The morning news. [volume] (Savannah, Ga.) 1887-1900, 1891-12-12
CAPT. DILLON ON TOP.
NO FOUNDATION IN LAW FOR
TREASURER RUSSELL's POSITION.

Opinion That the Clerk Of the County
Commissioners Is Not a County o.
fice-If Treasurer Russell Refuses to
Recognise Clerk Dulon's Warrants
bis Bondsmen Can Be Proceeded
A9einst-Cne OF the Trea surer's
Boadsmen Threatens to Withdraw.
County Treasurer Russelrs attempt 70
GUST Capt. John R. Dillon from one of the
offices held by him has so far proven a
failure.
County Attorney Saussy yesterday sub
mitted bis opinion to the county commits
sioners on the communication Of Treasurer
Russell, denying that the law cited by him
affects the clerk. The opinion IL as follows:
ATTORNEY sAUssY's OPINION.
SAVANNAH, GA, Dec. II. 1891.
TO The Honorable the Comm listeners Of Chat
ham County, etc:
A communication from waring Russell,
county treasurer Of Chatham county, TO your
honorable body calling your attention to an act
OF the general assembly of Georgia approved
sept. II, 1891, and informing you that John r.
D ~ VINO now occupies the office OF rec liver
OF tax returns, cannot hold the other
of1ice OF clerk OF the county commissioners OF
Chatham county" and declining 10 ''recoanizs
any warrant drawn on MIN by your honorable
referred to me for q report | beg TO submit
that in my opinion the county treasurer has n }
foundation in law for the position he has
assumed. He has no legal right or power to
direct the bolrd of county commissioners how
they shall cause warrants to be drawn on the
treasurer nor to direct who shall sign such war
rants. It being the exclusive jurisdiction and
power OF the county commissioners TO appoint
any person to discharge any trust authorized
by their powers where no other person is desik-
mated by law And if the county treasurer
fails TO pay any warrants orders on the
county treasurer which the county commits
sione-s have authorized and directed Capt.
Dillon, as clerk OF the beard Of county commits
sioners to sign, he having funds TO pay the
same, the law provides a summary remedy to
enforce the payment
will state as briefly as l can the reasons for
this opinion: "Th9 act OF the legislature APP
proved sept II, 1891, to which the county
treasurer calls your attention, declares that
from and after the passage of this act no per
son shall hold in any manner Whatever or be
commissioned to hold at one time more than
one county office except by special enactment
of the legislature heretofore or hereafter
ma1e.' The time in which my
opinion has been required has be n too short TO
enable me to examine the local acts affecting
this county TO ascertain whether any statute
exists allowing one person to hold more than
one county office, but in the view that have
taken of the law this search is unnecessary.
In the first place, in my opinion, the clerk of
TIE board of county commissioners is not a
county office in the meaning of the statuts
"a There is no statute directly and distinctly
defining what offices are county Offices, but in
the laws that have been enacted providing for
the appointment or election of county officers"
60 nomiHe, the offices specifically mentioned
are clerks OF the superior court and inferior
court, sheriffs coroners and county surveyors
The act OF Dec. L. 1893, uses the expression, In
future all elections of county officers TO wit"
and names the Offices above set out. The infe-
rior court as then constituted. had three dis
tinctive Jurisdictions l. A civil jurisdiction
concurrent with the superior court except as to
equity, divorce and cases involving title TO land
2. A probate Jurisdiction. s. A court sitting
for county purposes, aud by special enactment
the clerk Of the inferior court was authorized to
act as the clerk OF the inferior court when sit
ting d for county purposes The
diction formerly exercised by the justices of
the inferior court when sitting for county pur-
poses, and special power to hear haOeas
corpus under certain circumstances, and their
clerks an officer specially provided for n the
act creating the board
o. The Code after naming such officers as
must be commissioned under the great seal of
the state, declares that all other civil officers OF
the state or countyshal be commissioned under
the seal of the executive department except
constabes. The clerk or the county commits
sioners is not commissioned, he does not re-
ceive even a certificate of his election as in
cases of constables. If the office of clerk of
the board OF county commissioners is not
county office the acc does not apply to it.
In the second place. AS already stated the
county commissioners have power Ito appoint
any person to discharge any trust
authorized by their powers where no
other person is designated by the law
When the commissioners appoint Capt
Dillon to sign tue warrants on the county treas,
urer for the payment of such debts against the
county as they may audit and order paid, they
by law and the county treasurer cannot set
aside the appointment or lawfully refuse to pay
warrants so signed, if In funds
II the conc usions have drawn from the law
prrOnpOuS the clark Of ha
missioners and the receiver of tax returns are
both county Offices, the act of Sept II, 1891
does not apply to the present incumbent.
!, Because the act takes effect from and after
It's passage it cannot be retroactive in its effect
2. 1t does not declare that the county offices,
where one person holds more than one shall
become vacant by virtue of the act nor does it
require the incumbent TO elect which county
office he shall continue TO discharge, and which
one he will retire from.
II the clerk of the county commissioners and
receiver OF tax returns are both county officers
and one only of the offices becomes vacant
under the law and the law fails to specify which
one becomes so vacant, l fail to discover tie
legal reason or right of the county treasurer to
assume that the office of clerk Of the county
| commissioners is the one vacated under the
| law instead Of that Of receiver of tax returns
lnasmuch as the act does not provide for
vacating county Offices where more than one is
| now held by one person and does not REQUIRE
| such person to elect which Office he will CON
| tnue TO hold, and there is no penalty for the
| hOAulAs VI ouSh OilCeSI anu lu6 law must De
| prospective only In its operations. it seems
| quite clear that it does not operate on county
| offices to which one person had been legally
| elected or appointed before its passage.
| d. Under the laws of this state all officers are
| required to discharge the duties of their office
| until their succ 'SSOrS are commissioned and
| qualified. Mr.. Dillon must remain and dis
charge his duties until his successor shall be
appointed and qualified, and s.de facto clerk in
| the meantime.
In conclusion, it may be added that as the
| county commissioners have the original and
| exclusive Jurisdiction to examine and audit the
| accounts OF the county treasurer, they cannot
! ignore or refuse toTecognize all warrants dra wn
| by their order on him, and neither he nor his
| bondsmen can incur any risks by his paying
the warrants drawn under the order and dlrec-
ton OF the board.
The summary remedy referred to, in nv opin-
ion, is provided in section 500 of the Code Where
the county treasurer at any time fails to pay
an order which is entitled to payment or other
| legal demand upon him, or to pay any balance
| that may be in his hands to his successor or to
the person entitled to receive it, the board of
| county commissioners may issue execution
| against him and his sureties for the amount
due as against defaulting tax collector
Respectfully submitted.
J. r. SAUssY, County Attorney.
WILL CONTINUE TO SIGN WARRANTS,
After the decision of Attorney Saussv
had been rendered Commissioner Estill
moved the following order which was
unanimously adopted by the board:
That the county treasurer be notified that
the warrants from the county commissioners
! will continue to be drawn AMI aipnad nv Toh n