LAURENS COUNTY et al. v. KEEN; and vice versa., 214 Ga. 32, 102 S.E.2.d 697 (1958)
Linked as:
Text
Carl K. Nelson, Nelson & Nelson, contra.H. Dale Thompson, R. A. Daley, for plaintiffs in error.
1-3. The trial court did not err in sustaining the demurrers to the plaintiff's first and second amendments, attacking the constitutionality of the act creating the office of Tax Commissioner for Laurens County, and section 7 of that act.
4. The plaintiff is not entitled to the special commissions claimed by him for the years 1953 and 1954.
5. The County of Laurens may not be estopped by the acts of any officer in the exercise of a power not conferred.
6. Under an act of the General Assembly approved February 11, 1955 (Ga. L. 1955, pp. 176-179), the Tax Commissioner of Laurens County is entitled to 10% commissions on all taxes collected in excess of 90% of the net tax digest, for the years 1955 and 1956, and all subsequent years until the act of 1955 is modified or repealed in the manner provided by law.
7. The execution issued against the plaintiff being in an amount in excess of that due by him, the trial court did not err in overruling the demurrers to the original petition, as amplified by his third amendment.
T. C. Keen, Sr., filed his petition for injunction and other relief against the Board of Commissioners of Roads and Revenues and the Sheriff of Laurens County, and against the county. It was alleged that an execution issued by the Board of Commissioners of Roads and Revenues for the collection of certain commissions retained by him as Tax Commissioner, was issued illegally.
The defendants' general and special demurrers to the original petition, and to the third amendment, were overruled, and the defendants, Laurens County and the county commissioners, except to this judgment. The defendants' general demurrers to the first and second amendments to the petition, attacking the constitutionality of the act creating the office of Tax Commissioner of Laurens County, and especially section 7 of that act, providing that fees formerly received by the Tax Receiver and Tax Collector of Laurens County should be paid into the treasury of the county, were sustained, and by cross-bill of exceptions the plaintiff excepts to this judgment.
The issues made by the petition and demurrers will appear in the opinion. The parties will be referred to as they appeared in the trial court.
1. Only those constitutional questions essential to the disposition of a case will be considered by this court. Armstrong v. Jones, 213 Ga. 518 (100 S. E. 2d 271), wherein it was held that a publication on December 9, 1951, was on Sunday, and not in compliance with the requirements of the Constitution. The case of Gay v. Laurens County is not in point on its facts, and is not controlling, in the present case. In the Gay case there was no proper certification by the publisher. There was an executed affidavit by the authors of the bill. The constitutional provision requires a certification by the publisher, or in lieu thereof, an affidavit by the authors of the bill. In the present case, we have a valid certification by the publisher, which can not be held invalid solely on the basis of a writing in the form of an affidavit which was not executed by an officer authorized to administer an oath. In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with the valid certification by the publisher of the official organ of Laurens County.
3. Section 7 of the act (Ga. L. 1952, p. 2330) creating the office of Tax Commissioner of Laurens County is as follows: "All fees, costs, commissions, and other compensation now or hereafter allowed by law to the Tax Receiver and Tax Collector of Laurens County, for receiving and collecting tax for the State and political subdivisions thereof, shall be collected by the said tax commissioner, and all such funds so collected shall be paid into the treasury of the County of Laurens as county funds, subject to disbursement under orders of the commissioners of roads and revenues." It is contended that this section is unconstitutional, null, and void, in that it is in conflict with certain provisions of the general law. It is contended that the act of 1951 (Ga. L. 1951, pp. 815-817) provides for certain special commissions to tax collectors and tax commissioners, and that section 7 of the act creating the office of Tax Commissioner for Laurens County is in conflict with this provision of the general law, and is unconstitutional, null, and void.
Section 7 of the act of 1952, requiring that costs, fees, and commissions then provided by law for the tax receiver and tax collector be paid into the treasury of Laurens County, is in accord with the constitutional authority to consolidate the offices of tax receiver and tax collector and to fix the compensation of the tax commissioner. The further provision of the Constitution, that county officers may be on a salary basis, a fee basis, or both, imposes no limitation on the General Assembly in fixing the compensation for the tax commissioner. See Houlihan v. Saussy,
Judgment affirmed on the main bill and cross-bill of exceptions. All the Justices concur.
1958
Sponsored links
