Mcalpin v. Chatham County
| Citation | 107 S.E. 74,26 Ga.App. 695 |
| Decision Date | 14 April 1921 |
| Docket Number | (Nos. 11796, 11797.) |
| Parties | McALPIN v. CHATHAM COUNTY. CHATHAM COUNTY v. McALPIN. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
By section 3101 of the Civil Code of 1910, which provides that "the fees of the ordinaries of the several counties of this state, for making out commissions of lunacy and all other services connected therewith, shall be five dollars and no more, " the fixed amount of costs thus given the ordinaries in such a proceeding must be held to include their compensation for all services necessary or incidental thereto, including the swearing of the commissioners, when such act is in fact performed by the ordinary.
The fact that erroneous charges for such an additional item of cost were made in good faith by the mutual mistake of the ordinary and the county commissioners, and that such erroneous items were paid to the ordinary on warrants drawn by the county commissioners, would not prevent the county from bringing a suit for their recovery, within the four-year period of limitation.
(Additional Syllabus by Editorial Staff.)
Error from Superior Court, Chatham County; P. W. Meldrim, Judge.
Action by Chatham County against Henry McAlpin. Judgment for plaintiff, defendant brings error, and plaintiff tiles a cross-bill of exceptions. Affirmed on both bills of exceptions.
R. R. Richards and Sanson & Sanson, all of Savannah, for plaintiff in error.
Geo. W. Owens, of Savannah, for defendant in error.
JENKINS, P.J. [3-5] 1. Where a state or county officer charges an item of costs, he must always show authority of the law so to do; and in a legal proceeding against him for the recovery of an alleged illegal charge (as well as in a proceeding by him to enforce collection), the burden rests upon him to show that the charge is "expressly and specifically provided for by statute." Stamper v. State, 11 Ga. 043, 645; Leonard v. City of Eatonton, 126 Ga. 63, 64, 54 S. E. 963; Clark v. Clark, 137 Ga. 1S9 (2), 73 S. E. 15; Walton County v. Dean, 23 Ga. App. 97, 99, 97 S. E. 561. Acts providing for costs and salaries are to be strictly construed, and the measure of the compensation cannot be increased by construction, or in any indirect manner) beyond the amount specified by law. Walker v. Sheftall, 73 Ga. 806, 807 (a); Walton County v. Dean, 23 Ga. App. 97 (b), 99, 97 S. E. 561. A proper rule of construction would require that a statute which plainly fixes or limits the amount of cost legally chargeable in an entire proceeding of a specified character must be given effect, to the exclusion of other prior and more general statutes, which merely seek to fix and prescribe fees and items of cost for particular services rendered in connection with any sort of proceeding where the designated services might be legal and proper. 7 R. C. L. 781, 782.
It follows from what has been said that, since by the terms of section 3101 of the Civil Code of 1910 it is expressly provided that:
"The fees of the ordinaries of the several counties of this state, for making out commissions of lunacy and all other services connected therewith, shall be five dollars and no more, "
the fixed amount of costs thus given the ordinaries in such a proceeding must be held to include their compensation for all services necessary or incident thereto, including the swearing of the commission, when such act is in fact performed by the ordinary. The fact that when the fixed compensation of $5 was provided by the act approved August 21, 1879 (Civil Code, § 3101), the ordinaries were not authorized to administer the oath to the commission, does not, in our opinion, warrant a contrary holding. Prior to the act approved November 11, 1889 (now part of section 3092 of the Civ. Code), none butjustices of the peace could administer this oath; and while by this legislation other officers, including ordinaries, were so empowered, the duty was not placed upon the ordinaries as such but they were merely authorized so to act. But there is nothing in the act of 18S9 (Civil Code, § 3092) which alters the emphatic language of the act of 1879 (Civil Code, § 3101), by which the fee to which the ordinary is entitled in such an entire proceeding was plainly fixed and limited. The contention of the ordinary is in fact necessarily based on the prior general statute, approved March 8, 1806 (Civil Code, § 4799), which authorizes ordinaries to receive the same fees for administering oaths as are allowed to justices of the peace. As has already been stated, however, and as was held in Walker v. Sheftall, supra, where the amount of cost has been plainly specified by law, it is not permissible to increase the amount by construction or in any indirect manner.
The conclusion we have thus arrived at would...
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MacNeill v. McElroy
...practice by him and his predecessor in office, where such charges occurred more than four years from the beginning of the action. The McAlpin case distinguished on the view that [the Cook case] was the exception to the general rule and expressly confined to the facts of that case, where it ......
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Cloud v. De Kalb County, 30260.
...the compensation cannot be increased by construction, or in any indirect manner, beyond the amount specified by law." McAlpin v. Chatham County, 26 Ga.App. 695, 107 S.E. 74, and cit. In the case of Eison v. Shirley, ordinary, 165 Ga. 374, 378, 141 S.E. 295, 297, the Supreme Court said: "Und......