On presentation of a petition for injunction, the judge did not grant a restraining order, but issued a rule nisi. After argument of counsel at the appointed time and place, it was not erroneous, on the allegations of the petition, to refuse to grant an interlocutory restraining order.
No. 13595. APRIL 17, 1941. In 1940, after removal of E. L. Adamson from office as sheriff of Clayton County, the board of commissioners of roads and revenues of the county, at a called meeting without notice to Adamson and in his absence, "ordered and adjudged that Clayton County as plaintiff recover against said E. L. Adamson county money in his hands collected, received, and illegally retained, the sum of nine *Page 55 thousand two hundred ninety-five and 68/100 ($9,295.68) dollars, principal, the sum of two thousand five hundred twenty-nine and 81/100 ($2,529.81) dollars, interest, and all future interest." The order further directed the clerk of the board of commissioners to issue execution for the amount. Execution was issued and entered on the general execution docket of the county, and was placed in the hands of the sheriff for levy and sale. Before levy of the execution, Adamson instituted an equitable action against the board of commissioners and the sheriff, seeking to enjoin levy of the execution, or its enforcement by other means, and to require production in court of all documentary evidence on which the board of commissioners based its above-mentioned order. The petition with attached exhibits alleged all that is stated above, and substantially the following. The board did not have authority at the special session to act as a commissioners' court for the purpose of passing upon the matter. The facts in evidence before the board did not authorize the finding; all of the acts of the board were done under supposed authority of the statute (Ga. L. 1933, p. 78), whereas that statute is not applicable to the facts before the board. In paragraph "8A" it is alleged: "That the board had its records which showed that E. L. Adamson had not received, collected, or held any sum, money or other thing of value, save and only moneys paid to him upon the express contract and order of the county authority, and that no demand had ever been made upon said E. L. Adamson to pay back any money which had been paid to him upon and by order of the county authority, the authority being fully aware of the fact that Clayton County, upon an accounting, would owe E. L. Adamson more than it had paid him, for fees due him for services in the city court of Jonesboro, maintenance of a county automobile, and many other items which he had failed to collect under the contract with the county and all of which items are due him."
In paragraph 9 it is alleged: "Plaintiff alleges that he is not a defaulter, that he holds no money or other property or thing of value as a collecting officer for which he has failed to account for and pay over to the proper county authority, or for which his bondsmen were surety at any time as a public officer are or could be held liable. That he is not indebted to Clayton County in any way, manner, or amount, but the county is in debt to him." In paragraph *Page 56 10 it is alleged: "That he has been advised and believes that the pretended claim or demand against him depends upon the claim of said board that plaintiff, while sheriff of Clayton County, had been paid certain fees or commissions for collecting insolvent taxes due to Clayton County and for salary paid to him to act as county police officer; and he alleges that any and all payments which may have been paid to him were for actual services rendered and on the express order and authority of the commissioners of roads and revenues of Clayton County, and were paid to and received and retained by him in the utmost good faith, upon the advice of counsel given to him, and that the commissioners of roads and revenues of Clayton County, before its action, had been advised by its counsel and other attorneys at law that it had the right and legal authority to so employ this plaintiff and to pay him all sums paid him for his services provided for, and its action followed the advice given, and all its acts, orders, and contracts made were duly entered upon the minutes of said board at the time, as required by law, and that the said E. L. Adamson had given up the right to collect fees due him under the law, and the payments made to him were made with that understanding and were less than the fees due him."
On presentation of the petition the judge did not grant a restraining order, but issued a rule nisi. After argument of counsel at the appointed time and place the judge entered an order declaring "that an interlocutory restraining order be and the same is hereby denied." The plaintiff excepted. He assigned error also on refusal of the judge to grant a supersedeas. It is provided in section 10 of the act approved July 1, 1910 (Ga. L. 1910, p. 256), creating the Board of Commissioners of Roads and Revenues for Clayton County, that such board shall have exclusive jurisdiction "in settling all claims and accounts of officers having the care, management, or disbursement of funds belonging to or appropriated for the use and benefit of said county, and in bringing them to settlement; . . and generally to have and to exercise all the powers heretofore vested in the ordinary of said county when sitting for county purposes, and to exercise such other powers as are granted *Page 57 by law or as may be indispensable to their jurisdiction over county matters or county finances." The act of 1915 (Ga. L. 1915, p. 183), purporting to repeal the above, did not become effective, because of failure of ratification as therein provided. So the act of 1910 remained of force, and was amended by the act of February 7, 1938 (Ga. L. Ex. Sess. 1937-1938, p. 786), in manner not material to be stated. By the general law, "The ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matters . . 6. In examining, settling, and allowing all claims against the county. 7. In examining and auditing the accounts of all officers having the care, management, keeping, collection, or disbursement of money belonging to the county or appropriated for its use and benefit, and bringing them to a settlement." Code, § 23-701. The general law also provides: "The ordinaries or other county authorities in charge of county affairs may compel all persons, their heirs, executors, or administrators, who have in their hands any county money, collected for any county purpose whatever, to pay over the same." § 92-3808. Also: "On failure to pay the same, the ordinaries or other county authorities in charge of county affairs shall issue executions against such persons and their securities, if any, for the full amount appearing to be due, as the Comptroller General issues executions against defaulting tax collectors." § 92-3809. "If such execution shall issue for too much, or if defendant shall deny on oath owing any part thereof, he may, by filling an affidavit of illegality, according to the rules governing other illegalities, cause an issue to be formed thereon, which shall be tried by a jury at the first term of the superior court thereafter." § 92-3810.
On the basis of the foregoing general laws and a substantially similar local law, it was held in Greer v. Turner County,138 Ga. 558 (75 S.E. 578): "The chairman of the board of roads and revenues of Turner County has authority to issue an execution against any person holding county funds collected by the county for any purpose. . . It is not essential to the validity of such an execution 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. . . The execution may be issued against any person, whether an official or not, holding county money, and without suit or notice of any kind." Similarly it was later held *Page 58 in United States Fidelity Guaranty Co. v. Toombs County,187 Ga. 544 (1 S.E.2d 411), that "the official or officials exercising control over the fiscal affairs of a county had the power to issue without notice an execution against the sheriff and his surety for money collected and unaccounted for." The quoted provisions of the local act of 1910, supra, creating the Board of Commissioners of Roads and Revenues for Clayton County, are to be considered in connection with the above-quoted provisions of the general law, as a composite whole. When so considered and applied, the Board of Commissioners of Roads and Revenues for Clayton County had jurisdiction to issue execution against Adamson for money of the county coming into his hands as sheriff and due the county, at the specially called session. InMcDuffie v. Wilcox County, 165 Ga. 164 (4) (140 S.E. 379), it was held: "The law presumes, when a fi. fa. is issued against a county tax-collector, that the amount named therein is due by the officer, and the burden is on the tax collector to show that the fi. fa. is invalid or inoperative in whole or in part.Bridges v. Dooly County, 83 Ga. 275 (9 S.E. 1085); Mason v. Commissioners, 104 Ga. 35, 50 (30 S.E. 513). The fact that the term of such officer has expired and that at the time the fi. fa. was issued he was a private citizen does not alter the case." After that decision came the act approved March 16, 1933, as in the Code. § 89-824. After that act of 1933 it was held in United States Fidelity Guaranty Co. v. ToombsCounty, supra: "The clause in the Code, § 89-824, to the effect that `On the trial of the case, whether in equity or on affidavit of illegality, the burden of proof shall be on the official or authority issuing the execution,' read in connection with another clause in the same section, to wit. `and such execution shall be prima facie evidence of the facts, including the amount of loss sustained, therein recited,' does not in substance change the rule. When the fi. fa. is introduced in evidence, as was done in this case, the burden of proof is shifted."
That case was regularly tried by the jury, and the exception was to refusal of a motion for a new trial. The shifting of the burden of proof mentioned in the decision by the Supreme Court was accomplished by the plaintiff's introduction of the execution in evidence. The same result is accomplished in the instant case, where the plaintiff alleged existence and substance of the execution, and the judge on the basis of the allegations of the petition *Page 59 refused a restraining order. The petition is to be construed must strongly against the plaintiff. The execution shows a definite amount due by plaintiff for money of the county, collected by plaintiff as sheriff and unaccounted for. Other allegations of the petition fail to show that the money had been accounted for. The paragraphs 8A, 9, and 10, set forth in the statement of facts, show relation one to the other. They amount to an indefinite attempt to explain that the amount shown by the execution is not due. The explanation revolves around the proposition that by custom, and private contracts, the plaintiff had waived collection of fees, commissions, and other indebtedness owed to him by the county, more than the amount of the execution, by reason whereof plaintiff had discharged his debt to the county. Plaintiff's relation to the county was fiduciary, and it was his duty under the law to pay the money over to the county as it was collected. There is no law authorizing any such practice, or any agreement or custom, to barter moneys collected for the county for waiver of fees or other individual demands against the county. Any such arrangement would be void as against public policy. In this connection seeLamb v. Dart, 108 Ga. 602, 611 (34 S.E. 160). The allegations of the petition failed to sustain the burden of disproving the amount due as disclosed by the execution; and consequently the judge did not err in refusing to grant a temporary restraining order.
Judgment affirmed. All the Justices concur.