Executions against persons holding county money.

(b) Upon the failure of obligated persons to pay over county moneys, the county governing authority shall issue executions against such persons and their securities, if any, for the full amount appearing to be due. The executions shall be issued in the same manner as the commissioner issues executions against defaulting tax commissioners or tax collectors. History. Laws 1796, Cobb’s 1851 Digest, p. 182; Code 1863, §§ 494, 495; Code 1868, §§ 557, 558; Code 1873, §§ 523, 524; Code 1882, §§ 523, 524; Civil Code 1895, §§ 413, 414; Civil Code 1910, §§ 522, 523; Code 1933, §§ 92-3808, 92-3809; Code 1933, § 91A-1218, enacted by Ga. L. 1978, p. 309, § 2. JUDICIAL DECISIONS Constitutionality. — Former Civil Code 1910, §§ 522 and 523 (see now O.C.G.A. § 48-5-238) was held to be constitutional in view of former Civil Code 1910, § 524 (see now O.C.G.A. § 48-5-239). Hobbs v. Dougherty County, 98 Ga. 574, 25 S.E. 579, 1896 Ga. LEXIS 105 (1896); Roberts v. Dancer, 144 Ga. 341, 87 S.E. 287, 1915 Ga. LEXIS 197 (1915). Against whom execution may be issued. — Under former Civil Code 1910, §§ 522, 523, and 525 (see now O.C.G.A. §§ 48-5-238 and 48-5-240), an execution may be issued against any person, whether an official or not, holding county money, and without suit or notice of any kind. Hobbs v. Dougherty County, 98 Ga. 574, 25 S.E. 579, 1896 Ga. LEXIS 105 (1896); Greer v. Turner County, 138 Ga. 558, 75 S.E. 578, 1912 Ga. LEXIS 609 (1912). Degree of specificity required in execution. — It is not essential to the validity of an execution issued by virtue of this statute that it be set out therein from whom the defendant in fi. fa. received the money, what particular money it was, or how it was county money. Greer v. Turner County, 138 Ga. 558, 75 S.E. 578, 1912 Ga. LEXIS 609 (1912). Execution cannot be legally issued under this statute against the sheriff of a county on the bond given by the sheriff of a city court of the county, although both offices may have been filled by the same individual. Martin v. Decatur County, 34 Ga. App. 816, 131 S.E. 302, 1926 Ga. App. LEXIS 58 (1926). Execution against surety on bond of receiver for excess legal commissions not authorized. — An ordinary (now county governing authority) is not authorized to issue an execution against a surety on the bond of a receiver payable to the Governor for an amount received in excess of the receiver’s legal commissions. Fannin County v. Pack, 149 Ga. 703, 102 S.E. 166, 1920 Ga. LEXIS 379 (1920). Execution founded on bond unenforceable when no bond given. — An execution founded on a tax collector’s bond cannot be enforced on the ground that the tax collector has public money in the collector’s hands, when it appears that the tax collector did not in fact give a bond. To hold the tax collector liable for public funds held by the tax collector, a proper execution must be issued. County of Lee v. Walden, 68 Ga. 664, 1882 Ga. LEXIS 80 (1882). After levy of an execution issued, an affidavit of illegality is an available remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). If the execution provided for under this statute has not been levied, an affidavit of illegality is not available and an injunction is the remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459, 1931 Ga. LEXIS 107 (1931). Procedure when tax official retains excess sums as commission. — While under former Code 1933, § 32-1106 the tax collector was required to pay over to school authorities all sums collected as taxes for educational purposes, such taxes were nevertheless levied by the county authorities; and when a tax commissioner has succeeded to the duties of a tax collector and has retained from such taxes a sum as commissions in excess of the amount to which the commissioner is entitled, the proper county authorities may issue an execution for the excess under this statute. Palmer v. Burke County, 180 Ga. 478, 179 S.E. 344, 1935 Ga. LEXIS 450 (1935). When a tax was levied by the county for educational purposes, it was within the province of the county authorities to issue execution for any sum unlawfully retained by the tax commissioner, and the disposition of the recovery is a matter between the county and the educational authorities; the presumption being that the amount so recovered will be applied according to law. Palmer v. Burke County, 180 Ga. 478, 179 S.E. 344, 1935 Ga. LEXIS 450 (1935). RESEARCH REFERENCES C.J.S. 85 C.J.S., Taxation, § 1140 et seq.