Johnson v. Reese , 31 Ga. 601 ( 1860 )

By the Court. —

Eyon, J.,

delivering the opinion.

The defendant, as sheriff of the county of Glascock, seized and sold a tract of land, as the property of the plaintiff, under execution, but failed to advertise the sale in three of the most public places in the county, as required.by the Judiciary Act of 1799. (Cobb's Dig. 509.) This action was brought by the plaintiff, against the defendant, to recover damages sustained by means of such neglect of duty. On the hearing, the Court below awarded a nonsuit, to which plaintiff excepted. And the only question for our consideration is, whether the provision of the Act of 1799, referred to above, has been repealed by subsequent legislation, either expressly or by implication? If it has, then the judgment of nonsuit was properly awarded; if not, the judgment was erroneous.

PREAMBLE OF ACT. “While the preamble is not, strictly speaking, any part of the Act itself, yet where the body of an Act is ambiguous or uncertain, resort may be hart to its preamble for the purpose of ascertaining the legislative intent. Eastman v. McAlpin, 1 Ga. 157; Price v. Bradford, 5 Ga. 370; Johnson v. Reese, 31 Ga. 605.” Smith v. Evans, 125 Ga. 112.

It is conceded that the identical question made in this case, was fully discussed, and actually decided, by this Court in Johnson vs. Reese (same parties, though a different case), 28 Ga. 355; but it is urged by counsel that, while this is true, the question made here now was not really in that case, or rather the judgment of the Court there did not at all depend on this question. And we agree with the counsel, that the real question in that case — which was, whether the purchaser, at the sale, got a title to the land or not — had nothing to do with the adjudication of the one before us now, and the adjudication of this, at that time, was unnecessary, and really not before the Court. Hence, we do not fell concluded by it, but shall decide the question precisely as if it was made now for the first time.

The provision of the Act of 1799, on which this action is-founded, is in the following words:

“No sales in future shall be made by the sheriff of property taken under execution, but on the first Tuesday in each month, and between the' hours of ten and three in the day; and it shall be the duty of the sheriff to give thirty days’ notice in one of the public gazettes of the State of all sales of land and other property executed by him, and also advertise the same-in three of the most public places in the county where such sales are to be made, and shall give a full and complete description of the property to be sold,” etc.

The Act of 1839 (Cobb, 286) requires the sheriff and other officers to keep in their respective offices a regular file of the newspaper in which they may advertise the notices required by law to be advertised, but no change of advertising is made.

The next Act on the subject to which we are referred, is an Act, entitled, “An Act to authorize and require the sheriff, etc., to advertise in certain newspapers.” Approved February-22, 1850, by which it is enacted:

“That the sheriffs, etc., are hereby authorized and required to advertise their sales, etc., in some newspaper published in their counties respectively; and if there be no such paper published in the county, then in the nearest newspaper having the largest, or a general circulation in the county.”

By the Act of 1799, the sheriff was required to give thirty • days’ notice in some public gazette of the State. The sheriff, by that Act, could have complied with the law by a publication of his sales in any newspaper of the State, whether a single copy was taken in the county or not. The object of the advertisement was to give publicity to the sale, so that the competition might be as large as possible, they benefiting both the debtor and creditor in the sale of the property. The provision of the Act of 1799 did not accomplish that object, or at least it might be complied with by the sheriff, and the object of the law not attained. The Act of 1850 was intended to remedy that defect, and the only change made by that Act was as to the newspaper in which the notice was to be given, all the other provisions of the Act remaining of force.

The next Act on this subject, and the one which is relied on by counsel for defendant, as repealing, by implication, the provisions of the Act of 1799, requiring advertisements at the three most public places in the county, is that of 1852, entitled, “An Act to regulate the advertising of Clerks, Sheriffs and other State and county officers,” etc.' Approved January 22, 1852.

Section x enacts: “That from and after the passage of this Act, the clerks, sheriffs and other State and. county officers of the State of Georgia shall be authorized and empowered to publish their advertisements in any newspaper they may select, having a general circulation in their respective counties or districts.”

Section 2, general repealing clause. ’

The only effect of this Act was, to repeal the provision of the Act of 1850, that required the advertisements to be made in a newspaper published in the county where the sale was to be made, or in the nearest having the largest, or general circulation in the county, and instead thereof, to authorize the officers to advertise in any paper they might select, restricting them only to some paper that had a general circulation in the county where the sales were to be made. The Act did not repeal the provisions of the Act of 1799, requiring the sale to be advertised at three of the most public places in the county, nor in anywise dispense with or abrogate that duty on the part of the sheriff, nor are those provisions in conflict or inconsistent with the terms of the Act of 1852; but they are in as full fprce and as binding on the sheriff, as a duty, as if no such Act had been passed.

Great stress was laid, in the argument, on the fact, that the title of the Act of 1852 is, “to regulate the advertising of clerks and sheriffs,” from which, as argued, appears the intention of the Legislature as to the whole duty of those officers in advertisements; that in regulating the advertisement, they then prescribe all the duties required of the officer in this respect; in other words, as the Legislature, by that Act, regulated 'the duty of. sheriffs, in advertising their sales, a compliance with the provisions of that Act is a full performance of their whole duty in that respect; and all Acts requiring other' or additional duties, conflict with that Act, and are void.

The answer to the argument is, that the title is no part of the Act, and resort can be had to it only for the purpose of ascertaining the intention of the Legislature where the body of the Act itself is so obscure and • uncertain that the intention can not be ascertained from it. In the body of this Act there is no obscurity or ambiguity whatever, but the sense is plain and manifest, that the only change made or intended upon the old law, was as to' the newspaper in which the notice of the sale was to be made. But let us look at the word as though it constituted a part of the body of the Act, and is to be considered as 'well as all the balance of the Act, to get at the sense of the Legislature. Was it used in the broad sense claimed for it by counsel for the defendant? Most certainly not; for that would be to dispense with the length of time the advertisement was to run, prior to the sale, the description of the property to be sold, and the names of the parties to the proceeding; all of which are prescribed by the Act of 1799, and are to' be found nowhere else. It surely could not be contended that the Legislature intended that .these important requirements should be dispensed with,, or that a sheriff had discharged his duty who- had neglected them in the sale of a defendant’s property; yet, if we should hold that this statute repealed the one thing, we should, by the same rule, and for the same reason, be compelled to- hold that it also repealed the other requirements; for the Act is “to regulate the advertising,” and if it regulates as tb one-thing other than that expressly named in the Act, it must as to all things. We can not so hold. On the contrary, we-must construe that word in the confined s.ense in which the-Legislature manifestly intended it, as applied only to the newspaper in which the notice should be given, leaving all other-regulations as to the sheriff’s duty in advertising of force,, and undisturbed thereby.

I will briefly notice some of the other arguments used by the ingenious counsel for the defence: These are, that this-provision of the Act of 1799 has become obsolete — is disused throughout the State; that the reason and necessity for their enactment has long ceased to exist, because at the time-of that enactment there were but few papers published in the-State of Georgia, and they had but a very limited circulation; that, then, if the notice was given only in a public gazette, very little, if any, publicity would be given of the sale to those who would likely desire to become purchasers; hence, the necessity of requiring notices fo be posted at public-places in the county. To all this we reply, that an Act of the Legislature never becomes obsolete, but is always in full-force and vigor until repealed by the Legislature; that the willful and deliberate neglect by an officer, or officers, of a plain and. positive duty, under a statute, can never justify the above, no matter how long-continued or how universal' such neglect may be. Whether the reason and necessity of the law has ceased, involves the whole question in this case. The statute makes it the duty of the sheriff to give the notices. The object is, to give publicity to the sale, so that the defendant’s property shall not be sacrificed for the want of a knowledge of the sale by persons who would likely become purchasers or competitors therefor, in the sale. If all such persons have, or had notice of the sale, although it was not posted at the three most public places in the county, then the plaintiff has sustained no injury; but that is a question to be determined by the jury on the proof made. 'The continuance of a statute does not depend on the continuance, or even the existence, of a reason. The reason may cease, or it may never have existed; the officer of that law is bound, nevertheless, to obey its commands; and if he fails to do so, and injury results, he must respond to the extent of the injury sustained. For these reasons, we think the demurrer ought not to have been sustained.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in sustaining the demurrer to the plaintiff’s declaration 'and dismissing his said suit.