State v. Bell , 9 Ga. 334 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

The Legislature, in 1847, passed an Act to add a part of Stewart County to Marion; to point out the mode of electing commissioners to provide for the erection- of a county site; to dispose of the public buildings at Tazewell; to provide payment for the undertakers of the new court house; to levy an extra tax, and for other purposes.

The 7th section provides, “ That the Justices of the Inferior Court of Marion County shall appoint five commissioners, whose duty it shall be to ascertain the value of the town property in Tazewell, (the same to be fixed at the amountthe owners thereof placed upon it in the returns of their taxable property for the year 1847,) and then assess the amount of the depreciation of said property, on account of the removal of the county site, and the said commissioners were required to execute to the owners a certificate, declaring the damage thus sustained ; which certificate, it is enacted, shall become a debt against the County Treasury.” And it is further provided in the 12th section of the Act, That for the purpose of discharging the debt incurred by building the new court house, as well as to pay the owners of town property in Tazewell, that the Justices of the Inferior Court be allowed to levy an extra tax, not exceeding seventy-five per centum on the general tax, which, together with the fund arising from the sale of the public property at Tazewell, shall constitute a fund, to be first applied to the payment of the new court house, and for the payment of the damages sustained by the owners of property in Tazewell, ascertained as aforesaid.”

It is also provided by the Act, “ That the certificate shall be received in payment for any conrtact for the purchase of any lot or lots sold in the new county site, contemplated as aforesaid.” Pamphlet Laws, 1847, pp. 71, 73, 74.

In pursuance of this Act, Andrew Hood, Van Swearingen, Charles Womack, William Williams and William Hirst, were appointed commissioners by the Justices of the Inferior Court of Marion County; and the three first being a majority of the whole number, after being duly sworn to perform faithfully the trust thus delegated to them, did, on the 24th day of June, 1848, proceed to ascertain the value of the property in the town of Tazewell, and to assess the amount of the depreciation of the same, by reason of the removal of the county site, when it was found that Charner B. Strange, the relator, owned town property of the value of $3127 87-J, and that the same was depreciated 57 per cent, by reason of said removal. Accordingly, the said commissioners, by virtue of the authority reposed in them by the law, as aforesaid, on the 30th day of June, 1848, certified that the said Charner B. Strange had been damnified $1782 88f, and that the said sum was a debt against the County Treasurer of Marion, and to be received in payment of any purchase made by him of property at the new site, and to be first paid out of the extra tax'to be levied as aforesaid, and from the money arising from the sale of public property at Tazewell, subject only to-the priority of payment on account of the new court house.

On the 7th of March, 1849, the certificate thus issued in terms of the Statute, was presented to the County Treasurer, and payment thereof demanded; but William A. Bell, the Treasurer, refused to pay the certificate, alleging as a reason, among other things, that the town property claimed by Strange, and upon which the damages were assessed, did not belong to him, and that he (Bell) had been notified by one William Wells not to pay the said damages, or any part thereof, to Strange or his assigns, as he (Wells) was the owner of said property.

A mandamus nisi having been granted by Judge Alexander against Bell, the Treasurer, he sustained the objections thus interposed by the Treasurer at the hearing, and to reverse this decision this writ of error is prosecuted.

[1.] Was it a good excuse in the mouth of Bell, the Treasurer, that he had been notified of the existence, real or pretended, of an outstanding title in Wells, or any body else, paramount to that of Strange, in whose favor the certificate had issued ?

We think not. The Treasurer is not at liberty to inquire into the truth or falsehood of the certificate. Neither is he or the County responsible for it. His duty is to obey the mandate of the commissioners; and having done this, the law casts the eegis of its protection over both him and the County. Nor is there any hardship in this, upon Mr. Wells or any one else claiming to be the true owner of the property upon which the assessment was made. Why did he not interplead, in order to bring the conflicting titles directly before the proper tribunals ? Why may he not do it still ? Suppose no proceeding is ever instituted for this purpose, is the fund to remain forever locked up in the vaults of the County Treasury ?

The judgment below must be reversed.