Morgan v. Rust

• Decision Date: 03 March 1897
• Citation: 28 S.E. 419,100 Ga. 346
• Parties: MORGAN v. RUST et al.
• Court: Georgia Supreme Court

28 S.E. 419

100 Ga. 346

MORGAN v. RUST et al.

Supreme Court of Georgia

March 3, 1897

Syllabus by the Court.

Notwithstanding the intimation in Dotterer v. Bowe, 11 S.E. 896, 84 Ga. 769, to the effect that one who held an unpaid claim against a county, which was not for official fees or salary might, under certain circumstances, be compelled to assign such claim to his own creditor, the better opinion seems to be that, if the debt due by the county was for public work payment by it to its creditor should not be thus prevented. The same public policy which exempts a county from the process of garnishment forbids that it should in any manner be interfered with in settling for necessary public work even after the same has been completed. To hold otherwise would at least tend to hamper counties in making contracts for services beneficial to the public.

Error from superior court, Fulton county. J. H. Lumpkin, Judge.

Action by A. P. Morgan against R. S. Rust and others to subject assets to plaintiff's judgment. From a judgment for defendants, plaintiff brings error. Affirmed.

Maddox & Terrell, for plaintiff in error.

B. H. & C. D. Hill and L. Z. Rosser, for defendants in error.

FISH J.

In this case the plaintiff filed his petition in the superior court against Rust and the county of Fulton, alleging that he was a judgment creditor of Rust; that Rust was insolvent; that the county of Fulton owed Rust $500 "for services rendered said county as an expert accountant to examine the books and accounts of the several county officials who handle and manage the finances of the county"; that the payment of this sum of Rust had been recommended by the grand jury of said county; that the petitioner was wholly without remedy in law in the premises; and that the debt due by the county to Rust was not, under the law, exempt against the payment of the debt due the plaintiff. The plaintiff prayed that the county, through its board of county commissioners, be directed to pay the $500 which it owed Rust into the registry of the court; that said sum be adjudged to be subject to the plaintiff's execution, and be paid to him upon his judgment; that the county be enjoined from paying the money to Rust, and Rust be enjoined from disposing of his claim against the county, and from attempting to collect it. Further, that if the court should be of opinion that said sum could neither be reached by garnishment nor equitable petition, the court should, by proper order and decree, direct and require Rust to assign and transfer to the plaintiff his claim against the county. A temporary restraining order was granted, which was afterwards modified by providing that it should be revoked upon Rust's giving a bond to conform to such judgment as might be rendered on the hearing of the application for injunction. Subsequent to this, Rust gave such bond. By amendment to the petition the plaintiff alleged that the services rendered by Rust to the county had been fully performed, and that all that remained to be done was the approval by the county of Rust's claim, and the payment of the same. Process was prayed against both Rust and the county of Fulton. Rust filed a demurrer to this petition, upon the ground that on the facts, as alleged, the plaintiff was not entitled to the relief prayed for against him, nor against the county. Upon the hearing for the temporary injunction the demurer was sustained, and the injunction denied, to which ruling the plaintiff excepted.

There is a regular system provided by law for the levying of county taxes and the payment of county debts. If, upon the legal ascertainment, in a trial of a case of this character, that a county is indebted in a given sum to the debtor of the plaintiff in the suit, it can be, by the mandate of the court, compelled to at once pay that sum into the registry of the court, then a county may be compelled, by the order of the court, to disregard this system in the payment of its debts. Sections 397 and 404 of the Political Code specify for what purposes county taxes shall be assessed. Section 398 thereof provides that, "when debts have accumulated against the county so that 100 per cent. on the state tax, or the amount specially allowed by local law, cannot pay the current expenses of the county and the debt in one year, they shall be paid off as rapidly as possible, at least 25 per cent. every year." Section 405 provides that, "as soon as the county tax is assessed for the year, it shall be done by order of such ordinaries and entered on their minutes, which must specify the per cent. levied for each specific purpose." And where an extra tax is levied the order should specify the object and purposes for which it is levied. Barlow v. Ordinary of Sumter Co., 47 Ga 639. Section 407 says that "taxes raised for educational purposes, or the support of the poor, or any other specific purpose, must be used for such purposes, or the support of the poor, or any other specific purpose, must be used for such purposes, respectively, and none other." Section 361 provides that "the ordinaries must admit all claims against their respective counties, and every claim, or such part thereof as may be allowed, must be registered, and he or his clerk must give the claimant an order on the treasurer for the same, and in the order he shall specifically designate upon what particular fund such order is drawn, and out of which payment is to be made." Section 463 provides the order in which the county treasurer shall pay the debts of the county. Section 465 declares that, "if any person holding county orders shall fail to present them by the first of December of each year to the county treasurer for payment, they shall be postponed to all orders which were so presented and not paid for want of funds." These provisions of the Code are "of great importance, and ordinaries and treasurers who neglect to conform to this salutary law are greatly to blame." Mitchell v. Speer, 39 Ga. 56, 59. In the case of Dotterer v. Bowe, 84 Ga. 769, 11 S.E. 896, this court held that: "Without express authority by statute, a county is not subject to garnishment. To imply such authority is contrary to public policy." In delivering the opinion of the court in that case, Blanford, J., said: "We think the system provided by law for the payment of claims against counties must be adopted in all cases. We do not think that this system can be preserved by allowing counties to be garnished." If this system cannot be preserved by allowing counties to be garnished, most assuredly it cannot be preserved if a county, upon such averments as are contained in this petition, can be compelled by the court to pay money due by it to one of its creditors into the registry of the court. This would be equivalent to compelling a county to pay a debt held against it regardless of the class of the claim, the condition of the fund from which it ought legally to be paid, and the order of payment of county indebtedness, as provided by law. This cannot be done by mandamus. Mitchell v. Speer, supra. "A county treasurer's authority and duty are governed by law, and he cannot be made to diverge from his rightful official course of action by court orders at the instigation of litigants, in the absence of statutory authorization, and to the determent of the public welfare, any more than a state officer could thus be turned from the line of his public duty." Wap. Attachm. (2d Ed.) § 433. The judge of the superior court has no more authority to disregard the system established by law for the payment of claims against counties than the ordinary, the county commissioners, or the county treasurer. The law has placed the responsibility for the carrying out of this system upon the respective county officials charged with its enforcement and preservation, and the judge of the superior court has no authority, by a peremptory order, to interfere with it. If to this view of the case it should be suggested that the court need not pass such an order as is asked for in this case until it has judicially ascertained, by a trial of the case, that the county can be compelled to pay the money into court without affecting or disarranging the system provided by law for the payment of county debts, a sufficient reply, in the present case, would be that there is no allegation of this character in the petition, nor even a suggestion or intimation to this effect, but the petition simply prays that the county be directed to pay the money due by it to Rust into the registry of the court. But suppose the petition called upon the county to show cause why it should not pay the sum which the plaintiff claims it owes Rust into the registry of the court. Then all the considerations affecting public policy which in cases of attempted garnishment exempt a county from being "burdened with care and attention respecting suits in which the public, as such, has no interest" (Born v. Williams, 81 Ga. 798, 7 S.E. 868), would apply to a case of this character. In Holt v. Experience, 26 Ga. 113, and again in McLellan v. Young, 54 Ga. 399, this court decided that a municipal corporation is not liable to be garnished for the salaries of its officers. And in Leake v. Lacey, 95 Ga. 747, 22 S.E. 655, it was decided that it is not subject to be garnished for money due by it to a contractor for constructing public work, although such work had been fully completed before the garnishment was served. In the case in 54 Ga., McCay, J.,...