Howell v. Muscogee County , 105 Ga. App. 515 ( 1962 )

On Motion roe Rehearing.

Counsel for the plaintiff in error contend in their motion for rehearing that the plaintiff in performing the duties set forth in the petition as agent of the State Revenue Commissioner was a public officer, entitled to the compensation fixed by the General Assembly for such duties, and therefore entitled to the benefit of the rule that no public officer can agree to accept less than the fees or salary allowed by law, the plaintiff relying on the cases of Johnson v. Brooks, 139 Ga. 787 (78 SE 37), and MacNeill v. Steele, 186 Ga. 792 (199 SE 99), in addition to Owens v. Floyd County, 96 Ga. App. 25, supra, for this contention.

Assuming, but not deciding, that such agent of the Revenue Commissioner is a “public officer,” within the purview of the cases cited above, the present case is not a dispute between the plaintiff as such agent and the Revenue Commissioner, who under law is the authority required to pay such agent (or “public official”) for his services, thereby distinguishing this case from those relied upon by the plaintiff.

There is no showing in the instant case that the plaintiff did not receive all the compensation from the Revenue Commissioner to which he was entitled as such agent, and it must be assumed that the plaintiff did receive said compensation. Accordingly, the principle of law relied upon by the plaintiff cannot be called to his assistance after he has been fully compensated by the proper authority as provided by law. What he then does with such compensation is purely a personal matter.

In the instant case, the plaintiff voluntarily entered into a contract with the defendant county concerning the disposition of the compensation which he received and which he seeks to recover in this suit. Under the circumstances in this case, the principle of law set forth in the Owens case, supra, does not avail the defendant.

Motion for rehearing denied.