Swift v. Van Dyke , 98 Ga. 725 ( 1896 )

Lumpkin, Justice.

Whenever the General Assembly expressly undertakes to amend or repeal an existing statute or section of the code, it must comply with the provisions of par. 17, sec. 7, art. 3, of the constitution, which declares that “no- law, or section of the code, shall be amended or repealed by mere reference to its title, or to the number of the section of the code) but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.” Oode, §5076. It by no means follows, however, that it is not within the constitutional power of the General Assembly to pass a general law which may incidentally affect or modify an existing law, although it is neither referred to nor described in the new act. Indeed, it would be difficult, if not impossible, to pass any general law of a wide and comprehensive scope without in some way affecting some law or laws already in existence. What is known as the pleading act of 1893 is an instance in point. This act absolutely did away with many sections of the code, though it mentions none by number. Another illustration is to be found in the act of 1895, prescribing penalties for all felonies under the .laws of this State (except those specially designated in the act), and further providing that all misdemeanors shall be punished as prescribed in section 4310 of the code. This law makes the most sweeping changes in our punitive system, and yet it does not even remotely refer to a single •statute or section of the code, save only the one just mentioned, and does not undertake to describe it except by number. These illustrations might be multiplied, but the two given suffice for the present purpose.

If the above quoted paragraph of our constitution is to be construed as absolutely forbidding all repeals by implication, these two acts, and many others, would necessarily, to some extent at least, be unconstitutional. This •court, in the past, has more than once intimated a doubt as to whether, under the constitution of 1877, repeals by implication existed at all in this State. (We are aware that such repeals are not favored; but after most deliberate reflection, have been unable to bring ourselves to the conclusion that the constitutional convention ever intended to make it impossible, by any sort of legislation, to alter ■or repeal an existing law without fully describing it. We •cannot believe that the framers of our organic law desired or intended thus to hamper legislation. To hold that they did would result in the most serious embarrassment, and place almost insurmountable obstacles in the way of wise and beneficial legislation. Our present view is supported by the decision in the case of Peed v. McCrary, 94 Ga. 488. There was no opinion filed in that case; but in reaching the •conclusion there announced, this court was influenced by the considerations above expressed. In this connection •see, also, Johnson v. Southern Mutual Building & Loan Ass’n, 97 Ga. 622, 25 S. E. Rep. 359, recognizing the correctness of the decision pronounced in Peed v. McCrary. And see Bagwell v. Town of Lawrenceville, 94 Ga. 654.

In 1889 the General Assembly passed an act “to provide for the time and mode of perfecting service by publication.” Acts of 1889, p. 111. This act was amended in. 1891. Acts of 1890-91, vol. 1, p. 110. The original act is sufficiently comprehensive in its terms to include proceedings for the foreclosure of mortgages on realty, and we have no difficulty in holding that section 3962 of the code, though neither mentioned nor referred to in either of the above cited acts, was so far modified by them as to mate it lawful to perfect service upon a non-resident mortgagee by publication twice a month, for two months, .in compliance with the terms of these acts.

This brief discussion covers 'all the questions made in the present case which can be considered without reference to the evidence; and as the same was not legally brought to this court, we will not examine it for the purpose of ascertaining whether or not errors were committed.

Judgment affirmed,.