107 Ga. 423 | Ga. | 1899
Lead Opinion
Plaintiff in error brought his petition to the superior court of Chatham county, making substantially the following case: In December, 1895, petitioner was elected by the Mayor and Aldermen of the City of Savannah clerk of the city court of Savannah for a term of four years beginning January 1, 1896. After the election petitioner duly qualified and continued to occupy the office from the 1st day of January, 1896, until the 12th of January, 1899. His election was by virtue of the provisions of the act of November 29, 1895 (Acts 1895, p. 394). The legislature of this State at its annual session of 1898 passed an act entitled “ An act to fix the time for the election of all city officers now elected by the council of the Mayor and Aldermen of the City of Savannah, to provide for the terms of such officers, to terminate the terms of those now in office, and for other purposes,” approved December 16, 1898. On the 11th of January, 1899, the Mayor and Aldermen of the City of Savannah in pursuance of the last-mentioned act elected Waring Russell Jr., the defendant, to the office of clerk of the city court of Savannah, who thereafter, against the consent of petitioner, took possession of the office and deprived the petitioner of the possession thereof, respondent still remaining in possession and claiming title thereto under such election. .The constitutionality of this act of 1898 was attacked in the petition and amendments thereto, on the following grounds:
We refer to these provisions of the constitution and laws of
The present city court of Savannah derived its name from an act passed on December 19,1853 (Acts 1853-4, p. 281). The title to that act was “an act to amend the several acts relating to the court of common pleas and of oyer and terminer of the City of Savannah, and for otherpurposes.” In the body of the act all laws applicable to the court of common pleas and. of oyer and terminer of the City of Savannah, not conflicting with the .act, were made applicable to the city court of Savannah. All officers of the former court then in office held their offices as if the act had never been passed. The nature of the court which had existed from 1819 to December, 1853, was not changed; the only effect of the act being to change the name of the court and the extent of its jurisdiction. Under the act of 1857 (Acts 1857, p. 115), embodied in section 4961 of the Code of 1882, a new feature was introduced in the law touching the city court of Savannah, empowering the judge of that court in conjunc-tion with the mayor of the City of Savannah to select five members of the mounted or foot police of the city as special bailiffs -of the court, who should remain such bailiffs for one year, unless sooner removed by the judge or unless in case of dismissal or resignation from the police force» By virtue of this act it will be seen the administration of law in that court was still more intimately associated with the appointing power and supervision of the mayor, the officer at the head of the municipal , government. After the organization of the city court of Savannah, it seems that by order of the city council of Savannah all the laws of the State of Georgia referring to this city were codified by the city attorney. In the codification of these laws were included the several acts pertaining to the city court of Savan
We have examined carefully the several authorities cited by counsel for plaintiff in error, but we do not think any of them are in point, as none of them involved the particular constitutional question presented by this record. In the case of Whitmore v. Mayor, 67 N. Y. 21, it appeared that the act in question was entitled an act to reorganize the local government of the City of New York. The body of the act authorized the board of apportionment to fix the salaries of all officers paid from the city treasury. It was decided in that case that the clerks of the district court of the city were not such officers, but judicial officers embraced within the judicial system of the State. In the first place a marked difference between the title to that act and that of the one we are now considering will be noticed. There would be some similarity between the cases if the title to the Georgia act of 1898 were to change the terms of such city officers whose duties relate to the local 'government of the City of Savannah. But .that case does not decide any constitutional question growing out of the contention that the body of the act contains matter different from what is expressed in its title. On the contrary it is stated in the report of the case that the constitutional question was not considered. The effect of the decision is, that, construing the body of the act in connection with its title, it was not within the purview of the legislature even by the terms used in the body of the act to refer to the particular office in question, to wit, the office of clerk of the district court of the city. The decision in the case of Harris v. People, 59 N. Y. 599, is more nearly in point. It was held in that case, that an act entitled "An act to revise the charter of Long Island City” was sufficiently comprehensive to embrace a provision in the body creating a city court. It appeared that the powers conferred upon that court related to the administration of State law. That case involved the trial of a person accused of the offense of burglary, a violation of the criminal law of the State of New York, and it was held
The question before us is not entirely free from its doubts and difficulties; but the very existence of a reasonable doubt upon the subject of the constitutionality of an act of the legislature should be an end of the argument. It is a rule of law recognized by all standard authority on the subject, to such an extent that it may be regarded as an elementary principle, that it is the duty of courts to sustain the constitutionality of acts passed by a co-ordinate branch of the government, unless they are plainly and palpably violative of some provision of the organic law of the State, and if there is a reasonable doubt on the subject, this doubt should always be resolved by the courts in favor of the legislative branch of the government. Carey v. Giles, 9 Ga. 253; Churchill v. Walker, 68 Ga. 681; Wellborn v. Estes, 70 Ga. 390; Howell v. State, 71 Ga. 224.
Judgment affirmed.
Dissenting Opinion
dissenting. 1. Even though in an act of the legislature, creating a public office, it is provided that the incumbent thereof shall be elected by, and give bond payable to, the mayor and aldermen of a city within which he is required to perform his official duties, if the duties imposed upon him relate-exclusively to matters connected with the administration of some general public function, and in nowise involve the performance of any function connected with the administration of the municipal affairs of such city, a person elected to fill such office is not an officer of such city, and does not fall within the class of persons embraced within the meaning of the term “city officers,” occurring in the caption -of a subsequent act of the General Assembly, and employed for
2. The clerk and sheriff of the city court of Savannah are-public functionaries whose duties relate exclusively to matters-involved in the administration of the general public justice;. they are neither authorized nor required to perform any official, function connected with the administration of the uiunicipab affairs of the City of Savannah; they are therefore not officers-of that city; and consequently the act of the General Assembly approved December 16, 1898, which is entitled “ An act to fix the time for the election of all ‘city officers’ now elected by the Mayor and Aldermen of the City of Savannah, to provide for the terms of such officers, to terminate the terms of those now-in office, and for other purposes,” in so far as its provisions relate to the terms of office of the clerk and sheriff of the city court of Savannah, contains matter different from that expressed in the title, and is for that reason unconstitutional and void.
Concurrence Opinion
concurring specially. While I have serious •doubt of the soundness of what is laid down in the third headnote, I assent thereto, believing it to be my duty so to do under the doctrine stated at the conclusion of the foregoing opinion, viz., that as a rule, doubts as to the constitutionality of a legislative act should be resolved in favor of its validity.