Clarke v. Levy

45 Ga. 498

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

McCay, Judge.

It is very evident that it was the intent of the Legislature, by the Act of 1870, to put the education fund of counties, so far as it came from the State fund, into other hands than the hands of the Ordinary, and it would be no unfair assumption to say that, as it can hardly be supposed it was intended there should be two disbursers of the educational fund, the presumption is that the change was intended to apply also to any fund the counties might raise. But we think section 378 of the Code, making the Ordinary the treasurer is inconsistent with the Constitution of 1868. That instrument makes the Ordinary, in effect, the general manager of the county affairs. It clothes him with the powers and casts upon him the duties of the Justices of the Inferior Court. It would be the duty of the Ordinary to take a bond from the disburse!’ of this fund. Perhaps, also, it would be his duty to' issue execution against him and his securities for it, if the fund was misapplied. Can he take a bond from himself? Can he perform towards and against himself the duties of the office he holds ? We think not. His duties as Ordinary are inconsistent with any such position as disburser of this fund, and this section of the Code fell with the adoption of the Constitution of 1868. The County Treasurer is the proper holder of county monies, and as no other person is specially pointed out, we think the disbursement of the fund belongs to his office.

Judgment reversed.