Clark v. Reynolds , 136 Ga. 817 ( 1911 )

Lumpkin, J.

(After stating the foregoing facts.) The answer of the respondent raised- many points. They may be grouped under a few general heads. (1) Was the act of 1873 violative of the constitution of -1868, which was in force at the time of its passage, or of the fourteenth amendment to the constitution of the United States? (2) Was it repealed by subsequent legislative acts?. (3) Was it repealed by the constitution of 1877? (4) Wore the acts of 1893 and 1894 unconstitutional? (5) If the acts mentioned, or any of them, 'were valid and of force, was there such a compliance with their terms as to authorize the grant of a mandamus, requiring the county treasurer to pay the insolvent costs involved?

1. In granting the mandamus absolute, the presiding judge hied a brief opinion, in which he said that he thought the acts of 1873, 1879, and LS80 were, by implication, repealed by the acts of 1893 and 1894; that he had doubt as to the constitutionality of those acts, but resolved the doubt in their favor, and granted the writ. It was argued on behalf of the plaintiff in error that this was an adjudication that the acts preceding that of 1893 had been repealed, and that the only questions which should be considered arose under that act and the act of 1894. We do not think this contention is sound. If we should determine that the acts of 1893 and 1894 were invalid, of course they could not repeal, by implication, preceding acts. The judgment which was rendered was that a mandamus absolute be granted. The views and doubts expressed by the judge would not require a reversal, if the writ was properly granted.

2. Was the act of 1873 in conflict with the provision of the State constitution of 1868 (which was in force when the act was passed), which declared that “protection of person and property is the paramount duty of government and shall be impartial and complete” (Code 1873, § 4493), or with the fourteenth amendment to the constitution of the United States, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws”? The contention on this subject was based on tlie ground that the solicitor-general was a IState official, and should b.e paid by the State; that the general legislative plan for compensating the solicitor-general for his services was by the pa_yment of a small salary from the State treasury (about enough, it was said, to pay his expenses), and the balance from State funds arising from fines and forfeitures; that the act of. 1873, which made special provision in regard to the Augusta judicial circuit, imposed the burden of paying the insolvent costs of the solicitor-general upon the counties in such circuit, and necessitated the levying of a tax in Richmond county for the purpose of replenishing the county treasury with funds wherewith to pay such costs; and that this amounted to a denial of the equal protection of the laws. This contention is without merit. The'constitution of 1868 did not prevent the passage of local laws because of the existence of general laws on a particular subject. The fact that there were and had been general laws as to the payment of insolvent costs from funds arising from fines and forfeitures did not prevent the legislature from adopting an act supplementing such fund in a particular county. In this there was no denial of the equal protection of the law. Certainly there was none as against the county treasurer. Hammond v. Clark, 136 Ga. 313 (71 S. E. 479).

3. It was urged, that, under the constitution of 1868, taxation for State purposes was imposed by the General Assembly, arid for count3r purposes b3r county authorities, and that this act created a necessity for taxation and a liability dependent upon recommendation of the grand jury. It was also urged that the act conferred upon the judicial department of the government a power properly belonging to the legislative department. Neither of these objections to the act is well taken. Where the legislature had power to enact the local law, making it take effect or become operative upon such a condition did not violate tlie provisions of the constitution of 1868, to which reference has been made. Moreover, the present proceeding is not one to compel the levy of a tax. The money is already in the hands of the treasurer; but he declines to pay''the .insolvent cost bills of the solicitor-general, on the ground that they are not lawful demands.

4. Was the act of 1873 repealed by the act of 1879? The act of 1879 provided for its repeal, but not to take effect until the’end of the term of the then incumbent in office. Before that time' ar3;ived the act of 1880 repealed the act of 1879. It was therefore held by this court that the apt of 1873 waá not repealed by the act of 1879, but remained of force. Adam v. Wright, 84 Ga. 720. These acts and counter-acts do not present a ease of legal execution and resuscitation, but of intercepted death.

5. Was the act of 1873 repealed by the acts of 1893 and 1894? Those acts each contained a general clause repealing “all laws and parts of laws in conflict with this act.” If they were themselves valid, they so covered the same subject-matter as that dealt with in, the act of 1873 as to repeal it. If they were themselves unconstitutional and void, they did not repeal it: Nothing can properly 'be said to conflict with a nullity; and a repeal of what conflicts with a nullity is no repeal at all. We shall presently show that the two later acts were unconstitutional. Hence they did not repeal the former act. Barker v. State, 118 Ga. 35 (44 S. E. 874).

6. The contention that the act of 1873 was repealed by the constitution of 1877, because not in accord with it, can not stand. It was expressly provided by that constitution (art. 12, sec. 1, par. 4) that “Local and private acts passed for the benefit of counties, cities, towns, corporations, and private persons, not inconsistent with the supreme law, nor with this constitution, and which have not expired nor been repealed, shall have the force of statute law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms.” Civil Code (1910), § 6605. No such inconsistency between that act and the constitution has been pointed out as, under the adjudications of this court, works a repeal of the former. If all prior local acts thus preserved became at once inconsistent with the constitution because they were not altogether like the general laws existing, or those passed under such constitution, the preservation would be nugatory. There may be such an inconsistency, or such an exhibition of constitutional or legislative intent, that the prior local law will be repealed. But such is not the case here. The enforcement of the law in Bichmond county, and the services of the solicitor-general for that purpose, are beneficial. That the local law of 1873 made provision in regard to the compensation of that o|ficer, and that the treasury of the county would have to be supplied with funds from taxation, did not exclude that act from the constitutional classification of local acts '“passed for the benefit of counties.” The distinction between local acts passed prior to the constitution of 1877, and by it preserved unless inconsistent with that instrument, and local or private acts passed since the adoption of that constitution, in eases covered by general laws, must be borne in mind.

7. By article 7, section 6, paragraph 2, of the constitution (Civil , Code, 1910, § 6562) it is declared that the legislature shall not have power to delegate to any county the right to levy a tax except for certain purposes. One of these is for “expenses of courts.” In 1889, an act was passed requiring the commissioners of roads and revenues of Fulton county to levy a tax to pay a certain proportion of the insolvent costs not collected by the two plaintiffs, while solicitors of the city court of Atlanta, from fines and forfeitures. In Adair v. Ellis, 83 Ga. 464 (10 S. E. 117), it was held that .this claim-was not for “expenses of court” within the meaning of the constitutional provision mentioned, and the act was void. Justice Simmons, in the opinion, said: “It may be argued, however, that the legislature has the power to determine and define, under this paragraph, what are expenses of courts, and that the courts would be bound by its definition. This may or may not be true. It is unnecessary for us to determine in this case whether the legislature can enlarge the common and usual meaning of these words or not. It is sufficient for us to say that in this case the legislature did not say that the claims of the defendants in error were expenses of court.” In Adam v. Wright, 84 Ga. 720 (11 S. E. 893), it was held that the act of 1873, now under consideration, was not so modified by the constitutional provision j-ust mentioned as to forbid payment of insolvent costs out of any funds in the county treasury raised by taxation, such costs having, before the adoption of.the constitution of 1877, been made part of the' expenses of court in the Augusta circuit, when properly recommended, as could then he done. See also Massey v. Bowles, 99 Ga. 216 (25 S. E. 270); Moore v. Houston County, 128 Ga. 187 (57 S. E. 236); Duer v. Thweatt, 39 Ga. 578; Adam v Cohen, 84 Ga. 725 (11 S. E. 895). In Houston County v. Kersh & Wynne, 82 Ga. 252 (10 S. E. 199), it was held that in the absence of a statute providing for the publication of the general presentments of the grand jury as a part of the proceedings of the court, there was no authority of law for paying out of the public funds for such a publication. Subsequently an act was passed providing for such publication and the payment thereof as a part of the expenses of court. See Howard v. Early County, 104 Ga. 672 (30 S. E. 880). Tt has not been held that the .legislature can exercise the judicial function of construing a clause of the constitution, but it seems to have been recognized that they may require certain things to be done and certain legitimate expenses to be incurred. In those cases, however, the question arose in regard to the taxing power of counties.

8. The act of 1893 provided that “the treasurer of Richmond county shall pay to the solicitor-general of the Augusta circuit, semi-annually, his bill of insolvent costs for services in Richmond superior court, upon presentation of itemized bill for same, audited and approved by the presiding judge; provided, the sum paid shall not exceed, in any one .year, the sum of two thousand dollars.” Acts 1893, p. 485. This was amended by the act of 1894 by adding: “Provided further, that the grand jury, at each term of the superior court of Richmond county, shall authorize and recommend the payment of the same in their presentments.” Acts 1894, p. 93. Roth of these acts were attacked on the ground, among others, that they were in conflict with the provision of the constitution which declares that “no special law shall be enacted in any case for which provision has been made by an existing general law.” Article 1, section 4, paragraph 1 (Civil Code (1910), § 6391). This ground of attack is well taken. In Moore v. Houston County, supra, it was said (referring to a local act fixing the compensation of the treasurer of Houston county, passed prior to the constitution of 1877) : '“While special legislation of the character of the act of 1875 is no longer permissible since the constitution of 1877 went into effect, still a previous valid special daw was not repealed by the adoption of that constitution.” The act of 1873 was not repealed, as already stated. It was subject to repeal; but new and additional local legislation could not be enacted after the passage of the constitution of 1877, where provision had been made on the subject by an existing general law. Houston County v. Killen, 76 Ga. 826. When the two later acts-r mentioned were passed there was a general law in existence on the subject of the salary and fees of the solicitors-general, and their payment from the fine and forfeiture funds.' Penal Code (1910)! §§ 1112, 1130. The legislature could not then provide by local act for the payment of insolvent costs to the solicitor-general of the Augusta circuit from the county treasury of Richmond county.

It was argued in the brief of counsel for defendant in error, that the constitution prohibited “special”’ legislation; that this differed from local legislation; that the difference had not been regarded by this court in former decisions; and that it should now be held that the constitution of 1877 did not prevent local legislation from being enacted, although there might be in existence a general law covering the subject. To give the constitution such a construction would be to permit the evil at which this provision was largely aimed, — the passing of a law to govern the whole State, and then allowing every militia district, county, judicial circuit, or other division of the State, or the officers thereof, to obtain special legislative dispensations on the same subject, so that, while the law purported to operate throughout the State, a great part of the State’s territory might be exempt from the mandate, and a State law might practically cease to be a State law. The constitution not only prohibits a special law in any case for which a provision has been made by an existing general law, but in the same connection declares that “laws of a general nature shall have uniform operation throughout the State,” and also provides for the preservation of local laws already passed and not inconsistent with that instrument; thus showing that the word “special” was not used in the restricted sense contended for by counsel for defendant in error. In Mathis v. Jones, 84 Ga. 804 (11 S. E. 1018), the subject was fully considered. It was there said: “You can not make a general statute cease to be general otherwise than by another statute repealing it. That is, under the constitution of 1877, you .can not repeal a general law in part by a local law; for in the eye of the constitution, every local law is special relatively to a general law. . . They [general statutes] can not be deprived of their force in one part of the State without simultaneously depriving them of force in every other part. They can be killed but not mutilated ; the smallest of their territorial members can not be cult off.” Such has been the uniform construction of this court, and it was reaffirmed as late as Futrell v. George, 135 Ga. 265 (69 S. E. 182). We think it a correct interpretation of the constitution, and we do-dine to depart from it. ■ There is no question here of amending dr modifying a general law by another general law, or of legitimate classification which may make a law general in character. Nor is an act in regard to a city court involved.

9. It was contended that, if the act of 1873 remained in force, there had been no sufficient compliance with its terms to authorize the solicitor-general to demand payment of his insolvent cost bills. It was urged that the act required an itemized account of the insolvent costs of .the term, of which payment was sought, to be presented to the grand jury and passed upon by that body, before presentation to the judge. The act declared that “Whenever at any term . . a majority of the grand jury shall so recommend, the judge shall grant an order for the payment of any account for insolvent criminal costs, so recommended to he paid.” It then provided that nothing in the act should be deemed mandatory to the grand jury; but they should have full discretion “to recommend or not, as they see proper, the payment of said criminal, and insolvent costs.” It is not entirely clear whether it was intended that the grand jury should investigate the items of the cost bill, or whether they could recommend in general terms the payment of the insolvent costs. The discretionary power of recommending or not does not apply merely to an auditing of an itemized account. It seems rather to confer a discretionary authority to determine whether the insolvent costs of the solicitor-general shall be paid from the county treasury. This construction also comports with the opening words of the act, .that whenever at any telan of the superior court a majority of the grand jury “shall so recommend,” etc. The possible uncertainty arises from the repetition of the words “so recommended to be paid,” and the question whether those words qualify the words “any account,” so as to require an itemized account to be presented and recommended. It is a matter of common knowledge that the most active work of the solicitor-general in prosecuting cases does not begin until after the grand jury have brought in indictments or presentments, and that a largo part of his services on account of which insolvent costs may arise is rendered after the grand jury have acted. By the act organizing the Augusta circuit in 1870 it was provided that the regular terms of Richmond superior court should continue for four weeks, though an adjourned term should he called, if necessary. If the grand jury should finish their, labors during the first week, and the criminal docket be called during the second or third week, under the construction of the act contended for they could not be discharged, but would be compelled to return at the close of the term to pass upon the itemized accounts of the solicitor-general, or else they could take no action in the matter. The fees allowed that officer are fixed by statute. Tinder the general law then in force, the presiding judge examined the accounts of officers claiming insolvent costs, and ordered them to he entered on the minutes, to he paid in the manner prescribed by law. Penal Code (1910), § 1113. The act of 1873 provided for the payment ef the insolvent costs of the solicitor-general from the county treasury when “so recommended” b3r the grand jury at any term. We think the more reasonable construction of the act is that the grand jury could approve the policy, and the jnclge could approve the items. According to the agreed statement of facts, this has been'the uniform practice in the Augusta circuit ever since the adoption of the act of 1873. For about thii^-six years the grand juries, solicitors-general, judges, and county officials acted upon such construction before any controversy arose. It is true that long practice can not make legal that which is illegal. But it can hardly be assumed that all of the officers during this long time intentionally violated the law; and we can not say that they actualh violated it in this respect.

10, 11. The facts contained in the agreed statement show a sufficient compliance with the act of 1873 to authorize the payment of each of the. hills of insolvent costs of the solicitor-general, except in one instance. It appears that at-the May term, 1910, there was'no grand jury to make a recommendation, “hut, by agreement between the solicitor-general and the hoard of commissioners of roads and revenues of Bichmond county, such recommendation was .waived by the said board.” The law required .affirmative action on the part of the grand jury, in order to authorize the pa3^nient of those costs. The hoard of commissioners of roads and revenues could not waive what the law required as a sine qua non. Their waiver could not make that duo which, under the law, was not due. It was accordingly erroneous to grant the mandamus absolute as to the bill of insolvent costs of the solicitor-general for the term mentioned. .Direction is given that the judgment he amended accordingly.

What is said above covers the substantial controversy. There were some other contentions, such as that the act of 1873 contained matter in its body which was not covered by its title, that the proviso was inconsistent with the act, etc. It is sufficient to sa}^ that, cxcejot as above stated, there was no error in granting the writ of mandamus absolute. Nothing herein said .conflicts with the decision in Clark v. Hammond, 134 Ga. 792 (68 S. E. 600).

Judgment affirmed, with direction.

Beclc, J., absent. The other Justices concur.