Franklin County v. Crow , 128 Ga. 458 ( 1907 )

Cobb, P. J.

(After stating the facts.)

1. In 1873 an act was passed which provided for the establishment of a board of county commissioners of'roads and revenues for the county of Franklin, consisting of three persons; the first incumbents to be appointed by the ordinary, and their successors to be elected by the people. The act declared that the commissioners should be “the legal advisers of the ordinary in all matters relating” to county taxes, public buildings, roads, bridges, and paupers, and “in all county matters generally.” The act further declared: “It shall be the duty of said board of commissioners to audit and allow all claims against the county for extra services rendered by any county officer.” The board was to hold four regular sessions each year, and such special sessions as the •ordinary sliould deem necessary. The ordinary was required to keep the minutes of the proceedings of the board, and provision was made for allowance of compensation for that purpose. Acts •of 1873, p. 253. It is contended that the local act was repealed by the act of September 28, 1881, now contained in §5402 of the Civil Code. The provisions of that section, so far as they appertain to this discussion, are, in substance, that in those counties of the State where the ordinaries are vested with the management of ■county affairs and no provision is made for compensation for this ■service, the ordinaries shall state their respective claims to the .grand juries of the county at the spring term, who may allow the amount claimed, or so much thereof as they may deem right and proper. There is no reference in this act to the particular local ■act under consideration, or to local acts of any character. The question, therefore, is whether the provision of the act of 1873,-allowing the county commissioners of Franklin county to audit and allow claims against the county for extra service of county officers, is repealed by the subsequent general law above referred to.

A general law will not be so construed as to repeal an existing' particular or special law unless it is plainly manifest, from the terms of the general law, that such was the intention of the lawmaking body. Repeals by implication are not favored, and a general later affirmative law does not abrogate an earlier special, law by mere implication. “Having already given its attention to the particular subject, and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a. subsequent general enactment, unless that intention is manifested in explicit language, or there be something which shows that the-attention of the legislature had been turned to the special act, and that the general one was intended to embrace the special pases, within the previous one; or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding-from its operation the cases which have been provided for by the special one.” “The fact that the general act contains a clause-repealing acts inconsistent with it does not diminish the force of - this rule 'of construction.” See Montford v. Allen, 111 Ga. 21, and arithorities cited; 11 Michie’s Digest Ga. Rep. 861. The local act of 1873 was valid at the date of its passage, there being, in the constitution of 1868, no inhibition against -the passage of local laws of this character. When the rule of construction above-referred to is applied to that portion of the act allowing the county commissioners to audit and allow claims against the county for extra service by the county officers, it is manifest that no repeal of this provision was effected by the subsequent general law.

2. By an act approved March 17, 1866, the following item was-, added to the fee bill of ordinaries: “For every order passed where no fees are prescribed, 50.” Acts of 1865-6, p. 40; Code of 1882, §3694. In 1889 the item above referred to in the fee bill of the ordinaries was amended so as to read as follows: “For every order passed where no fees are prescribed, provided that no fees shall Recharged for drawing checks, orders, drafts, or warrants on the county treasurer, fifty cents.” Acts of 1889; p. 76; Civil Code, §4269. In Lumpkin County v. Williams, 89 Ga. 388, it was held that the fee prescribed for the drawing of orders above referred to was for judicial orders, and that the words never did embrace orders drawn by the ordinary on the county treasurer for the pay.rnent of money. In that case it was held that the county, in its corporate name, could maintain suit against the ordinary to recover back the amount paid to him by the county treasurer on orders ■drawn by himself embracing services for drawing orders for money on the treasurer at fifty cents per order; and that this was true as to orders drawn prior to, as well as after, the passage of the act of 1889. Prior to the act of 1889 it might have been within the authority of the county commissioners of Franklin county to audit and allow a claim for extra services, growing out of the drawing of orders ior money on the county treasurer by the ordinary, but since the passage of that act the county commissioners had no authority to allow •any amount for such services. The effect of the act of 1889 is to declare that for this service the ordinary shall not be compensated. It is to be presumed that the General Assembly considered that the fees and compensation derived by the ordinary for other services would be sufficient compensation for'that officer, without allowing any compensation whatever for the ministerial duty imposed upon him in the drawing of orders and drafts on the county treasurer. But, without reference to what might have been the motive of the General Assembly, the language of the act is clear and unequivocal, and the ordinary must perform this service with■out any compensation, either regular or extra. Such is the law. .It therefore appears upon the face of the order of the county commissioners that they have allowed to the ordinary compensation which is not only not authorized by law, but which is in terms prohibited by the law.

3. It has been held, that an order drawn by the ordinary of a ■county on the county treasurer for the payment of a debt due by the county is evidence of an adjudication by the ordinary that the amount stated in the order is due; and that while the treasurer ■can attack the judgment for fraud or mistake, he can not set up want of power in the county authorities to pay the amount specified in the order. Neal Loan & Bkg. Co. v. Chastain, 121 Ga. 500; Shannon v. Reynolds, 78 Ga. 760; Coleman v. Neal, 8 Ga. 560. It can not be claimed that the effect of these decisions is to give to the order of the ordinary more than the sanctity attributed by the law to the judgment of a court of general jurisdiction, even if such, rulings go to the extent of raising the adjudication by the ordinary to such high dignity. When a judgment has been rendered by a court of general jurisdiction and the record is silent as to any fact necessary to give the court jurisdiction, the law presumes that such fact existed; and generally this is a conclusive presumption. Sheppard v. Whitfield, 50 Ga. 311. If the judgment of a court of general jurisdiction appears, upon its face, to have been rendered in a case or proceeding of which the court had no jurisdiction whatever, the judgment is 'absolutely void, and may be so treated whenever and wherever any right is sought to be set up thereunder. Head v. Bridges, 67 Ga. 227 (1); Parish v. Parish, 32 Ga. 653. In the expressive language of Judge Warner, such judgments “carry their death wound on their face.” A .judgment which shows upon its face that it is founded upon a cause of action which is not authorized by law is a nullity. For the stronger reason would a judgment showing upon its face that it was founded upon a cause of action prohibited by law be utterly void. In Bell v. Hanks, 55 Ga. 274, the plaintiff recovered a .judgment against the defendant in 1861. In 1869 the defendant moved to set aside the judgment upon the ground that it had been rendered for the hire of a slave; and the court so ordered. In 1874 the plaintiff moved to set aside the vacating order, upon the .ground that it was bejrond the jurisdiction of the court to pass such an order, it being founded upon a ground unknown to the law. The court sustained this motion, and the Supreme Court affirmed the judgment. ' This decision was by a unanimous bench, .and followed the reasoning in the case of Prescott v. Bennett, 50 Ga. 266, and in the dissenting opinion of 'Judge Warner in Tison v. McAfee, 50 Ga. 284, and Fannin v. Durdin, 54 Ga. 476. In Rawson v. Gregory, 59 Ga. 733, it was also held by a unanimous bench that' an order setting aside a judgment because based on a .slave debt is a mere nullity. It is to be noted tliat in all these cases the judgments thus declared to be nullities, because of facts appearing on the face of the record, were judgments rendered by ■courts of general jurisdiction. We can add nothing to the reasoning of Judge Warner as appears in the dissenting opinions, which were afterwards adopted and followed, and in the other opinions rendered by him when he was speaking for the court.

4. When the principles above referred to are applied in the present ease, it is apparent that the defendant can /derive no benefit whatever from the orders of the county commissioners allowing him compensation for drawing orders and drafts on the county treasurer. Upon the face of each order appears the purpose for which it was drawn; and the county commissioners have therefore' rendered a judgment in the plaintiff’s favor not only upon a cause' of action unauthorized, but upon an alleged cause of action of which they are expressly prohibited from entertaining jurisdiction. If the orders had been silent as to the items, it may be that a presumption might have been indulged that the county commissioners had kept within their jurisdiction, and that the extra compensation was , allowed for a lawful purpose. But when it appears upon the face of the order that the extra compensation was allowed for a service for which the law says there shall be no compensation allowed, the order can not be otherwise treated than as a nullity, for the reason that it is beyond the jurisdiction of the tribunal passing it. The court erred in directing .a verdict for the defendant. Judgment reversed.

All the Justices concur.