DECIDED MAY 28, 1964.
Action on bond. Laurens Superior Court. Before Judge Ward.
Eugene Cook, Attorney General, William L. Harper, Assistant Attorney General, for plaintiff in error.
Jones Douglas, Paul J. Jones, Jr., Eric L. Jones, contra.
The statutory lien on the property of a tax commissioner created by the provisions of Code § 92-5510 and Code Ann. § 92-5708 covers only the obligations of such officer arising from his official duties as tax commissioner; and does not encompass motor vehicle fees collected by him in his separate capacity as tag agent for the State Revenue Commissioner.
DECIDED MAY 28, 1964.
This was a suit by the State to recover $16,470 from the defendant insurance company which had allegedly paid such sum to T. J. Hobbs, one of its policyholders, on a contract of fire insurance, with knowledge of the fact that the State had a statutory lien on the property of Mr. Hobbs which was insured by the defendant company. The petition alleged that T. J. Hobbs was the Tax Commissioner of Laurens County and was also tag agent for the purpose of accepting applications for registration of motor vehicles in that county; that Mr. Hobbs had collected certain motor vehicle license fees which he failed to turn over to the State Revenue Commissioner; that the State under the provisions of Code § 92-5510 and Code Ann. § 92-5708 had a statutory lien on all property of Mr. Hobbs; that this lien included certain improved real property which was insured by the defendant company under a contract of fire insurance; that the improvements on the insured property were destroyed by fire on May 15, 1962, and that the defendant company paid to Mr. Hobbs on May 23, 1962, approximately $16,000 under the contract of fire insurance; that the defendant company had knowledge of the State's lien on the property destroyed by fire and was negligent in paying said loss to Mr. Hobbs; and that as a result of paying said loss with knowledge of the State's lien, the State is entitled to recover from the defendant company an amount equal to the loss paid.
The trial court sustained the general demurrer of the defendant insurance company and the exception is to that judgment.
Code § 92-5510 provides: "The property of tax collectors and of their sureties, shall be bound, from the time the bonds are executed, for the payment of taxes collected and the discharge of their duties." Code Ann. § 92-5708 provides: "Liens for taxes, whether ad valorem, specific, or occupation, due the State, any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by law for valuation of the same in each year until such taxes are paid, and the property of tax collectors and their sureties from the time of giving bond until all taxes for which they are responsible shall be paid."
The first question presented in this case is whether the statutory lien, created by the above Code sections, on the property of the Tax Commissioner of Laurens County encompassed motor vehicle fees collected by the commissioner in his capacity as tag agent for the State Revenue Commissioner.
This court in Sanders v. U.S. Fidelity c. Co., 108 Ga. App. 849 ( 134 S.E.2d 831) stated: "When the tax commissioner acts as `Agent of the State Revenue Commissioner for the registration and licensing of motor vehicles in the county,' he acts in an entirely different capacity wholly unconnected with his duties as tax commissioner. Such duties are not imposed upon him by law, but under the very terms of the Act, he may accept or reject appointment as agent of the State Revenue Commissioner as he chooses. If he accepts the position, the moneys which he collects from the sale of automobile tags are collected by him as agent of the Commissioner under the provisions of the cited Act, and he is obligated to remit those moneys to the State Department of Revenue under the provisions of that Act and not because of any duty imposed upon him by law as tax commissioner." Accordingly, it was held that since the official bond of the tax commissioner covered his official duties and obligations as tax commissioner and no other obligations, the surety on the tax commissioner's official bond was not liable for alleged defalcations of the tax commissioner with respect to his position as tag agent for the State Revenue Commissioner.
Likewise, it is our opinion that the statutory lien created by Code § 92-5510 and Code Ann. § 92-5708, as clearly shown by the express provision of said Code sections, covers only the obligations of a tax commissioner arising from his official duties as tax commissioner; and would not therefore under the decision of this court in the above case encompass motor vehicle fees collected by the tax commissioner in his separate capacity as tag agent for the State Revenue Commissioner. See Burkett v. State, 198 Ga. 747 ( 32 S.E.2d 797). See also DeKalb County v. Broome, 215 Ga. 203 ( 109 S.E.2d 769), and Howell v. Muscogee County, 105 Ga. App. 515 ( 125 S.E.2d 139) in which the Supreme Court and this court held that fees earned by a sheriff as such motor vehicle tag agent of the Revenue Commissioner belong to him individually and are not compensation earned by him in his official capacity as sheriff.
The trial judge having correctly held that the statutory lien did not cover the motor vehicle fees involved in this case, it is unnecessary for this court to decide the correctness of his further ruling that the State of Georgia, not having been named as a lienholder in the contract of insurance between Hobbs and the defendant company, would not have been entitled to any of the proceeds of said policy if the statutory lien had been applicable.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.