You are here

Unofficial Opinion 97-21

Unofficial Opinion 97-21

June 23, 1997
To: 

Executive Director
Georgia Indigent Defense Council

Re: 

When sheriffs hold cash bonds, and when clerks of superior court, state court and magistrate court hold funds paid in for security or judicial disposition, the funds must be placed in interest-bearing trust accounts, and the interest must be remitted to the Georgia Indigent Defense Council unless otherwise provided by law.

You have requested clarification as to when interest earned on funds deposited into the registry of courts or held by law enforcement agencies must be remitted to the Georgia Indigent Defense Council.

Code Section 15-6-76.1, in pertinent part, instructs clerks of superior court as follows:

(e) When funds have been paid into the registry of the court and the order of the court relating to such funds does not state that such funds shall be placed in an interest-bearing trust account for the benefit of one or more of the parties, the clerk shall deposit such funds in an interest-bearing trust account and the financial institution in which such funds are deposited shall remit, after service charges or fees are deducted, the interest generated by said funds directly, at least quarterly and within 30 days of receipt, to the Georgia Indigent Defense Council for distribution to the counties pursuant to Article 2 of Chapter 12 of Title 17.

With respect to state and magistrate courts, the pertinent language is essentially identical:

When funds are paid into the court registry, the clerk shall deposit such funds in interest-bearing trust accounts and the interest from those funds shall be remitted to the Georgia Indigent Defense Council in accordance with the provisions of subsections (c) through (g) of Code Section 15-6-76.1.

O.C.G.A. §§ 15-7-49, 15-10-240.

With respect to cash bonds held by sheriffs, the instruction is like that for the magistrate and state courts:

(e) Unless transferred to the appropriate clerk of court, the sheriff shall deposit cash bonds held by the sheriff in one or more interest- bearing trust accounts in investments authorized by Code Section 36-80-3 or by Chapter 83 of Title 36.

(f) The financial institution in which the funds are deposited shall remit, after service charges or fees are deducted, the interest . . . to the Georgia Indigent Defense Council for distribution to the counties pursuant to Article 2 of Chapter 12 of Title 17.

O.C.G.A. § 15-16-27.

These four Code Sections are the only provisions for remitting interest to the Council. The cardinal rule of statutory interpretation is to ascertain the intent of the General Assembly, giving words their ordinary signification unless they are words of art or words connected with a particular trade or subject matter. O.C.G.A. § 1-3-1. It is also fundamental that the duties and powers of public officers and agencies are limited to those defined by law. O.C.G.A. § 45-6-5; Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922).

In accord with these basic rules, the duty to create and remit interest under Code Section 15-16- 27 applies only to cash bonds held by sheriffs. The requirement does not apply to all funds held by sheriffs or to any funds held by other law enforcement agencies.

With respect to clerks of superior, state and magistrate courts, the duty to create and remit interest to the Council arises, "when funds are paid into the court registry." With respect to superior court, the general condition is expressly qualified: The court may order at any time that "such funds shall be placed in an interest-bearing trust account for the benefit of one or more of the parties." The general condition is also further explained as follows:

This subsection shall include but not be limited to cash supersedeas bonds for criminal appeal, other supersedeas bonds, and bonds or funds paid into the court registry in actions involving interpleader, condemnation, and requests for injunctive relief.

O.C.G.A. § 15-6-76.1(e).

The words, "shall include but not be limited to," ordinarily introduce illustrations or a minimum scope of a larger possibility. That is, the clause enlarges rather than confines. See Brassell v. State, 259 Ga. 590, 591 (1989); Georgia Farm Bureau Mutual Ins. Co. v. Joiner Int'l, Inc., 177 Ga. App. 233, 234 (1985). Therefore, the bonds or funds in superior court registry do not have to be specifically one of the items listed in Subsection (e) for the Council to receive the interest. On the other hand the list does serve to illustrate the kinds of funds meant by "funds . . . paid into the registry of the court." See NBA v. Sports Team Analysis and Tracking Systems, Inc., 939 F. Supp. 1071, 1092 (S.D.N.Y. 1996) (acknowledging that "including" is expansive but applying rule that express listing implies exclusion of inconsistent, unlisted items). The illustrations in Code Section 15-6-76.1 are consistent with the common import of "paid into the court registry." Those words ordinarily refer to situations when funds are placed into the custody of the clerk for judicial disposition, sometimes contingently as in a supersedeas bond. They do not refer to situations when funds are paid to the clerk as liquidated amounts owed to government, such as fees, fines and taxes. As a specific illustration, a cash bond is subject to the interest requirement until it is forfeited.

As noted, the shorter provisions applicable to clerks of state court and magistrate court instruct the clerks to generate interest for the Council "in accordance with . . . subsections (c) through (g) of . . . 15-6-76.1." Therefore, the general distinction just drawn in the preceding paragraph applies as well to funds held by these clerks. Also, the incorporation of Subsection (e) also brings in the express power to direct the interest to the parties, although the narrower jurisdiction of these courts makes its application less likely to be authorized or appropriate.

Finally, even if a fund is deposited into the registry for judicial disposition, the possibility exists that other Code provisions concerning a particular registry deposit may override the general instruction of the Subsection. There appears to be at least one such instance, in condemnations conducted under the "declaration by taking" procedures of the Transportation Code. In such "quick takings," the condemnor must deposit funds into the registry upon the filing of the petition and declaration of taking, also upon an additional award by a special master, and upon an additional award by final judgment after appeal to a jury. O.C.G.A. §§ 32-3-6, -7, -15, -19. Subsection (d) of Section 32-3-19 contains the following admonition:

No sum so paid into the court shall be charged with commissions or poundage.

Two questions arise regarding this admonition: First, does the requirement to pay interest to the Council constitute "commissions or poundage?" Second, does the phrase "so paid into the court" apply to all deposits as it appears, or only to the "deposit made at the time of taking," under the ruling in State Highway Dep't v. Rogers, 118 Ga. App. 626 (1968)?

With regard to the meaning of "commissions or poundage," "poundage" appears only this once in the Georgia Code, and I am not aware that its meaning has been defined by a Georgia court in this context. However, a sentence like the quoted Subsection appears in other condemnation statutes outside Georgia, e.g., the federal statute, 40 U.S.C. § 258a. The reference to "commissions" signifies a payment due a government officer or agent as a part of the proceeding. "Poundage" is an old word in the law, which originally meant the payment due the sheriff for carrying out an execution. However, its use has evolved such that it may be understood in the same general vein as "commission," and both may refer to funds collected for the general operation of the court system, i.e., not necessarily to personal compensation. Therefore, the prohibition against poundage and commissions appears to apply to remittance of interest to the Council. See City of Pittsburgh v. Imler Supply Co., 471 A.2d 591 (Pa. 1984); State Highway Dep't v. Smith, 219 Ga. 800 (1964); Liquifin Aktiengesellschaft v. Brennan, 446 F. Supp. 914, 918-920 (S.D.N.Y. 1978); Imbach v. Deegan, 117 A.2d 864, 869 (Md. 1955).

The clause, "so paid into court," was construed as it appeared in an earlier highway condemnation statute, in State Highway Dep't v. Rogers, 118 Ga. App. 626 (1968). The issue there was not poundage, but interest owed to owners on the judgment, more particularly whether credit was allowed for interlocutory deposits. The court held that "so paid into court" referred to the initial deposit only. However, the statutory language has since changed, and it is clear in the context of present Code Section 32-3-19 that Subsection (d) refers to all deposits. See Imbach v. Deegan, 117 A.2d 864, 869 (Md. 1955). Therefore, in declarations by taking under Title 32, no interest on any deposits by condemnors should be paid to the Council.

There is no similar prohibition in the eminent domain proceedings of Title 22, and interest on deposits in those proceedings should be remitted to the Council.

Therefore, it is my unofficial opinion that when sheriffs hold cash bonds, and when clerks of superior court, state court and magistrate court hold funds paid in for security or judicial disposition, the funds must be placed in interest-bearing trust accounts, and the interest must be remitted to the Georgia Indigent Defense Council unless otherwise provided by law. Appendix "A" is a list of statutory provisions which meet the test. Appendix "B" is a list of statutory provisions which do not. The lists address situations specifically identified by you for clarification and other instances, but the examples are not represented to be complete. Please let me know if I may be of further assistance.

Prepared by:

JOHN B. BALLARD, JR.
Senior Assistant Attorney General


APPENDIX "A"

DEPOSITS WHICH ARE SUBJECT TO O.C.G.A. §§ 15-6-76.1, 15-7-49, 15-10-240, or 15-16-27

Examples Regarding Funds Held by Clerks

3-10-11(e) Funds deposited as forthcoming bond or eventual condemnation money bond for possession of vehicle seized as alleged contraband for illegal conveyance or storage of distilled spirits.

3-10-11(f) Funds deposited as settlement value of vehicle seized as alleged contraband for illegal conveyance or storage of distilled spirits.

4-3-8(b) Funds deposited as proceeds of sale of livestock running at large or straying.

5-3-22(b) Funds deposited for supersedeas bond given as security on appeal.

5-4-20 Funds deposited for supersedeas bond given on writ of certiorari to magistrate court for review of conviction of criminal or quasi-criminal offense or violation of any ordinance.

5-6-45 Funds deposited for supersedeas bond on appeal by person convicted of crime.

5-6-46 Funds deposited for supersedeas bond on appeal in civil cases.

9-11-22 Funds deposited in interpleader.

12-4-48 Funds deposited as settlement value in forfeiture or condemnation proceedings against illegal minerals or products after violation of law concerning deep drilling for oil, gas and other minerals.

15-10-203 Funds deposited as no contest cash bonds in deposit account fraud prosecutions in magistrate court.

16-13-49(l)(2) 16-13-49(q)(5) Funds deposited upon sale of property seized in connection with violation of controlled substance law.

16-14-14(d)(2), (3) Funds deposited as security for release of RICO lien or resulting from sale of real property or beneficial interest pursuant to lien.

18-4-47 Funds deposited in garnishment pending final judgment.

18-4-64 Funds deposited in post-judgment garnishment.

22-2-107 Payment of the amount awarded by a special master in condemnation (not under Transportation Code).

22-2-138 Payment of the amount of the award or verdict after proceedings before the court upon appeal from a special master's decision in condemnation (not under Transportation Code).

23-3-1 23-3-2 Funds paid into the registry for restitution. [See Southern Ry. Co. v. Lawson, 256 Ga. 798, 799 (1987); Dean v. Goings, 184 Ga. 698, 699 (1937).]

23-3-90 Funds paid into the registry in equitable interpleader.

24-10-60 Funds deposited as security for payment of costs and expenses of bringing prisoner as witness in civil trial.

27-4-137 Funds deposited as settlement value for contraband seized for alleged violation of seafood fishery laws.

40-6-391.2(e) Funds deposited as bond for security or as proceeds of sale or lease of motor vehicles seized after operation by habitual violator.

44-6-168 Funds deposited after the sale of lands in statutory partition.

44-7-53 44-7-75 Funds deposited by tenants in distress and dispossessory proceedings.

44-9-47 Funds paid as compensation for condemnation of private way.

Examples of Cash Bonds Held by Sheriffs

17-6-4 Cash bonds posted in criminal cases; see also 17-6-1 (bond generally) and 17-6-2 (misdemeanor cases).

17-6-5 Cash bonds for violations of laws pertaining to traffic, motor vehicles, motor common carriers, motor contract carriers, road taxes on motor carriers, game, fish, boating, or litter.

Uniform Superior Court Rule 27 Ten percent ("10%") bail under Pre-Trial Release Program.

APPENDIX "B"

EXAMPLES OF DEPOSITS WHICH ARE NOT SUBJECT TO REMITTANCE OF INTEREST TO GEORGIA INDIGENT DEFENSE COUNCIL

15-11-56.1 Payment of supervisory fee to clerk of juvenile court (because Indigent Defense provisions pertain only to clerks of magistrate, state and superior courts and sheriffs holding cash bonds).

17-14-31 Funds held by Board of Corrections in escrow for victims of crime in regard to contracts with persons accused or convicted of crime regarding its reenactment or the thoughts of the person accused or convicted (same).

29-2-85 Funds deposited with probate court by guardian seeking letters of dismission or any other probate court deposit (same).

32-3-6, -7, -15, -19. Deposits into the registry in "declaration of taking" condemnations under the eminent domain powers of the Transportation Code (protected by 32-3-19(d)).

42-8-34.1(d) 42-8-100 Payment of fines, restitution, reparation, or costs paid by probationer to clerk (because funds are liquidated obligations pursuant to sentence and are not deposited for a judicial disposition) or to probation officer (same, plus Indigent Defense provisions pertain only to clerks of magistrate, state and superior courts and sheriffs holding cash bonds).

48-6-6 Funds paid as real estate transfer taxes (not deposited for judicial disposition).