Geer v. Dancer

Gilbert, J.

1. The resolution relieving the bondsmen of liability, and directing the payment by Miller County to the sureties the amounts paid by them, is void and of no effect, because it violates article 7, section 16, paragraph 1, of the constitution of Georgia (Civil Code (1910), § 6573), which declares that “The General Assembly shall not, by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation, or association.” The resolution was an attempt by the General Assembly to donate to the sureties funds of Miller County, which is beyond its constitutional power. Smith v. Fuller, 135 Ga. 271 (69 S. E. 177, Ann. Cas. 1912A, 70).

2. Moreover, as was said in the above-cited case, under the Georgia constitution, “the legislature has no power to authorize or require a county to levy a tax for any other purposes than those specified, or to use funds arising therefrom for other than such objects.” It would appear from the resolution that the County of Miller was directed to repay sums of money paid to the State as well as the county; but even if payments were only to refund sums paid to the county, such payments would necessarily be made from taxes already collected or to be collected, neither of which can be done.

3. In Smith v. Fuller, supra, there was no question as to the shortage. In this case the resolution recites that the jury trying the case against the accused tax-collector returned a verdict finding the said officer, “although in default the amount of said judgment for certain years, . . had for certain other years . . overpaid the county, so that the verdict of the jury amounted to finding that W. I. Moody as tax-collector was not indebted to the county in any sum.” This was controverted by a further recital that a judgment was rendered against the said officer, and that such judgment was affirmed by the Court of Appeals. Substantially the same was alleged in the answer. The judgment, until set aside according to law, is controlling on the. question of liability of the sureties.

4. Whether the resolution offends the constitution in other respects, as contended, need not be decided, as rulings made in the preceding head-notes are sufficient to show that the court erred in sustaining the demurrer to the plaintiff’s petition and in overruling the demurrer to the defendants’ answer. It necessarily follows that the court erred in refusing to grant an injunction.

Appeal and Error, 4 C. J. p. 650, n. 37.

Counties, 15 C. J. p. 522, n. 37 New; p. 582, n. 38; p. 592, n. 12 New; p. 633, n. 53 New.

No. 5541. March 17, 1927.

Judgment reversed.

All the Justices concur. J. A. Drake and W. I. Geer, for plaintiff. Pottle & Hof may er, N. L. Stapleton, and P. Z. Geer, for defendants.