Mulling v. Houlihan , 205 Ga. 735 ( 1949 )

1. Injury must be shown by the application of a law before a person can attack its constitutionality. Discrimination in the grant of favors is not a denial of the equal protection of the law.

2. The office of Associate Judge of the Municipal Court of Savannah was not abolished by the amendatory act of 1949 (Ga. L. 1949, p. 393), wherein the plaintiff in error was designated as "junior" judge of such court.

No. 16748. SEPTEMBER 13, 1949. J. P. Houlihan and others, as Commissioners of Chatham County, sought a declaratory judgment to determine the constitutionality of an act approved February 9, 1949 (Senate Bill No. 48, Act No. 102, Ga. L. 1949, p. 393), fixing the compensation of the Chief Judge of the Municipal Court of Savannah, who is ex-officio Judge of the City Court, and of the Senior and Junior Judges of the Municipal Court. It was alleged that a judicial determination of the constitutionality of the act is necessary to determine whether or not the commissioners should pay the compensation provided in the act. The prayers were for a rule nisi directed to the judges of the municipal court to show cause why a declaratory judgment should not be rendered; that the court render a declaratory judgment passing on the constitutionality of the amendatory act; and for other relief.

The bill of exceptions recites that B. B. Heery, as Chief Judge, and Columbus E. Alexander, as Senior Judge, filed a response in which they alleged that the act was constitutional, and that they were entitled to the salary prescribed therein.

Victor H. Mulling, as Junior Judge of the Court, filed a response in which he alleged that the act violates the Fourteenth Amendment of the Constitution of the United States, and art. 3, sec. 7, par. 15, of the State Constitution.

Due to the disqualification of Judge David S. Atkinson, Judge of Chatham Superior Court, the case was heard by Honorable M. Price, Judge of the Atlantic Judicial Circuit, who rendered a judgment that the act was constitutional and valid, and directed that the salaries stipulated therein be paid by the county commissioners.

Victor H. Mulling, as Junior Judge of the Municipal Court, excepts to that judgment.

R. E. Armstrong and others, as intervenors, did not except to the judgment, and are not parties in this court. 1. It is contended that the amendment of 1949 (Ga. L. 1949, p. 393) violates the rights of the plaintiff in error under the Fourteenth Amendment of the Federal Constitution (Code, § 1-815), to wit: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . nor deny to any person within its jurisdiction the equal protection of the laws." The basis of this contention is that the act attempts to classify the salary of the plaintiff in error upon the fact of junior service, and it is urged that such classification is not reasonable, is arbitrary and unconstitutional.

In Turpin v. Lemon, 187 U.S. 51 (23 Sup. Ct. 20,47 L. ed. 70), the Supreme Court of the United States laid down the following rule: "A plaintiff is bound to show that he has personally suffered an injury by the application of a law before he can institute a bill for relief to test its constitutionality." In Southern Railway Co. v. King, 217 U.S. 524 (30 Sup. Ct. 594, 54 L. ed. 868), the rule was stated as follows: "One who would strike down a statute as unconstitutional must show that it affects him injuriously and actually deprives him of a constitutional right." In this connection see also Tylerv. Judges, 179 U.S. 405 (21 Sup. Ct. 206, 45 L. ed. 252); Hooker v. Burr, 194 U.S. 415 (24 Sup. Ct. 706,48 L. ed. 1046); Collins v. Texas, 223 U.S. 288 (32 Sup. Ct. 286,56 L.ed. 439).

The plaintiff in error in no wise measures up to the rule stated. His salary has been increased by the act he would have declared unconstitutional. It is true that the other judges have had a correspondingly larger increase, but discrimination in the grant of favors is not a denial of the equal protection of the law. Schlesinger v. Atlanta, 161 Ga. 148 (129 S.E. 861, 64 A.L.R. 998). In order to attack the constitutionality of a statute under the equal-protection clause of the Fourteenth Amendment of the Constitution, on the ground of discrimination, the complaining party must show injury by the alleged discrimination. Cooper Company of Gainesville v. State,187 Ga. 497, 501 (1 S.E.2d 436). The plaintiff in error in this case does not show injury by the discrimination, which grants to him a salary increase, and under neither the State nor the Federal decisions can he attack the constitutionality of a statute that has not injured him.

2. The provision of art. 3, sec. 7, par. 15, of the Constitution of 1945 (Code, Ann., § 2-1915), that "no office to which a person has been elected shall be abolished, nor the term of the office shortened or lengthened by local or special bill during the term for which such person was elected unless the same be approved by the people of the jurisdiction affected in a referendum on the question," is not violated by the amendatory act of 1949 (Ga. L. 1949. p. 393). Prior to the amendment of 1949, the plaintiff in error was an Associate Judge of the Municipal Court of Savannah. He is still an Associate Judge. The fact that by the terms of the amendatory act he is classed as a "junior" judge in no wise affects his term of office. That a classification may now exist under the terms of the amendatory act, in that one of the judges is the "chief" judge, another "senior" judge, and the plaintiff in error the "junior" judge, does not change the office held, the duties thereof, nor the term.

The allegations of the response, that the act is inconsistent and violates the rights of the plaintiff in error, should a vacancy occur in the office of senior judge, in that the act gives to the commissioners of the county the right to fill such vacancy, presents no question for determination by this court. It is not shown that such provision in any manner violates either the Federal or State Constitution or any statutory law.

Judgment affirmed. All the Justices concur, except Duckworth,C. J., who dissents.