Gamble v. Clark , 92 Ga. 695 ( 1893 )

Simmons, Justice.

1. It appears from the record that the plaintiff in error was the solicitor or prosecuting officer of the county court of Jefferson county for the year 1880, and that he presented to the judge thereof an itemized bill for insolvent costs which had accrued to him for that year,. and obtained from the judge an order upon the county treasurer for payment out of any fines or forfeitures that might come into the treasurer’s hands arising from prosecutions in that court; and this order was entered on the minutes of the court. In 1889 the legislature passed an act abolishing the county court of Jefferson county, but in 1892 repealed that act (Acts 1892, p. 225), and the court was reorganized the same year. After its reorganization, an amount of money arising from fines- and forfeitures in that court was paid to the county treasurer. Under section 4655(e); of the code, when a bill for insolvent costs is presented to the judge of the county court by ah officer of the court, and the judge orders it paid, and this order is entered- upon the minutes-of the court, it becomes a final judgment, and the county treasurer is authorized and required to pay the order when he has funds subject to it, and no farther order from the judge is required. If subsequently to such an order a dispute should arise between the holder of the-order and the county treasurer as to whether the order is binding upon the treasurer, and they should agree to refer the matter to the county judge for his decision, this would not confer jurisdiction upon that court or the judge thereof to change or modify the order, nor would any order or judgment he might pass upon the subject referred to him be legal and binding upon either of the parties. "When the judge of the county court approves the bill of costs and passes an order directing the treasurer to pay it, his jurisdiction of the subject-matter is-at an end. The order is a final judgment so far as he is concerned. No provision of law exists for referring such a question to the county judge as a mere arbitrator. In paying out public funds the county treasurer-must conform to the law as it is, not merely as it may be supposed to be by a chosen referee.

2. The fact that the legislature abolished the court and. afterwards re-established it by repealing the act which had abrogated it, did not affect the force and validity of the order granted the plaintiff in error for his insolvent costs. The law that would have governed the distribution of this money in case the court had not been abolished, governed its distribution when the court was re-established and a fund had arisen from fines and forfeitures therein.' It was a county court in 1893 when the funds out of which the plaintiff'm error seeks to collect his claim arose therein and were paid into the county treasury, and the laws applicable to county courts applied to it then just as they did m 1880, when this order was granted. When the court was abolished, sections 4655(a)-(e) were in force, and when it was re-established, they were still in force and applicable to any county court in the State, except in cases where the disr tribution of the fund was regulated by' local laws. (§4655(g).) Within the meaning of the sections above cited, any county court which succeeds a former county court of the same county is virtually the same court, and is subject to the same laws and has the same jurisdiction and powers.

3. Although the plaintiff' in error and other contestants for the fund may have agreed upon a statement of facts and submitted the matter in dispute to the county judge for his decision, and although that decision may have been taken by certiorari to the superior court, this, m our opinion, did not deprive the plaintiff in error of his right to sue out a mandamus against the county treasurer to compel him to pay the money on the order in question. As before remarked, the county judge had no jurisdiction to change or modify the order passed by his predecessor in 1880 ; and when that order was passed and placed on the minutes, it became a charge upon any funds arising in the county court from fines and forfeitures which might thereafter be paid into the county treasury; the statute makes it the duty of the treasurer to pay such order, and if he fails to do so, mandamus is the proper remedy.

4. It appears from the evidence that there had been no funds in the treasurer’s hands subject to order in favor of the plaintiff in error from the time he obtained it until this particular fund now in controversy was placed in the treasury. The order therefore did not become stale by the lapse of time. Judgment reversed.