough, 186 Ga. 310 ( 197 S.E. 854). On further reflection, we are of the opinion that so much of it as relates to the question here under discussion is unsound and should not be followed. The ruling which we now make is deemed to accord with the other decisions relied on by counsel for the defendants. As to the particular item under discussion, the surety company invoked the three-year limitation provision of section 11 of the action of 1933 (Ga. L. 1933, pp. 78, 93; Code, § 89-832). It is insisted by the defendants that the company could not as a plaintiff in equity defeat this claim by relying upon the statute of limitations. In view of what has been said above, we need not pass upon this contention; although it may be stated in this connection that a somewhat similar contention was sustained by this court in Interstate Bond Co. v. Cullars, 189 Ga. 283, 290 ( 5 S.E.2d 756). In that case, however, the ruling was made as against a party who was seeking the equitable relief of cancellation, which may or may not afford a basis for a distinction. In United States Fidelity Guaranty Co. v. Toombs County, 187 Ga. 544 (6) ( 1 S.E.2d 411), it was held that under the Code, § 89-832, a surety on an officer's bond had the right to plead, as a reason why an execution should not proceed against it, that the cause of action occurred more than three years before the date of such execution. But as to that case it may be observed that the surety was merely following the procedure expressly prescribed by the act of 1933; an execution having been issued, whereas here there was only a citation. As to application of the equitable maxim in such case, see 21 C. J. 176, § 153. These latter remarks are made only for the purpose of calling attention to certain features of the two cases last mentioned, and are not intended as an expression of opinion, or even as an intimation, as to whether, if the present petition had not asserted a counter claim and prayed for an accounting, the surety could have avoided the necessity of tender by pleading the statute of limitations, the suit having invoked ordinary equitable jurisdiction and not having been brought under the express provisions of a statute.
For the reasons stated above, the petition was not subject to the demurrer for failure of either plaintiff to do equity. In this view we merely assume, without deciding, that failure of the tax-collector to refund an overpayment of commissions made to him by the county would constitute a breach of his bond for which the surety would be liable, decision on such being unnecessary. In reference thereto, see Board of Education of Miller County v. Fudge, 4 Ga. App. 637 ( 62 S.E. 154); Maryland Casualty Co. v. Salmon, 45 Ga. App. 28 ( 163 S.E. 285).
3. Coming now to the real merits of the controversy, we have before us two matters about which the parties assert opposite legal conclusions. In this connection we will consider first the item of $1318.33 which the tax-collector retained and still claims as commissions on the share of the taxes accruing to the City of Macon in the years 1938 and 1939, under the intangibles-tax act. Ga. L. Ex. Sess. 1937, 1938, pp. 156-172, sec. 10; Code Ann., 1939, Cumulative Part, § 92-144. It is insisted that since this tax is levied directly by the General Assembly and is based on returns made to the State Revenue Commissioner and on assessments by him, it is a State Tax and the commissions allowed to the tax-collector for collecting the same should be classed as compensation paid by or received from the State within the meaning of the salary act of 1924. If this contention is correct, the tax-collector was not accountable for the sum here in question; otherwise he was accountable and should have paid the same into the county treasury. While it is true that the tax on intangibles is levied and collected in the manner stated, it does not follow that all of it should be classed as a State tax. The statute refers in several instances to the different shares, such as the State's share, the county's share, and so forth; and in section 11(e) we find the following characterization: "The tax levied in section 3 hereof [which is the tax here in question] shall be deemed to be levied by the participating taxing authorities in the proportion that the millage rate of each participating taxing authority bears to the aggregate millage rate of all the participating taxing authorities." (Italics ours.) Ga. L. Ex. Sess. 1937; 1938; Ga. Code Ann., 1939 Cumulative Part, § 92-151. So in providing for this tax the legislature at the same time effectually classified it, and by that classification only the State's share can be considered as a State tax. It necessarily follows that the commissions allowed to tax collectors for collecting other portions of the tax could not be treated as compensation from the State, and that under the salary act it was the duty of the tax-collector of Bibb County to pay such commissions into the county treasury, as other "public moneys belonging to said county." The plaintiffs' allegations in reference to commissions for collection of taxes under the intangibles-tax act as to shares other than the State's share were therefore insufficient in law, and to this extent the demurrers should have been sustained.
4. The power of a county tax-collector to issue an execution for taxes is a power delegated by the State as the sovereign, and so, in performing such act the tax-collector is exercising solely a State function; and this is true notwithstanding the act as thus performed under State authority may be done in part for the benefit of the county or its citizens. Consequently the tax-collector, in issuing a tax execution, acts as an agent of the State, and in the absence of other classification by the law-making body the prescribed fee for the service should be considered as a State fee, or as compensation from the State, within the meaning of the salary act. See Gladney v. Deavors, 11 Ga. 79, 81; Basset, v. Governor, 11 Ga. 207, 218. It is true that section 92-8002 declares that no tax-collector shall receive cost on such an execution unless the same shall be collected from the defendant. This, however, is a mere limitation on the State's liability, and does not serve to alter the legal classification. Where the fee for issuing an execution is paid by the defendant in execution, that is, by the taxpayers, it is in law paid to the State though the tax-collector as the State's agent, and is then retained by such agent under authority of law as compensation for his service. For analogies relating to attorney's fees, see Mohr-Weil Lumber Co. v. Russell, 109 Ga. 579 ( 34 S.E. 1005); Walden v. Walden, 171 Ga. 444 (2) ( 155 S.E. 919); Thomas v. Smith, 185 Ga. 243 (2) ( 194 S.E. 502); Carson v. Blair, 31 Ga. App. 60 ( 121 S.E. 517).
From what has been said, the tax-collector was entitled to retain as "compensation from the State" all of the fees which he collected from taxpayers for issuing tax executions, and the petition was meritorious in so far as it assailed the third item of the citation. The court properly overruled all grounds of demurrer relating to such part or parts of the petition as claimed for the tax-collector the right to the fees for issuing tax executions; nor was it error to overrule the grounds of general demurrer to the petition as a whole.
5. The defendants also assigned error upon the judgment granting an injunction. Under the pleadings and the evidence and the applicable law, the court did not err in granting such injunction.
Although we have held in the third division that the court erred in not sustaining the demurrer as to certain parts of the petition, this will not affect the order granting an interlocutory injunction, since the only purpose of the injunction was to restrain the defendants from proceeding under the citation. The judgment overruling the demurrer will be affirmed in part and reversed in part; but the judgment granting an interlocutory injunction will be affirmed in toto.
Judgment reversed in part and affirmed in part. All the Justices concur.