Norris v. Nixon , 78 Ga. App. 769 ( 1949 )

1. An action against a county for money had and received must be brought in the name of the county.

2. An action for money had and received must be brought within four years from the date of the accrual of the action.

DECIDED MARCH 18, 1949. Mrs. Edna S. Norris, as executrix of the estate of Thomas E. Norris, brought suit in the Superior Court of Richmond County against R. P. Mayo, Scott Nixon, James P. Walker, David F. Franklin, and Carl T. Sanders, in their representative capacity as members of the Board of Commissioners of Roads and Revenues of Richmond County. Briefly summarized, the allegations of her petition were: Mr. Norris died on September 19, 1944. She had been duly qualified as executrix and was acting in that capacity. At the time of his death Mr. Norris had duly qualified and had been acting in the capacity of Tax Collector of Richmond County and had collected as fees and commissions from the tax revenue passing through his office for the year 1939 the sum of $11,321.49; and he had authority to retain these fees and commissions under the provisions of the acts of 1939, p. 370, and all laws relating to and governing tax collections. By letter, dated February 1, 1941, the county commissioners notified Mr. Norris of a resolution of that body that the fees and commissions of $11,321.49, which Mr. Norris had retained, must be refunded by Mr. Norris to the County Treasurer of Richmond County. On February 10, 1941, Mr. Norris acknowledged receipt of the resolution of the commissioners, and contended that he had retained the fees and commissions under authority of law and with the approval of the State Revenue Commission; but he refunded the money at that time under protest and without waving any of his rights, realizing the political coercion and pressure that would be exercised in defeating him for re-election if he did not do so. The plaintiff, Mrs. Norris, did not know of this money until shortly after the death of Mr. Norris when she found the commission account which Mr. Norris had maintained with one of the banks; and on January 17, 1946, she presented her claim to the board of commissioners with the request that the money be returned to her, as it was an asset of her husband's estate. After many months and repeated requests the board of commissioners finally denied her claim.

The resolution of the board of commissioners, attached to the petition, is as follows: "Whereas the Hon. T. E. Norris, Tax Collector of Richmond County, . . has under a claim of right withheld from funds in his hands as said Tax Collector, the sum of $11,321.49, which he claims represents 10% of the amount of all State, County, and School taxes collected in excess of 90% of the total of taxes due according to the tax net digest of Richmond County, for 1939; and whereas in arriving at said claim he contends that the total charges from all sources for 1939 amounted to $1,152,596.28, from which he had deducted insolvent list and errors and abatements of $132,888.28; contending the net charges amounted to $1,019,708.00. 90% of which is $917,737.20, and that as he has disbursed $1,030,952.08, he contends that he has collected $113,214.88 over and beyond the said 90%, and contending further that he is entitled to a commission of 10% of said $113,214.88, which he contends is arrived at by assessment of $404,339.00, and made up as follows:

$404,339.00 at 5 Mills State Tax      $2,021.70
at 9 Mills County Tax      3,639.05
at 14 Mills School Tax     5,660.74
__________
Total    $11,321.49

and; whereas, said Tax Collector, if in point of law he were entitled to such commission, he should not have deducted the insolvent list in determining his net digest; and whereas, Act 266 of the General Assembly of Georgia, approved March 24, 1939 (Acts 1939, pp. 370-2) is not a general law, in that it does not have uniform operation throughout the State, but purports to exempt from its provisions counties having a population of 200,000, or more, according to the United States census of 1930, and is, therefore, void as being a local or special act in conflict with the general law of local application, approved February 26, 1935 (Acts 1935, pp. 353-61), and in conflict with the general law it purports to amend, to wit: An act approved January 17, 1938 (Acts 1937-8, p. 297), Sections 15 and 16 of said 1935 Act reading as follows: Sec. 15. Be it further enacted by the authority aforesaid, that all fees, costs, percentages, forfeitures, penalties, allowances, and all other perquisites of whatever kind which shall be allowed by law after the approval of this Act, by any officer herein named shall be received and collected by all of said officers and each of them, for the sole use of the county in which they are collected and shall be held as public monies belonging to said county and accounted for and paid over to said county on or before the tenth day of each month, at which time a detailed itemized statement shall be made by the officer, under oath, showing such collections and the sources from which collected to the Board of County Commissioners of such county. The fees received for the State by the Tax Collector and the Tax Receiver shall be collected and received by such officers for and on behalf of such counties as are described in Section 1 hereof, and immediately upon collection shall be turned over to the County Treasurer, or other depository of county funds. Section 16. Be it further enacted by the authority aforesaid, that the salaries of the various officials herein fixed shall be their sole compensation, and all fees accruing after the approval of this Act are hereby abolished, so far as the same constitute the compensation of said officers, but the same schedule of fees and costs prescribed under the existing law shall remain for the purpose of ascertaining the sum or sums to be paid into the treasury of such counties as described in section 1 hereof.' The said Act of 1939 is not a general law is sustained by Thomas v.Austin, 103 Ga. App. 704, wherein the court had under consideration a law excepting certain counties, the court held: `In order for it to be general and have uniform operation throughout the State, it must affect each county in the State. If it excepts one, or several, it is not general, and can not have this uniform operation in all counties in the State. It follows, therefore, that the act in question is not a general law under this clause of the constitution.' In no event could it be argued that a local or special act would repeal the general law of local application, an example of which is said 1935 Act; and whereas, said general act of local application of 1935, had since its passage, been in full force and effect in Richmond County, in that Richmond County's population under 1930 United States census same [sic, stayed?] within the population limits named in said Act, and whereas Hon. Chas. S. Bohler was for many years prior to 1939 and to within a few days of December 1, 1939 when he died, Tax Collector of Richmond County, and that the said Chas. S. Bohler collected a portion of the said 1939 taxes; the said Hon. T. E. Norris having qualified as Tax Collector on or about December 1, 1939, which position he has ever since held and now holds; and whereas the said Hon. T. E. Norris, Tax Collector as aforesaid, is withholding from the Treasurer of Richmond County for the year 1939 the sum of $11,321.49, which lawfully belongs to Richmond County and should be paid to the Treasurer thereof; now, therefore, be it resolved by the Board of County Commissioners of Roads and Revenues of Richmond County that a copy of this resolution be served upon the said Hon. T. E. Norris, Tax Collector, as aforesaid, as a formal demand upon him to pay said sum of $11,321.49, and a copy of this resolution, when served upon him by the Clerk of this Commission shall be construed as a demand that said sum be paid unto the Treasurer of Richmond County. Be it further resolved, that in the event the said Hon. T. E. Norris, Tax Collector, as aforesaid, shall not comply with this demand within ten (10) days from the service of a copy of this resolution, the County Attorney of Richmond County shall be authorized and directed to file the appropriate legal proceedings against the said Hon. T. E. Norris, Tax Collector as aforesaid, for the purpose of compelling him to pay over said sum to the Treasurer of Richmond County."

The defendant commissioners filed their demurrers to the petition on the following grounds: (a) the petition fails to set forth any legal or equitable cause of action; (b) the petition shows on its face that this suit is against these defendants as members of the Board of Commissioners of Roads and Revenue, when it should have been brought against Richmond County; (c) the petition shows on its face that it is barred by the statute of limitations, since all suits against a county must be brought within one year from the date of presentation of a claim against a county; (d) any cause of action that Mr. Norris had arose in 1939, and no action was taken during his lifetime, he having lived until September 1944, a period of more than four years, and any cause of action which he might have had is barred by the statute of limitations; and (e) any payment Mr. Norris made was voluntarily and he could not now recover any amount from these defendants, and neither can the plaintiff as executrix of Mr. Norris's estate. The court sustained the demurrers upon each and every ground. The plaintiff excepted and appealed to the Supreme Court, which ordered the case transferred to this court for adjudication. 1. "Suits by or against a county shall be in the name thereof. . . " Code §§ 2-7801, 23-1501, and "this is true although the county commissioners may be the persons who would ordinarily institute suits in the name of the county."Henry v. Means, 137 Ga. 153 (72 S.E. 1021). See alsoBennett v. Walker, 64 Ga. 326; Arnett v. Board ofCommissioners of Decatur County, 75 Ga. 782; Jackson v.Dougherty County, 99 Ga. 185 (25 S.E. 625); McGinnis v.McKinnon, 165 Ga. 713 (141 S.E. 910); Commissioners ofRoads Revenues of Houston County v. Howard, 59 Ga. App. 451 (1 S.E.2d 222); Glaze v. Bogle, 105 Ga. 295 (31 S.E. 169).

2. Assuming for the sake of argument, without deciding, that Mr. Norris, the tax collector, was entitled, under the act of 1939 (Ga. L. 1939, p. 370), to the commissions which he, under protest, paid to the Treasurer of Richmond County, on February 10, 1941, which are the same commissions that Mrs. Norris, as executrix of his estate, is seeking to recover in this action, we are of the opinion that her action is barred by the statute of limitations. As executrix of her husband's estate, Mrs. Norris occupies a no more favored position than did her husband prior to his death with relation to the right to recover the commissions.

Assuming as we have done that Mr. Norris was entitled to the commissions, it would not have been incumbent upon him to present his claim therefor within the twelve-month statutory period fixed by Code § 23-1602, or within the four-year period fixed by Code § 3-706, if he had never received the commissions in the first place, but was seeking to compel payment in the first instance. Where the right to and the amount of the claim are fixed by law, such claim does not come within the purview of those claims barred by Code § 23-1602. The claims intended to be barred by that section have reference to claims growing out of contract or breach of duty. Tucker v. Shoemaker, 149 Ga. 250 (99 S.E. 865); County of Bibb v. Winslett, 191 Ga. 860 (14 S.E.2d 108); Gamble v. Clark, 92 Ga. 695 (19 S.E. 54); Sammons v. Glascock County, 161 Ga. 893 (3) (131 S.E. 881); Rogers v. Citizens Bank of Douglas, 149 Ga. 568 (5) (101 S.E. 674);Culberson v. Watkins, 156 Ga. 185 (119 S.E. 319);Freeney v. Pape, 185 Ga. 1 (4) (194 S.E. 515). However, the plaintiff in the instant case is not seeking payment. She seeks repayment. Mr. Norris had already paid himself the commissions in either 1939 or 1940, and by reason of the resolution of the Board of Commissioners of Roads and Revenues of Richmond County, refunded the money to the county treasurer.

As we construe the petition, the present action is in the nature of an action for money had and received. "If a county illegally obtains the money of another . . and refuses, on demand, to make restitution an action for money had and received lies against the county for the money so appropriated and used."City of Dawson v. Terrell County, 38 Ga. App. 676 (145 S.E. 465); Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S.E. 149, 15 L.R.A. (N.S.) 567, 121 Am. St. Rep. 244). For an action by a tax collector against a county treasurer for money had and received where the money in question had been paid undera mistake of fact, see Law v. Nunn, 3 Ga. 90. See also, in this connection, Cloud v. DeKalb County, 70 Ga. App. 777 (29 S.E.2d 441).

Whether or not the claim for the commissions is such a claim as is barred by Code § 23-1602 or not, under our construction that the action is one for money had and received, the action is barred under Code § 3-706, which provides: "All actions upon . . any implied assumpsit or undertaking, shall be brought within four years after the right of action shall have accrued." An action for money had and received must, under that section, be brought within four years from the time the right of action accrues. Calhoun National Bank v. Yancey Bros. Inc., 68 Ga. App. 661 (23 S.E.2d 468); Jasper School District v.Gormley, 57 Ga. App. 537, 544 (196 S.E. 232); Mobley v.Murray County, 178 Ga. 383 (173 S.E. 680).

It appears from the allegations of the petition that Mr. Norris paid the commissions over to the county treasurer on February 10, 1941, under protest. If, as we have assumed, Mr. Norris was entitled to the commissions, and he paid the money over to the county treasurer upon the illegal order of the board of commissioners, his right to recover the commissions accrued the moment the funds were received by the county treasurer. Mr. Norris died September 19, 1944. An interval of three years seven months and nine days elapsed between the date of the accrual of the right of action and his death. His executrix was qualified on October 6, 1944. She filed suit on April 27, 1948. An interval of three years six months and twenty-one days elapsed between the date of her qualification and the date on which she filed suit. As a matter of simple arithmetic, seven years two months and thirty days elapsed between the date of the accrual of the action and the date of the filing of the suit. In compliance with the provisions of Code § 3-803, the time between Mr. Norris's death and the representation taken upon his estate was not, of course, included in the calculations made just above.

The action was not brought within the four-year statutory period, and the court did not err in sustaining the demurrer to the petition for the reasons stated in this and the foregoing division of the opinion.

Judgment affirmed. Gardner and Townsend, JJ., concur.