Issuance of executions against tax collector or tax commissioner upon failure to settle accounts; allowance of credits; interest only on amount of default.

If any tax collector or tax commissioner fails to settle his accounts with the commissioner as provided by law, the commissioner shall issue execution against the tax collector or tax commissioner and his sureties for the principal amount, together with interest at the rate of 20 percent per annum on the amount. If upon a final settlement it appears that the tax collector or tax commissioner was entitled to credits at the time he is required by law to settle, the commissioner may allow the credits and charge interest only on the amount for which the tax collector or tax commissioner is in default, together with all the costs and attorney’s fees incurred by reason of the issuance of the execution. History. Laws 1823, Cobb’s 1851 Digest, p. 1025; Code 1863, §§ 832, 833; Code 1868, §§ 911, 912; Code 1873, §§ 909, 910; Code 1882, §§ 909, 910; Ga. L. 1889, p. 52, § 1; Civil Code 1895, § 924; Civil Code 1910, § 1187; Code 1933, § 92-5504; Code 1933, § 91A-1383, enacted by Ga. L. 1978, p. 309, § 2. JUDICIAL DECISIONS Constitutionality of § 48-5-201 as construed together with § 36-6-27. — Former Code 1910, § 585 (see now O.C.G.A. § 36-6-27), insofar as the statute authorized the board of commissioners of roads and revenues (now county governing authority) to include in such an execution attorney’s fees under former Civil Code 1910, § 1187 (see now O.C.G.A. § 48-5-201), was unconstitutional and void because the statute was violative of the due process of law clauses of the Constitution of the State of Georgia and of the United States in that no provision is made giving the county treasurer and the sureties on the treasurer’s bond an opportunity to be heard as to the amount or reasonableness of such fees, and the law does not otherwise provide for any method of attack thereon. It is further unconstitutional and void because the statute was in violation of Ga. Const. 1877, Art. I, Sec. I, Paras. I and XXIII (see now Ga. Const. 1983, Art. I, Sec. II, Paras. II and III) in that the determination of what attorney’s fees incurred are reasonable and the assessment of such fees are judicial functions and cannot be delegated to an administrative official. The effect of this ruling is to preclude collection by the county of interest at the rate of 20 percent per annum and attorney’s fees, under § 1187, if that were applicable under the provisions contained in former Civil Code 1910, § 585 (see now O.C.G.A. § 36-6-27). Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595, 173 S.E. 720, 1934 Ga. LEXIS 111 (1934). Statute is applicable when a fi. fa. is issued by the board of commissioners against the tax collector for moneys claimed to be due the county. McWhorter v. Chattooga County, 154 Ga. 289, 114 S.E. 203, 1922 Ga. LEXIS 351 (1922). Not available against usurper of tax collector’s power. — Comptroller general (now commissioner) is only authorized to issue executions against tax collectors, and their securities, when in default. When the state, by the state’s agent, procures a judgment declaring one as usurper, exercising the duties of the office of tax collector without warrant or authority; then, the comptroller general (now commissioner), as its agent cannot legally issue an execution to collect for the state from the comptroller general, as tax collector, the amount of money alleged to have been received by the comptroller general as such usurper, and which the comptroller general had already been ordered by judgment to pay over to the clerk of the superior court of the comptroller general’s county. Hartley v. State, 3 Ga. 233, 1847 Ga. LEXIS 102 (1847). Liability of county treasurer. — Under former Civil Code 1895, § 469 (see now O.C.G.A. § 36-6-27), construed with former Civil Code 1895, § 924 (see now O.C.G.A. § 48-5-201), a county treasurer was liable for the 20 percent penalty imposed by that section. Lamb v. Dart, 108 Ga. 602, 34 S.E. 160, 1899 Ga. LEXIS 308 (1899). Subrogation of surety. — When the comptroller general (now commissioner) issued an execution against a defaulting tax collector and the tax collector’s sureties, for money due the state for taxes collected and not paid over, such sureties have the right to pay off the execution, or the balance due thereon, and to control the same as against the property of their principal, or property which the tax collector owned at the time of the execution of the tax collector’s bond. Irby v. Livingston, 81 Ga. 281, 6 S.E. 591, 1888 Ga. LEXIS 108 (1888). Enforceable against otherwise exempt property. — Homestead set apart under Ga. Const. 1868, Art. VII (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) for the family of a tax collector is liable for the collector’s default in paying over to the state taxes collected by the tax collector. Davis v. State, 60 Ga. 76, 1878 Ga. LEXIS 375 (1878). Execution against a defaulting tax collector and the collector’s sureties is an execution for taxes in the true intent and meaning of the Constitution of Georgia, and may be enforced against personalty set apart and exempt from ordinary judgments, executions, and decrees, in possession of the collector or the collector’s sureties. Cahn v. Wright, 66 Ga. 119, 1880 Ga. LEXIS 26 (1880). Provisions of former Code 1933, § 89-833 (see now O.C.G.A. § 45-8-7) as to interest supersede those of former Code 1933, § 92-5504 (see now O.C.G.A. § 48-5-201), providing for interest at the rate of 20 percent per annum on the principal amount against the tax collector and the collector’s sureties. Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802, 115 S.E.2d 387, 1960 Ga. App. LEXIS 1015 (1960). Provision for 20 percent interest is highly penal. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). Date from which interest accrues. — When a defalcation occurs in the office of county treasurer, the statutory interest of 20 percent per annum, specified in this statute to be charged against the treasurer and the surety on the treasurer’s bond, should be calculated from the date of demand for payment or the equivalent of demand such as the issuance of execution and the like, and not from the date of defalcation when no such demand is made at that time. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). Distinction between principal and surety with regard to payment of interest. — Former Civil Code 1910, §§ 585 and 1187 (see now O.C.G.A. §§ 36-6-27 and 48-5-201) draws no distinction between the principal and surety with regard to payment of interest, but the interest specified in the statute is to be charged against both principal and surety. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). Applicability to county treasurers and their bondsmen. — Provisions of former Civil Code 1910, § 1187 (see now O.C.G.A. § 48-5-201), relating to issuance of executions against defaulting county tax collectors and their bondsmen, were by former Civil Code 1910, § 585 (see now O.C.G.A. § 36-6-27) made applicable to the issuance of executions against defaulting county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). Affidavit of illegality not available to county treasurers and their bondsmen. — Ga. L. 1915, p. 55, §§ 1-3 (see now O.C.G.A. § 48-5-203) amends the law in relation to issuance of executions against county tax collectors so as to afford a remedy by affidavit of illegality, but that section does not extend so far as to afford such remedy to county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). Liability of county treasurer and surety when bank in which tax receipts held is insolvent. — When a county treasurer, in making an accounting with the treasurer’s successor, delivers a check representing public funds which the treasurer has in a bank, and the check is accepted in lieu of cash, and upon acceptance and presentation of such check by the payee, credit therefor is transferred by the bank to the new treasurer, the fact that the bank may be insolvent at the time of such transaction does not necessarily show a default by the officer making such accounting, but in equity the transaction should be treated as a transfer of money, to the extent of the amount which the bank could and would have paid in cash, if cash had been demanded. Under this principle, the petition of a surety company alleged a good defense against the enforcement of the execution, and upon the hearing for injunction the evidence made an issue of fact as to the existence of such defense. Board of Comm'rs v. Massachusetts Bonding & Ins. Co., 175 Ga. 584, 165 S.E. 828, 1932 Ga. LEXIS 294 (1932). RESEARCH REFERENCES C.J.S. 85 C.J.S., Taxation, §§ 1144, 1145, 1149, 1150. ALR. Time from which interest begins to run on fidelity or public officer’s bond, 57 A.L.R.2d 1317.