Laurens County v. Keen

• Decision Date: 07 February 1958
• Docket Number: Nos. 19944,19964,s. 19944
• Citation: 102 S.E.2d 697,214 Ga. 32
• Parties: LAURENS COUNTY et al. v. T. C. KEEN, Sr. T. C. KEEN, Sr. v. LAURENS COUNTY et al.
• Court: Georgia Supreme Court

Page 697

102 S.E.2d 697

214 Ga. 32

LAURENS COUNTY et al. v. T. C. KEEN, Sr.

T. C. KEEN, Sr. v. LAURENS COUNTY et al.

Nos. 19944, 19964.

Supreme Court of Georgia.

Feb. 7, 1958.

Rehearing Denied March 7, and March 10, 1958.

Syllabus by the Court

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90% of the net tax digest, for the years 1955 and 1956, and all subsequent years until the act of 1955 is modified or repealed in the manner provided by law.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.

H. Dale Thompson, R. M. Daley, Dublin, for plaintiff in error.

Carl K. Nelson, Nelson & Nelson, Dublin, for defendant in error.

HEAD, Justice.

1. Only those constitutional questions essential to the disposition of a case will be considered by this court. Armstrong v. Jones, 34 Ga. 309; McGill v. Osborne, 131 Ga. 541, 62 S.E. 811; Georgia Power Co. v. City of Decatur, 173 Ga. 219, 220, 159 S.E. 863; Sumter County v. Allen, 193 Ga. 171, 173, 17 S.E.2d 567. In the present case, the plaintiff in his first and second amendments attacks the constitutionality of the act consolidating the offices of Tax Receiver and Tax Collector in Laurens County (Ga.L.1952, pp. 2327-2334). The questions made as to the validity of this act must be considered, since the case can not otherwise be determined.

In his first amendment, the plaintiff alleges that the act creating the office of Tax Commissioner for Laurens County is unconstitutional, null, and void, in that it contravenes and violates the Constitution, Article I, Section IV, Paragraph I (Code, Ann. § 2-401), which provides: 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.' It is contended that the act creating the office of Tax Commissioner for Laurens County is a special law in direct conflict with stated provisions of the general law of this State.

'The object of construction, as applied to a written constitution, is to give effect to the intention of the people in adopting it, * * *' Wellborn v. Estes, 70 Ga. 390; Park v. Candler, 114 Ga. 466, 40 S.E. 523. In the present case, the constitutional provision cited and relied upon by the plaintiff must be construed in connection with Article XI, Section I, Paragraph VI (Code, Ann. § 2-7806), which provides that the General Assembly 'may consolidate the offices of Tax Receiver and Tax Collector in the office of Tax Commissioner, and may fix his compensation, without respect to uniformity.' It must also be construed in connection with Article XI, Section II, Paragraph II (Code, Ann. § 2-7902) which provides: 'County officers may be on a fee basis, salary basis, or fee basis supplemented by salary, in such manner as may be directed by law.'

Construing the three above cited provisions of the Constitution together, as they must be, it was the clear intent that the offices of tax receiver and tax collector in any county of this State might be consolidated, and the compensation of such office be fixed in such manner as might be provided by the General Assembly. In Houlihan v. Saussy, 206 Ga. 1, 55 S.E.2d 557, this court, in a unanimous decision, upheld the validity of an act amending an act placing the Tax Receiver, Tax Collector, and other county officers of Chatham County upon a salary. In that case it was alleged that the salary provision was in violation of the Constitution, Article I, Section IV, Paragraph I (Code, Ann. § 2-401). The ruling in Houlihan v. Saussy, supra, is controlling in the present case adversely to the contentions of the plaintiff. The other constitutional questions sought to be made in the first amendment to the petition are without merit, and require no elaboration.

2. In his second amendment the plaintiff asserted that the act creating the office of Tax Commissioner of Laurens County violates the Constitution, Article III, Section VII, Paragraph XV (Code, Ann. § 2-1915), which provides: 'No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author to the effect that said notice has been published as provided by law.'

The act creating the office of the Tax Commissioner of Laurens County (Ga.L.1952, pp. 2327-2334) contains a copy of the published notice of intention to introduce the legislation in the General Assembly, and following immediately thereafter is the form of an unexecuted affidavit by the authors of the bill, wherein it is recited that the required notice was published on Saturday, December 9, 1951; Saturday, January 5, 1952; and Saturday, January 12, 1952. Following this, is a certification by the publisher of the official organ of Laurens County that the attached copy of notice to introduce local legislation was published on December 29, 1951, January 5, 1952, and January 12, 1952.

The plaintiff relies upon Gay v. Laurens County, 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 fact, 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 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, supra. Section 7 of the act creating the office of Tax Commissioner for Laurens County is, therefore, not invalid for any reason alleged by the plaintiff.

4. In his original petition, the plaintiff alleges that, on May 6, 1952, the Board of Commissioners of Roads and Revenues adopted a resolution authorizing the plaintiff to receive commissions of 10% on all taxes collected in excess of...