Scruggs v. Dorminey Et Al., 129 Ga. App. 453, 199 S.E.2d 922 (1973)
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Summary
Judgment affirmed. Bell, C. J., Hall, P. J., Eberhardt, P. J., Deen, Quillian and Clark, JJ., concur. Pannell and Evans, JJ., dissent.
Summary
Judgment affirmed. Bell, C. J., Hall, P. J., Eberhardt, P. J., Deen, Quillian and Clark, JJ., concur. Pannell and Evans, JJ., dissent.
Text
Knight & Perry, W. D. Knight, for appellees.Kelley & Allen, Roy Benton Allen, for appellant.
On February 26, 1972, plaintiff Scruggs sued the tax commissioner and the board of commissioners of Berrien County and their sureties to recover commissions on various county taxes assessed and accrued during the plaintiff's 1957-1968 tenure of office as Tax Commissioner of Berrien County but collected by his successor in office, defendant Dorminey, and commissions on executions issued by the plaintiff and satisfied since his leaving office, plus interest, attorney fees, and costs.
The claim was based upon the provisions of the following general laws: Code 89-830 (Ga. L. 1933, pp. 78, 92); Code Ann. 92-5304 (Ga. L. 1937-38, Ex. Sess., pp. 297, 298; as amended, Ga. L. 1965, pp. 626, 627); Code 92-8002; Code Ann. 32-1106; and Code 92-3805. It is undisputed that the plaintiff's compensation during his tenure was a commission, as provided by a special law, i.e., Ga. L. 1931, pp. 390, 394; 1945, pp. 1078, 1079; 1953, Nov. Sess., pp. 2653, 2656, that compensation for the office was changed to a fixed salary alone by an amendment to the 1931 Act, i.e., Ga. L. 1968, pp. 3473, 3475 (effective the day after the plaintiff's last term of office terminated); and that another amendment to the 1931 Act, i.e., Ga. L. 1970, p. 3188, effective March 1, 1970, provided for compensation for the office by a fixed salary plus commissions allowed by Code Ann. 92-5304, supra.
The plaintiff appeals from the order, certified for immediate review, denying his motion for summary judgment. Held:
1. Code 89-830 (Ga. L. 1933, pp. 78,92) provides as follows: "In case a tax collector has been succeeded in office by another person, a list of the uncollected items of tax appearing in the account of the outgoing tax collector at the time of the accounting as stated above shall be furnished by the State Revenue Commissioner or the county authority to the tax collector then in office, and it shall thenceforth be his duty, as the taxes are collected, to pay to the outgoing tax collector one-half of the commisions and to retain for his services one-half the commissions to be calculated as if the amounts had been collected by the outgoing tax collector; and the outgoing tax collector shall no longer have the right or the duty to collect the taxes or to enforce the executions issued therefor, but all uncompleted duties in respect thereof shall pass to the successor. The outgoing tax collector and his sureties or his bond shall, upon his delivery to his successor of such books and papers in his office as relate to the uncollected taxes, be discharged of liability, except for defaults existing prior to that time." (Emphasis supplied.)
The above provision for the equal division of the "commissions," must be construed to apply only to commissions which are legally payable to the successor (incumbent) tax collector (commissioner here) at the time the taxes are collected. Otherwise, the effect of the statute would be to allow the incumbent official to retain commissions not authorized by law. Although this general statute has been in effect from 1933 to the present time, the incumbent Berrien County Tax Commissioner (defendant Dorminey) was not authorized to retain any commissions during the period of January 1, 1969 to March 1, 1970, because of the operation of the special statute, Ga. L. 1968, pp. 3473, 3475, providing for compensation by fixed salary with all collections to be paid into the county treasury. "Tax receivers and tax collectors have no vested rights in commissions for the collection of taxes until the taxes have been actually collected." Clements v. Peerless Woolen Mills,
With the enactment of Ga. L. 1970, p. 3188, however, the authority to retain commissions was restored to the office of Berrien County Tax Commissioner as of March 1, 1970, thereby making the provisions of the general statute, 89-830 (the effect of which, as to Berrien County, having been temporarily suspended by the 1968 special Act), again applicable to Berrien County as to commissions on taxes uncollected during the plaintiff's tenure of office but collected after March 1, 1970. Thus, the plaintiff states a valid claim for commissions legally accruing only after March 1, 1970.
2. The plaintiff is also entitled to commissions accruing since March 1, 1970, based upon the provisions of Code Ann. 32-1106 (Ga. L. 1919, pp. 288, 337; 1946, pp. 206, 211), for which the complaint, by amendment, prays. The 1923 cases of Bd. of Ed. of Decatur County v. Drake,
3. Although the parties have stipulated the amounts of commissions to which the plaintiff would be entitled, if at all, based upon all back taxes collected by the defendant incumbent tax commissioner since taking office on January 1, 1969, there is no stipulation or evidence from which the trial court could have determined the amount of commissions accruing after March 1, 1970, to one-half of which the plaintiff is entitled. Therefore, the trial judge properly denied the plaintiff's motion for summary judgment, leaving this factual issue to be determined by proper proof.
4. The provisions of Code 89-830 (Ga. L. 1933, pp. 78, 92) have no application to the provisions of Code 92-8002 (Ga. L. 1861, p. 80). The latter code section allows a tax collector a fee of 50 cents for issuing a tax execution and defers payment thereof until the same is paid by the defendant.
Winslett,
However, since it does not appear in the stipulation that the parties have agreed to the number of executions issued by plaintiff during his term of office which have been subsequently collected by his successor, issues of fact remain to be resolved.
5. Code 89-421 provides for the measure of damages in cases such as the one sub judice. The reasonable expenses of suit plus court costs are included in the statute. Reasonable expenses of suit may include attorney fees. What constitutes reasonable attorney fees is a question of fact that cannot be resolved on summary judgment.
I would reverse.
I am authorized to state that Judge Evans concurs in this dissent.
1973
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