By the Court.
Warner, J.delivering the opinion.
From the record in this case it appears, that at the August Term, 1844, of Crawford Superior Court, Augustus S. Wingfield, Esq. then Solicitor General representing the state of Georgia, filed an information in said Court, that one Frederick Hartley was using and exercising the office of tax collector for said county of Crawford, without any warrant or commission from the said state of Georgia; and which office ]je had usurped, &c.; and prayed out a writ of quo warranto, which was duly served on Hartley.
On hearing the information on the return of the quo warranto, and the answer of Hartley thereto, the Court gave the following judgment: — “The Court having heard the within quo warranto, and the said Frederick Hartley’s answer thereto, and it appearing that said Hartley has been, and is now, exercising the office of tax Collector of said county of Crawford without sufficient warrant: therefore, ordered by the Court, that the said Frederick Hartley be, and he is hereby, removed from said office, and that the papers and books appertaining to said office now in the hands of said Hartley, and all moneys by him, received as tax collector, as aforesaid, .since the 18i7t June last, be by him paid to or deposited with and turn*238ed over to, the cleric of the Superior Court, and hy him to he retained until they shall he applied for hy the next regularly elected tax collector .of said county.” This judgment of the Court was had at'the August Term of the Court, 1844. On the 29th day of March, 1845, the Comptroller General of the State of Georgia issued an execution against Hartley and his securities, for the sum of $344 51 — the amount of taxes alleged to have been received by him while exercising the duties of tax collector as aforesaid. To this execution Hartley filed his affidavit of illegality on several grounds, one of which was, that he had been removed from the exercise of the duties of the office by the judgment of the Court, declaring he had no sufficient warrant or authority therefor. Upon hearing the affidavit of illegality, the Court below overruled the same, to which Hartley excepted, and now assigns the same for error in this Court. [1.] This execution issued against Hartley and his securities, as tax collector for the county of Crawford, for money which had been ordered by the judgment of a Court of competent jurisdiction, to he by him paid over to the clerk of the Superior Court of that county, on the ground that he was not tax collector, but had usurped the office, without any warrant or authority. The Solicitor General, as the agent of the State, and acting for and in behalf of the State, procured the judgment of the Superior Court declaring that Hartley was an usurper, and had no authority to collect taxes in the county of Crawford, for the State of Georgia. The judgment of the Court on the quo warranto, settles the question that he was no tax collector, and ordered the money in his hands to be paid to the clerk o,f the Court, until the same should be applied for by the regularly elected tax collector of the county. The legal presumption is, that Hartley complied with the judgment of the Court.
The Comptroller General is only authorized to issue executions against tax collectors, and their securities, when in default. The State, hy its agent, procures the judgment of the Court, declaring that he is an usurper, and exercising the duties of the office without warrant or authority ; then, the Comptroller General, as its agent, issues the execution to collect from him for the State, as tax-collector, the amount-of money alleged to have been received by him as such usurper, and which he had already, at the instance of the Solicitor General acting as the agent of the State, been ordered to pay over to the clerk of the Superior Court of Crawford county. We are of the opinion that the State cannot repudiate him as tax collector at one time, and treat him as an usurper, and hold *239him responsible as such at another; that she is bound by the judgment of the Court, on the quo warranto, the information for which was filed by her agent; that judgment declares he was not authorized to collect taxes, as tax collector, for the State. We are therefore of the opinion, the Court below erred in its judgment in not sustaining the affidavit of illegality, on that ground. Before delivering our judgment upon the constitutional questions made in the cause, we prefer to have them more elaborately argued, and a more extensive research into the authorities, than we are enabled to make at this time ; as well on account of their importance, involving as they do the power of one of the co-ordinate branches of the government, as their practical effect in the collection of the State revenues; and having no difficulty in disposing of the case on the other ground, we express no opinion as to the constitutional questions raised on the argument and presented by the record. Let the judgment of the Court below be reversed, on the ground stated.