
    22771, 22783.
    State Revenue Commission v. National Biscuit Company; and vice versa.
    
    Decided August 21, 1934.
    
      Lawrence 8. Camp and M. J. Yeomans, attorneys-general, T. B. Gress, F. A. Holden, W. K. Meadow, B. D. Murphy, and J. T. Goree, assistant attorneys-general, for plaintiffs in error.
    
      Jones, Johnston, Bussell & Sparks, Colquitt, Parker, Troutman & Arkwright, Bobert S. Sams, Manon Smith, contra.
   Jenkins, P. J.

Under answers by the Supreme Court to questions certified to it by this court (State Revenue Commission v. National Biscuit Co., 179 Ga. 90 (175 S. E. 368), as to the main bill of exceptions, the Revenue Commission had legal authority to make the tax assessment and issue the execution, and the trial court erred in dismissing the levy and execution upon the theory that the commission was without such authority. But under such answers, the trial court correctly held that the penalty included in the execution was illegal. Since, however, such excess did not invalidate the entire claim, but required only a partial abatement or amendment (see Civil Code, 1910, §§ 5697, 5698; Winn v. Butts, 127 Ga. 385 (2), 388, 56 S. E. 406; Roberts v. Dancer, 144 Ga. 341 (2), 87 S. E. 287; Glynn County v. Dubberly, 22 Ga. App. 603, 96 S. E. 992), a dismissal of the execution for this reason was unauthorized. As to the cross-bill of exceptions, brought by the defendant in execution, the trial court did not err in its ruling sustaining' the commission’s demurrer to other grounds in the affidavit of illegality.

Judgment reversed on the maim, bill of exceptions, and affirmed on the cross-bill.

Stephens and Sutton, JJ., concur.  