Smith v. McMichael

In accordance with the wishes of the court, the foregoing opinion was prepared in conformance with the majority view. What is said in paragraph 4 (a) does not represent my own views. While the language of the Constitution quoted at the beginning of paragraph 4 (a) of the majority opinion cannot be said to be altogether free from ambiguity, I have been unable to reach the legal conclusion that the most reasonable interpretation of the new Constitution is that — if a member of the House or Senate follows the strict mandate of the Constitution, and publishes the notice as required and accompanies the bill with his sufficient affidavit that the prescribed notice has been published as provided by law — the act shall fail merely because the enrollment fails to embody such preliminary proof, although, as stated, the affidavit may have been actually made and accompanied the bill as the law requires. I say this because I recognize a vast and distinctive difference between a bill introduced by some member of the House or Senate and an authenticated act of the General Assembly. The bill is nothing more than a proposal made by some member of either branch of the General Assembly. The authenticated enrollment is what the legislature has enacted into law. The bill like the chrysalis shreds all of its language of a preliminary nature such as proof of notice being published and all amendatory verbiage, if any, when it takes upon itself the form of a finished statute, unless such preliminaries be specifically made by law a part of the bill itself. The bill is what the legislature had before it in its journey through the General Assembly, including all preliminary requirements; the enrollment is the law and nothing but the law. It shows that and only that which the legislature has enacted into a statute. It is true that, when the first of the two given methods of proof provided for by the terms of the Constitution is resorted to, that is, when the certificate of the publisher and not the affidavit of the author is relied on, the notice as certified by the publisher must be attached to the bill as a part thereof, and in such a case the enrollment must contain such notice and certificate as an integral part of the law itself. But, as indicated, the Constitution provides not one but two methods of proving newspaper notice. In the one case, that is when proved by the publisher, the proof need not be sworn to, but the notice must in that case be attached to the bill as a part thereof, and the publisher need then only certify that the publication has been made as prescribed by law. In the other case, that is, when proved by the sworn affidavit of the author, it is not required that the proof be attached to the bill as a part thereof, but it is required that the bill be accompanied with an affidavit sworn to by the author that said notice has been published as provided by law. It could hardly be thought that the General Assembly in proposing the provision to the people would require the identical proof by the publisher and by the legislative author, except that the publisher is not required to swear to his proof, while the legislator is required to do so. What the constitutional provision in effect says, and what it therefore should be taken to mean, is that, if the author does not accompany his bill by his affidavit that said notice has been published as provided by law, but relies on proof by the publisher, the notice and unsworn certificate of the publisher must not only be attached to the bill but be made a part thereof. In other words, it can at the very least be said that there are two reasonable alternative interpretations for the method of proof of advertisement for local or special bills: one being that the notice be attached to and made a part of the bill together with a certificate of the publisher to the effect that said notice has been published as provided by law; the other and, as I see it, the most reasonable, being that the bill may be accompanied by an affidavit sworn to by the author to the effect that said notice has been published as provided by law. Either of these methods of proof will suffice, but in the one case the proof constitutes a part of the bill itself, while in the other case it does not, but merely accompanies it. In the one case the enrollment of the bill will show the proof, in the other case it will not. To test the natural meaning of this provision of the Constitution, let it be quoted for the purpose of being analyzed. The Constitution, after prescribing the character of publication required, uses this language: "No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law." It would seem that the reasonable and natural interpretation would be to let the "or" setting up the two alternative provisions relate back to the word "unless"; that is to say, no local bill shall become law unless one of two requirements is complied with — either that there is attached to and made a part of said bill a copy of said notice certified by the publisher to the effect that said notice has been published as provided by law, or unless accompanied by an affidavit sworn to by the author to the effect that said notice has been published as provided by law. Even in order to construe the provision to mean that the notice must be attached to the bill when proven by the affidavit of the author, it would seem that two things must first be done: first, there must be added a comma between the words notice and certified; and second, the comma must be stricken after the word publisher. If both of these changes were made in the Constitution as written, then, but only then, the natural meaning would require that the notice must be attached to the bill when proof is made by the affidavit of the author, otherwise not. But that such is not the reasonable and natural interpretation is shown by the fact that even then there would be nothing to require that the author must also attach his proof of notice as a part of the bill. It is therefore not just a matter of punctuation, for even should this court feel authorized to change the punctuation, both by striking out and putting in, that would still not suffice. By shifting from the word "attached" to the word "accompanied" as related to the affidavit of the author, the provision seems clearly to negative the idea that the sworn proof by the author should be attached to the bill as a part thereof, as is required when proof is made by the mere certificate of the author. What merely accompanies the bill cannot possibly be said to constitute a part thereof. The provision of the Constitution, by changing the word "attached" in one case to the word "accompanied" in the other case, made a sharp right-angle turn, and the difference in significance between the two words can hardly be ignored. The conclusion formulated in the dissent is that the enrolled act is not nullified merely because it does not contain something which the law does not contemplate that it should contain. On its face the enrollment sets forth a valid law. We are not here concerned under the record as presented as to what the publisher must include in his certificate or as to what the author must include in his affidavit as to proof having been made "as provided by law." Perhaps it might be thought that the author should set forth in his affidavit what notice was published, and that both he and the publisher should set forth in what manner publication was had. This, however, is not the question. The one question actually here involved is whether the affidavit of the author should be attached to the bill as a part thereof, despite the fact that the Constitution provides only that his affidavit shall accompany the bill, whereas, if proof by the publisher is relied on, his certificate must be attached to the bill as a part thereof. In the one case the proof should be enrolled as a part of the bill, in the other case not. Nor is any question presented as to whether the validity of the act could be attacked after enrollment by showing that the bill itself as filed with the Secretary of State, just as the enrollment is filed, fails to show that the bill was accompanied by the affidavit of the author. This is true because the record here involved is wholly silent as to whether such was or was not the fact, and there would at least be a prima facie presumption that it did unless proof to the contrary was shown. See, in this connection, Dorsey v. Wright, 150 Ga. 321 (103 S.E. 591). But, under the rules just stated, the mere fact that the enrollment does not contain something which, under at least one reasonable, and I believe the most reasonable, construction of the Constitution it is not required to contain, would not justify nullifying this law and a vast multitude of similar local laws, all presumably actually complying with the law but all coming within the same state of facts as to enrollment under the interpretation as given by the legislative enrollment authorities. This we should not do unless positively compelled to do so by plain and unambiguous language of the Constitution so requiring. This court in Macon Augusta Railroad v. Little, 45 Ga. 370, 380, had this to say: "The argumentum ab inconvenienti will be strained to its utmost limits to sustain acts of the legislature, to declare which void might produce very serious consequences to the State." In Gormley v. Taylor, 44 Ga. 76, 99, Chief Justice Lochrane in writing a special concurrence to the majority opinion said in this language: "With all judges consequences must needs influence consideration. We should pause upon the enunciation of legal judgments whose effect would be to upset society and turn loose chaos over the land. . . I think consequences have something to do with invoking a more thorough consideration of all the questions arising under the facts of the case before announcing it to be the law." While it is entirely proper in construing ambiguities to give consideration to what the commission that prepared the new Constitution intended, it is likewise just as proper to give due weight and consideration to the construction as made by the proper legislative or administrative authorities. See Wellborn v. Estes, 70 Ga. 390. There are other questions which, under the view here presented, need not be raised or decided. Among those are whether a bill which was carried forward to an adjourned meeting of the same session, as this one was, and which was introduced prior to the adoption of the new Constitution, would be governed by the old or new law as to the character of notice and the proof thereof.

No. 15893. OCTOBER 24, 1947. REHEARING DENIED NOVEMBER 14, 1947.