State Highway Dept. of Ga. v. Bass , 197 Ga. 356 ( 1944 )

1. On the question as to whether the act of March 20, 1943 (Ga. L. 1943. p. 401), amending the workmen's compensation law, so far as it provides for compensation for past accidents of employees who had been employed in a department of the State that had previously to the amendment operated under the workmen's compensation law, is unconstitutional as being a retroactive law under article 1, section 3, paragraph 2, of the constitution of Georgia (Code, § 2-302), the members of this court are equally divided in opinion, and therefore, as to this point, the judgment of the trial court holding the act valid as against such attack stands affirmed by operation of law.

2. The act above referred to is not unconstitutional, as seeking to amend or repeal a section of the code by reference to the number of the section, and without describing the law to be repealed and the alteration to be made, as provided in article 3, section 7, paragraph 17, of the constitution of Georgia (Code, § 2-1817).

3. The act above referred to is not unconstitutional, as being a grant of a donation or gratuity in violation of article 7, section 16, paragraph 1, of the constitution of Georgia (Code, § 2-6401).

4. The act above referred to is not unconstitutional as contravening article 3, section 7, paragraph 11, of the constitution of Georgia (Code, § 2-1811), providing that no money shall be drawn from the treasury except by appropriation made by law.

(a) Nor is it a void statute by reason of the fact that the budget commission has not set apart any funds for the purposes therein provided.

5. In view of the foregoing it is unnecessary to determine whether the State Highway Department was an employer, as defined by the workmen's compensation law (Code, § 114-101), before the act of 1943 (Ga. L. 1943, p. 401).

No. 14709. FEBRUARY 15, 1944. The defendant in error, Forehand S. Bass, was an employee of the State Highway Department of Georgia on December 16, 1942, and in the course of his employment suffered an accidental injury which rendered him totally incapacitated to earn money. In an agreed statement of facts the case was submitted to the State Board of Workmen's Compensation. Under this statement it is admitted that Bass is entitled to an award if the State Highway Department of Georgia was subject to the workmen's compensation act (Code, § 114-101), as it existed on the date of his injury, to wit, December 16, 1942; or if by the amendment of the workmen's compensation law as provided by the act approved March 20, 1943 (Ga. L. 1943, p. 401), his injury was covered. It was further agreed that before February 1, 1943, the State Highway Department was paying compensation to its employees under the workmen's compensation law of Georgia, at which time it ceased all payments by reason of an opinion of the attorney-general holding such payments to be illegal.

When the case was presented to the State Board of Workmen's Compensation, the State Highway Department filed a motion to dismiss the claim on specified grounds that will be hereinafter enumerated. The motion was granted, and the claim was denied and dismissed. To this order an application for appeal to the superior court of Dodge County was filed and allowed. On the hearing of the appeal before the judge of the superior court of Dodge County, the State Highway Department sought to have the appeal dismissed on the same grounds it had procured the denial and dismissal of the claim before the State Board of Workmen's Compensation.

The workmen's compensation law as it appeared before the act of 1943 (Ga. L. 1943, p. 401), was in part as follows: "Unless the context otherwise requires: ``employer' shall include any municipal corporation within the State, and any political division thereof, and any individual, firm, association or corporation engaged in any business operated for gain or profit, except as hereinafter provided, and the receiver or trustee of the same, and the legal representative of a deceased employer, using the service of another for pay. If the employer is insured this term shall include his insurer as far as applicable. ``Employee' shall include every person in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer and, except as hereinafter provided, minors are included even though working in violation of any child labor law or other similar statute: provided, that nothing herein contained shall be construed as repealing or altering any such law or statute. Any reference to an employee who has been injured shall, when the employee is dead, include also his legal representatives, dependents and other persons to whom compensation may be payable, pursuant to the provisions of this law." Code, § 114-101.

The act of 1943 (Ga. L. 1943, p. 401), reads as follows: An act to amend section 114-101 of the Code of Georgia of 1933 by adding thereto a provision that all employees of the State of Georgia shall be placed under the workmen's compensation laws of Georgia; to provide that the provisions of this act so far as concerns the State of Georgia, and all departments thereof shall include all compensable accidents which occurred on, before, or after February 1, 1943; to ratify and confirm any and all payments heretofore made by any department of the State of Georgia under the terms of the workmen's compensation law and to provide for the continued payment of all awards heretofore made which have been discontinued by reason of the said State not being included in the definition "employer" in the original act; to provide that if any section of this act is declared to be unconstitutional, the remainder shall not be affected; and for other purposes.

Be it enacted by the General Assembly of Georgia and it is hereby enacted by authority of the same:

Section 1. That section 114-101 is hereby repealed in its entirety and a new section added in lieu thereof to read as follows: "employer" shall include the State of Georgia and all Departments thereof, any municipal corporation within the State, and any political division thereof, and any individual, firm, association or corporation engaged in any business operated for gain or profit, except as hereinafter provided, and the receiver or trustee of the same, and the legal representative of a deceased employer, using the service of another for pay. If the employer is insured this term shall include his insurer as far as applicable. "Employee" shall include every person in the service of another under any contract or (of?) hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer and, except as hereinafter provided, minors are included even though working in violation of any child labor law or other similar statute: provided, that nothing herein contained shall be construed as repealing or altering any such law or statute. Any reference to any employee who has been injured shall, when the employee is dead, include also his legal representatives, dependents and other persons to whom compensation may be payable, pursuant to the provisions of this law.

Section 2. That a new section be added to the Georgia Code of 1933 immediately following section 114-101, to be known as section 114-101A which said new section shall read as follows: Section 114-101A. So far as concerns the State of Georgia or any department thereof which has been operating under the terms of the workmen's compensation law, said State and such departments thereof shall be deemed to have been included in the original act under definition of "employer." Any payments heretofore made under awards of the Industrial Board to State employees are hereby ratified and confirmed and any payments of awards which were being made by the State or any of its departments on or before February 1, 1943, but discontinued on account of the State and its departments not being included in the definition of "employer" shall be resumed as of the date of discontinuance, and compensable accidents which occurred prior to the passage of this act for which awards were not made but for which awards are hereafter made, shall be paid by said State or the departments thereof in the same manner as other awards heretofore or hereafter made.

Section 3. Should any portion of this act be declared to be unconstitutional such declaration shall not void the remainder of this act, but such portions as are not specifically declared to be unconstitutional shall continue in full force.

Section 4. All laws and parts of laws in conflict with the provisions of this act are hereby repealed.

The grounds of the motion to dismiss the appeal were substantially as follows:

1. The injury occurred December 16, 1942, and since the State Highway Department, the employer, is not included in the definition of the term "employer" as defined by the Code, § 114-101, of force on the date of the injury, the employer is not subject to the provisions of the workmen's compensation act.

2. Although the act approved March 20, 1943 (Ga. L. 1943, p. 401), undertakes to subject the State Highway Department to liability for injuries occurring prior to passage of the act, because the State Highway Department previously and without authority of law for a number of years prior thereto, had been operating under the terms of the workmen's compensation law, the State Highway Department is not liable because the act is retroactive and in violation of article 1, section 3, paragraph 2, of the constitution of Georgia (Code, § 2-302), as follows: "No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed."

3. The State Highway Department can not be held liable for injury to its employees, regardless of the date of injury, because the act approved March 20, 1943 (Ga. L. 1943, p. 401), is the sole authority authorizing such liability, and the act is void because the same in both its caption and by its provisions seeks to repeal and amend the Code, § 114-101, by mere reference to the number of the Code section, the amending and repealing act failing to distinctly describe the law to be amended, as well as the alteration to be made, in violation of article 3, section 7, paragraph 17, of the constitution of Georgia (Code, § 2-1817), as follows: "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."

4. The State Highway Department can not be held liable for injury to its employees, regardless of the date of injury, because payment of workmen's compensation is in violation of article 7, section 16, paragraph 1, of the constitution of Georgia (Code, § 2-6401), as follows: "The General Assembly shall not, by vote, resolution or order grant any donation or gratuity, in favor of any person, corporation or association."

5. The State Highway Department can not be held liable for injury to its employees, regardless of the date of injury, because no appropriation has been made by the legislature to pay such compensation, nor has the budget commission set apart any funds for such purpose.

6. The State Highway Department can not be held liable for injury to its employees, regardless of the date of injury, because no appropriation has been made by law for such purpose, and payment in the absence of such appropriation, is in violation of article 3, section 7, paragraph 11, of the constitution of Georgia (Code, § 2-1811), as follows: "No money shall be drawn from the Treasury except by appropriation made by law, and a regular statement and account of the receipts and expenditure of all public money be published every three months, and, also, with the laws passed by each session of the General Assembly."

The motion contained a prayer that the claim be dismissed.

On the hearing of the appeal the judge passed the following order: "It appears the plaintiff employee comes within the workmen's compensation law and that it was therefore contrary to law to dismiss his claim. It is therefore ordered that the decree of the State Board of Workmen's Compensation, entered by its director, Frank L. Forester, July 5, 1943, dismissing the claim of said employee in said case be and the same is hereby set aside. It is further ordered that the said case be hence remanded on the State Board of Workmen's Compensation for consideration on the merits of the claim."

To the granting of this order the State Highway Department excepted. 1. This case presents two general questions, to wit: (a) Under the workmen's compensation law, before the amendment of March 20, 1943 (Ga. L. 1943, p. 401), was an employee of the State Highway Department on December 16, 1942, included under its terms? (b) Was the amendment to the workmen's compensation law approved March 20, 1943 (Ga. L. 1943, p. 401), unconstitutional? We will consider first whether the amendment of March 20, 1943, was unconstitutional for any reason assigned.

The second ground of the motion to dismiss presents the contention that in so far as the act undertakes to subject the State Highway Department to liability for injuries occurring before the passage of the act it is unconstitutional as being a retroactive statute enacted in violation of article 1, section 3, paragraph 2 of the constitution of Georgia (Code, § 2-302), providing that, "No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed." On the question as to whether the act is unconstitutional on the ground thus asserted the members of this court are equally divided in opinion, Bell, Chief Justice, Atkinson and Wyatt, Justices, being of the opinion that it is not subject to such attack, and Jenkins, Presiding Justice, Grice and Duckworth, Justices, being of the contrary opinion. The views of the latter are expressed in an opinion prepared by Justice Duckworth, concurred in fully by Justice Grice, and concurred in as to this point only by Presiding Justice Jenkins, and delivered herewith. The views of Bell, Chief Justice, Atkinson and Wyatt, Justices, are as follows:

A retroactive, or retrospective statute is not unconstitutional unless it affects vested rights or interests. In the case of Pritchard v. Savannah Street c. Railroad Co.,87 Ga. 294 (13 S.E. 493, 14 L.R.A. 721), it was stated: "The constitution of 1865 forbade the passage of ``retroactive laws, injuriously affecting any right of the citizen.' No provision against retroactive legislation appears in the constitution of 1868. That of 1877 forbids the passage of a ``retroactive law.' Construing together the above constitutional provisions, . . we take it that they all amount to substantially the same thing, and mean that retroactive laws which do not injuriously affect any right of the citizen . . may be passed." [Italics ours.] This decision was approved and reaffirmed in Baker v. Smith,91 Ga. 142 (16 S.E. 967), and in Bacon v. Mayor Aldermen ofSavannah, 105 Ga. 62 (31 S.E. 127). In Mills v. Geer,111 Ga. 275, 280 (36 S.E. 673, 52 L.R.A. 934), and in Hammack v. McDonald, 153 Ga. 543 (113 S.E. 83), the quotation fromPritchard v. Savannah Street c. Railroad Co., supra, is again quoted and approved, with this comment: "That instrument simply strikes at such retrospective legislation as injuriously affects some substantial right of the citizen." (Italics ours.) Again in Bullard v. Holman, 184 Ga. 788, 792 (193 S.E. 586, 113 A.L.R. 763), in referring to the above cases, it is said: "In the rulings just cited this court has definitely settled the law to be that our constitution forbids the passage of only those retroactive, or rather retrospective, laws which injuriously affect the vested rights of citizens." (Italics ours.)

There is authority to the effect that the right of the State, as distinguished from the right of a citizen, may be impaired by retrospective laws. "The State may constitutionally pass retrospective laws impairing its own rights." 12 C. J. 1087, § 781. The rights of the State may be impaired by retrospective laws. 16 C. J. S. 861, § 417. "The State may constitutionally pass retrospective laws waiving or impairing its own rights, . . and it may impose upon itself . . new liabilities with respect to transactions already past, despite a constitutional prohibition." 16 C. J. S. 864, § 417. "A state, however, may constitutionally pass a retroactive law which impairs its own rights." 11 Am. Jur. 1195, § 366.

In addition to the foregoing authority, the instant case is controlled by the principle decided in Cannon v. Rowland,34 Ga. 422, and Lewis v. Turner, 40 Ga. 416. In order to analogies these cases with the instant case it is well to digress here and review the circumstances and conditions at the time of these decisions, and the legal principle involved therein.

By the act approved March 5, 1856 (Ga. L. 1855-1856, p. 154), railroad companies were made liable for personal injuries to employees by reason of negligence of other employees. In 1857, in the case of Walker v. Spullock, 23 Ga. 436, a wife sought to recover damages for the death of her employee-husband for carelessness of other employees, and the court held that the Western and Atlantic Railroad was not a "Railroad Company," but property belonging to the State and administered by agents of the State, and was not liable under the act of 1856. Subsequently on December 19, 1860 (Ga. L. 1860, p. 24), the legislature adopted a Code which by the act approved December 16, 1861 (Ga. L. 1861, p. 28), was not to be effective until January 1, 1863. In this Code, by § 889, the Western and Atlantic Railroad, known as the State Road, was put upon the same basis as other railroads in reference to injuries by fellow servants. On April 18, 1863, the legislature passed an act (Ga. L. Ex. Sess. 1863, p. 182), stating that the compilers of the Code had failed to embrace therein the laws in relation to the liability of the Western and Atlantic Railroad for damages in operating trains, and provided that laws creating liability for other railroads in operating trains would apply equally to the Western and Atlantic Railroad; and further provided that all suits brought against said railroad since the adoption of the Code (December 19, 1860), were to be legal and valid.

The apparent inconsistency in the foregoing statements that the Code of 1863, by § 889, contained certain law in reference to the Western and Atlantic Railroad, and that the act of 1863 (Ga. L. Ex. Sess. 1863, p. 182), stated that the Code had failed to embrace this law, may be accounted for by reason of the fact that the Code of 1863, § 889, though it provided that the Western and Atlantic Railroad was put on the same basis as other railroads in reference to injuries to fellow servants, it did not include the additional provision as provided in the act, that all suits brought against said railroad since the adoption of the Code (December 19, 1860), were declared to be legal and valid. Anyway, the act of April 18, 1863 (Ga. L. Ex. Sess. 1863, p. 182), though it reiterated and re-enacted § 889 of the Code of 1863, did go further and make the additional provision respecting the status of suits then existing against the railroad.

In March 1863, a widow brought a suit against the superintendent of the Western and Atlantic Railroad for the homicide of her husband, an engineer, who was killed in a collision in July, 1862. In this case, Cannon v. Rowland, supra, the court held: "That under the provisions of the act of 18th April, 1863, the action is maintainable."

This question was again before the court in Lewis v.Turner, supra. In that case, a suit for damages by an employee on account of negligence of a fellow servant, the accident happened July 8, 1859, and suit was filed in April, 1861. In the opinion it was said: "This suit was pending at the date of the act of 1863, and was brought after the adoption of the Code, and is, therefore, included in that act, although when the wrong was done no such suit could by law have been brought against this road. It is a retroactive statute in terms. The Western Atlantic Road belongs to the State, and it is no infringement of any private right for the legislature to pass such a retroactive law. The State is the real party; the suit is nothing but a mode provided by law to ascertain what the State owes the citizen, on the principle that applies to private persons."

The legislature of 1943, was in almost an identical situation as the legislature of 1863. Each desired to assume liabilities and provide compensation for past occurrences. By a part of the act of 1943 the General Assembly provided compensation for past accidents of employees who had been employed in a department of the State that had previously to the amendment operated under the workmen's compensation law. The legislature of 1863 assumed liability for certain accidents in the operation of the State Railroad, which occurred prior to the act, and for which suit was brought after December 19, 1860.

It is well recognized in this State, and in other jurisdictions which have a constitutional provision against the passage of retroactive laws, that such inhibition does not apply to laws curing defects in the remedy, or conferring rights already existing, or adding to the means of securing and enforcing the same, and the reason assigned for the non-application of the rule against retroactive laws in such instances is based upon the fact that no one, — no individual, no citizen, has a vested right in a mode of procedure, or a remedy. It will be noted that such laws are, in fact, retroactive but are recognized as valid because they do not injuriously affect the rights of citizens, — the citizens having no vested right in a mode of procedure or a remedy.

To apply the constitutional provision against "retroactive laws," as meaning any retroactive law, rather than those which "injuriously affect the right of citizens," would be contrary to the many decisions of this court holding that remedial laws, even though retroactive, are valid; as the reason for holding these laws to be constitutional is based on the fact that there is no vested right of the citizen involved.

This court in Cannon v. Rowland, and Lewis v. Turner, supra, having held that a law authorizing the creation of liability against the State covering past occurrences on a railroad was not unconstitutionally retrospective, we are of the opinion that that part of the act of 1943 providing for compensation for accidents that occurred prior to the adoption of the act is not unconstitutional as being a retroactive law under article 1, section 3, paragraph 2, of the constitution of Georgia (Code, § 2-302). In further support of this view we may call attention to the case of New Orleans v. Clark, 95 U.S. 644,24 L. ed. 521, where, in construing the constitution of the State of Louisiana, which contained a provision "that no retroactive law shall be passed," the United States Supreme Court held: "The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the State, or of any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion." (Italics ours.) See also Cullman Countyv. Blount County, 160 Ala. 319 (49 So. 315, 18 Ann. Cas. 322). where the Supreme Court of Alabama in passing upon the constitutional inhibition against retroactive legislation in the constitution of that State, held that it applied to such retroactive legislation as injuriously affected individuals. The act here in question was in the nature of curative legislation. In Bass v. Columbus, 30 Ga. 845, 852, it was said: "The end of all confirmatory laws, so far as they are retroactive, is to give effect to acts which were before inoperative. Our digests abound with statutes confirming the void acts of public officers and others occupying some fiduciary relation, and that such is the proper effect of such laws, was adjudged by the Supreme Court of the United States in the case of Wilkinson v. Leland, 2 Peters, 662." See also Georgia Railway Electric Co. v.Decatur, 29 Ga. App. 653 (6) (116 S.E. 645).

The decisions relied upon by the plaintiff in error in Bankof Norman Park v. Colquitt County, 169 Ga. 534 (150 S.E. 841), and Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (193 S.E. 770), do not in our opinion rule anything contrary to the views above expressed. The case of Ross v. Lettice,134 Ga. 866 (68 S.E. 734, 137 Am. St. R. 281), was in effect a suit against a county and did not involve a claim against the State. The other facts were also materially different from those of the instant case, in that it had been adjudicated that there was no liability against the county; the liability, if any, being against the members of the board as individuals. The case therefore is not in point.

However, as indicated above, the Justices are equally divided in opinion as to the question above discussed, and therefore the judgment of the trial court holding the act valid as against such attack stands affirmed by operation of law.

2. The third ground of the motion to dismiss was based on the objection that the act approved March 20, 1943 (Ga. L. 1943, p. 401), sought to amend and repeal section 114-101 of the Code by reference to the number of the section, and without distinctly describing the law to be amended and repealed as well as the alteration to be made. Upon examination of the act it will be found that it did two things:

First. To the definition of "employer," as found in the workmen's compensation law (Code, § 114-101), it added "the State of Georgia and all departments thereof." In effecting this change in the law the legislature repealed § 114-101, which defined "employer" and "employee," and re-enacted the section in the identical language, except that in the definition of "employer" it added, "the State of Georgia and all departments thereof."

Second. It added a new paragraph ( § 114-101A), to the Code, providing, among other things, that accidents to employees of State departments which had been operating under the workmen's compensation law that occurred before the passage of this act would be treated as compensable accidents just as though the employee had been covered under the workmen's compensation law.

The first change, which provided that the word "employer" would include the State of Georgia and all departments thereof, is properly provided for by describing the law to be amended or repealed, and the alteration to be made. While the caption of the act begins by describing the law to be amended simply as "section 114-101 of the Code of 1933," it also contains the phrase "the original act," clearly referring thereby to the section previously mentioned. In the same connection, it further appears that such "original act" is one that contains a definition of "employer" as related to the workmen's compensation law, and similar descriptive references are also found in section 2. The law to be amended is thus distinctly described, and is not left to be identified simply by reference to the number of the section of the Code. As to this phase, the act of 1943 did not purport to repeal or modify any provision of an existing statute except by enlargement so as to include an additional employer, and the decision in Bagwell v. Lawrenceville, 94 Ga. 654 (21 S.E. 903), would seem to be apropos: "The phrase, ``An act to amend the several acts incorporating the Town of Lawrenceville,' is sufficiently descriptive of the law to be amended, the amending act not undertaking to expressly repeal or modify any of the provisions contained in the acts incorporating the Town of Lawrenceville, but only adding affirmative legislation which might have been constitutionally enacted without making any reference whatever to existing laws touching that town, the sole repealing clause in the act being the usual general clause repealing all conflicting laws and parts of laws. The descriptive phrase being set out in the title of the act, it was unnecessary to repeat it in the body of the same." See also, in this connection, Dowda v. State of Georgia, 74 Ga. 12; Town ofMaysville v. Smith, 132 Ga. 316 (64 S.E. 131).

The first four lines in the caption to the act say: "An act to amend section 114-101 of the Code of Georgia of 1933 by adding thereto a provision that all employees of the State of Georgia shall be placed under the workmen's compensation laws of Georgia." That is exactly what was done, and all that was done, in the first section of the act. The method adopted so to change the law, to wit: "That section 114-101 is hereby repealed in its entirety and a new section added in lieu thereof to read as follows," then re-enacting the identical section defining "employers," with the addition that the State of Georgia should be an "employer," was in fact nothing more than an amendment to the law, which was amply described and provided for in the caption. It was a definite notice as to the alteration to be made. Whether it be considered that section 114-101 of the Code was repealed and then re-enacted at the same time, or whether it be viewed merely as being amended, it makes no difference, as the effect is the same. So, in so far as the objection refers to the "repeal," it is without merit. Consequently the first section of this act is not subject to the objection made.

The second section, which added a new paragraph to the Code ( § 114-101A), making certain accidents to employees that occurred before the passage of the act compensable, was distinctly described in the caption, was again described in the body of the act, and was sufficient to put everyone, legislators and the public who might be affected, on guard as to all matters connected with this subject matter.

In connection with both sections of the act, see: Adam v.Wright, 84 Ga. 720 (11 S.E. 893); Fite v. Black,85 Ga. 413 (3) (11 S.E. 782); Georgia Southern FloridaRailroad Co. v. George, 92 Ga. 760 (2) (19 S.E. 813);Silvey v. Phoenix Insurance Co., 94 Ga. 609 (21 S.E. 607);Fullington v. Williams, 98 Ga. 807 (2) (27 S.E. 183);Puckett v. Young, 112 Ga. 578 (2) (37 S.E. 880);Cunningham v. State, 128 Ga. 55 (57 S.E. 90); Tison v.Doerun, 155 Ga. 367 (2) (116 S.E. 615); Holland v.State, 155 Ga. 795 (2) (118 S.E. 203); SouthwesternRailroad Co. v. Wright 156 Ga. 1 (118 S.E. 552).

Accordingly we hold that the act of 1943 (Ga. L. 1943, p. 401), does not violate article 3, section 7, Paragraph 17, of the constitution of this State (Code, § 2-1817).

3. The fourth ground of the motion to dismiss is based on the ground that the act of 1943 (Ga. L. 1943, p. 401), would grant a donation or gratuity in contravention of article 7, section 16, paragraph 1, of the constitution of the State (Code, § 2-6401). There is no contention that it violates article 7, section 16, paragraph 2, of the constitution (Code, § 2-6402), as to granting extra compensation to an officer, agent, or contractor. Webster defines donation as "that which is given as a present, a gift. A voluntary transfer without consideration," and defines gratuity, as "something given freely, or without recompense, a free gift, a present." Bouvier's Law Dictionary defines donation as "a gift . . the act by which the owner of a thing voluntarily transfers . . the same . . without any consideration," and defines gratis, as "without reward or consideration." Under the facts in the case it appears that at the time of the accident to this employee, on December 16, 1942, the State Highway Department was paying compensation to its employees under the workmen's compensation law, and did not cease payments until February 1, 1943. Whether or not the act of 1943, in authorizing the payment of compensation for this accident is in violation of this constitutional provision necessarily must turn on whether such payment would be a donation or gratuity. It must be borne in mind that this employee in working for the State Highway Department was deprived of any right to sue and recover compensation for damages for personal injuries. Being deprived of the right to sue for damages, if he entered and remained as an employee under a contract with his employer, either expressed or implied, that in case of an accident he was to receive compensation under the workmen's compensation law, then under such terms of employment the agreement to thus compensate him for accidents was a part of the consideration for his work, without which his monthly or weekly pay should have been larger, or his original employment contract might never have been entered into. Therefore, when the State Highway Department accepted his services, but did not furnish all of the compensation agreed upon, there was a consideration furnished by the employee for which he had not been recompensed. We are here dealing with whether this payment is a donation or gratuity; and not with the legality of the agreement on the part of the State Highway Department, or the retroactive effect of the law authorizing the payment, which has been dealt with in the first division of this opinion. The State has received this employee's services for which it has not paid full consideration; the actual value of the privilege to be covered by the workmen's compensation law while employed by the State Highway Department need not be reduced to dollars and cents, but suffice it to say it has a value.

In Georgia Penitentiary Company v. Nelms, 65 Ga. 499 (38 Am. R. 793), where an act of the legislature authorized the governor to furnish a certain party convicts without charge, it was held that this was not a "donation" or "gratuity," because the party receiving the convicts furnished a consideration by feeding, clothing, providing medical attention, and maintaining them. In Trotzier v. McElroy, 182 Ga. 719 (186 S.E. 817), in discussing payment of pensions by a city to retired firemen, and whether such payments were gratuities, the court recognized that where the firemen had furnished a consideration it was not a gratuity. In Aven v. Steiner Cancer Hospital, 189 Ga. 126 (5 S.E.2d 356), where land owned by a municipality was leased in consideration of certain medical treatment for the poor, it was held that this was not a violation of the constitutional inhibition against a donation or gratuity. Where the State of Georgia granted a right of way for railroad purposes from which it expected to receive public benefits it was held that the grant was not a gratuity within the class of evils the constitution intended to prevent. State of Georgia v. Trustees of Cincinnati Southern Railway, 248 U.S. 26 (39 Sup. Ct. 14, 63 L. ed. 104).

In construing this section of our constitution, where there has been involved a consideration for the legislative grant, either past, present, or future, both this court and the Supreme Court of the United States have denominated such acts as not being within the scope of prohibited acts covered under the term "donation" or "gratuity."

In Fairfield v. Huntington, 23 Ariz. 528 (205 P. 814, 22 A.L.R. 1438), it was held: "An appropriation to compensate a State employee for an injury by accident in the course of and arising out of his employment is not a donation within the prohibition of the constitution, notwithstanding the State was not legally liable to make the reparation. The same rule has been recognized and applied by the great majority of the courts that have dealt with the question. Notably, a different rule exists in California, as shown in editorial note following report of the Fairfield case in 22 A.L.R. 1445. However, the decisions in California relating to pensions for services that were rendered at a time when no pension law was in existence, are distinguishable from the instant case, since the statute here under consideration was designed to cover an employment where the State Highway Department as employer had been actually operating under the workmen's compensation law, even though it may not have been authorized to do so. Compare Dewitt v. Richmond County,192 Ga. 770 (16 S.E.2d 579); Lamb v. Board of County Peace Officers Retirement Commission, 29 Cal.App.2d 348 (84 P.2d 183); Sweesy v. Los Angeles County Peace Officers Retirement Board (Cal.App.) (101 P.2d 732). As to its constitutional aspects, the present case also differs from Matkins v. State, (Tex, Civ. App.) (123 S.W.2d 953), since under the constitution of Texas the legislature is prohibited from granting by appropriation or otherwise any amount of money out of the treasury of the State to any individual on a claim, real or pretended, when the same shall not have been provided for by "pre-existing law." The quoted provision does not appear in the constitution of Georgia. See also in this connection, State of Wyoming v. Carter, 30 Wyoming 22 (215 P. 477, 28 A.L.R. 1089); Spitzig v. State, 119 Ohio St. 117 (162 N.E. 394); Nancolas v. Jones, 47 S.D. 157 (196 N.W. 749); Gross v. Gates, 109 Vt. 156 (194 A. 465); Goldstein v. State (N. Y.)175 Misc. 114 (22 N.Y.S.2d 767).

Having thus reached the conclusion that the provisions contained in section 2 of the act under consideration referring to past injuries are not unconstitutional as granting a donation or gratuity, it necessarily follows that section 1 would not be subject to such objection. See City of Macon v. Benson,175 Ga. 502, 506 (166 S.E. 26); City of Atlanta v. Pickens,176 Ga. 833 (4) (169 S.E. 99).

4. The fifth and sixth grounds of the motion to dismiss will be created together. The fifty ground alleges that the State Highway Department could not be held liable for injury to its employees because no appropriation has been made by the General Assembly, nor has the budget commission set apart any funds for this purpose. And the sixth ground claims the highway department can not be held liable for injury to its employees, because in the absence of an appropriation for such purpose it would be in violation of article 3, section 7, paragraph 11, of the constitution of this State (Code, § 2-1811), which provides in part, that "no money shall be drawn from the treasury except by appropriation made by law." There is no merit in this contention, for the reason that we are not in the instant case dealing with the question of drawing money from the treasury, or what action the budget commission has taken; but only with the right to establish liability as against the highway department. The manner of discharging such liability is not here involved.

5. In view of the foregoing rulings it becomes unnecessary to pass upon the first ground of the motion to dismiss, which would require a determination of the question as to whether or not the State Highway Department was an employer as defined by the workmen's compensation law (Code, § 114-101), before the act of 1943.

No question is presented as to whether this statute sufficiently manifests consent of the State to be sued, or whether the compensation law as amended thereby provides sufficient procedural machinery as to service and other matters for its enforcement against the State, or any department thereof, or whether if valid in all respects it was intended to be compulsory as against such employer. Consequently, no intimation is intended as to these or other questions not presented in the motion to dismiss. Compare 5 U.S.C.A., § 751; Silva v. United States, 292 Fed. 464.

Judgment affirmed. Bell, Chief Justice, and Wyatt, Justice,concur; Jenkins, Presiding Justice, concurs in the rulings statedin the 2d 3d, 4th, and 5th headnotes, and correspondingdivisions of the opinion; Grice and Duckworth, Justices, dissentas to these rulings. As to the question stated in the firstheadnote and discussed in the corresponding division of theopinion, the Justices are evenly divided as shown in the opinion,and therefore, as to that question, the judgment stands affirmedby operation of law.