136 Ga. 313 | Ga. | 1911
(After stating the foregoing facts.)
The judge of the superior court of the Augusta circuit sought by mandamus to compel the treasurer of Richmond county to pay him a part of his salary as fixed by the amendment to the constitution of 1910 to be paid from the county treasury. This was resisted on a number of grounds. Broadly stated, the questions raised may be grouped under two general heads: (1) Did the proposed amendment (Acts 1910, p. 42) become a part of the constitution? (2) If so, shall such part of the constitution be itself declared unconstitutional and void, or to have no effect ?
In the absence of some other exclusive method of determination provided by the constitution, the weight of authority is to the effect that whether an amendment has been properly adopted according to the requirements of the existing constitution is a judicial question. The subject has been discussed at length, and with citations of many authorities, in State v. Powell, 77 Miss. 543 (27 So. 927);
The decision in Combs v. State, 81 Ga. 780 (8 S. E. 318), and that in Woodard v. State, 103 Ga. 496 (30 S. E. 522), are not controlling on the contention that the Governor’s proclamation was conclusive. In each of these cases the legislature had passed a local-option law and provided a particular method for the declaration of the result. It is not necessary for us to consider how far the courts would go into the mere question of contesting the election of the number of votes cast, or whether they would go behind the consolidation by the secretary of State. No such effort is made, and it is not disputed that a majority of the votes were cast in favor of the amendment. It is also unnecessary to discuss the effect of lapse of time or acquiescence, or of the making of an amendment to the constitution effecting a radical change in the government, and continued action in reliance thereon, or how far Federal courts would investigate the manner of the adoption of amendments to State constitutions, or would deal with the situation as they found it, until the question had been passed on by the courts of the State. None of these things are here involved. Dodd on Eevision and Amendment of State Constitutions, 209 et seq.
Article 13, section 1, paragraph 1, of the constitution (Civil Code (1910), § 6610) reads as follows: “Any amendment or amendments to the Constitution may be proposed in the Senate or House of Eepresentatives; and if the same shall be agreed to by two thirds of the members elected to each -of the two houses, such
It was contended that the proposed amendment was not published for two months prior to the election, as required by this paragraph. The first publication in the Augusta Chronicle was on August 5. It was published weekly nine times, the last time being on September 30. The election took place on October 5. Under the decisions of this court as to computing months, the first publication was two months prior to the election. English v. Ozburn, 59 Ga. 392; Barrett & Carswell v. Devine, 60 Ga. 632; Western and Atlantic Railroad v. Carson, 70 Ga. 388; Peterson v. Georgia R. &c. Co., 97 Ga. 798 (25 S. E. 370). The code declares that the word “month,” employed in statutes, means a calendar month. Civil Code (1910), § 5. It also provides, that, when a-number of days is prescribed for the exercise of a privilege or the discharge of a duty, only the first or last day shall be counted. Id. § 4, par. 8. Under these two provisions, two modes of calculation-have grown up, under the decisions. Rusk v. Hill, 117 Ga. 722, 728 (45 S. E. 42). But even if the rule as to days were applied, as August has thirty-one days, between the first advertisement and the election full sixty days intervened.
It could hardly have been the intention of the constitution that an amendment should be published daily for two months. When that instrument was adopted, in some congressional districts containing no large towns there was most probably no paper published every day, and it can not be supposed that the purpose was to impose an impossible condition on the making of an
A leading ease in which a proposed amendment was held to include within itself several distinct amendments, so that its sub-, mission as one was not in accord with the constitutional requirement that if more than one amendment were submitted at one
The constitution provides that no law shall be passed which refers to more than one subject-matter. Constitution, article 3, section 7, paragraph 8 (Civil Code (1910), § 6437). But it has been held that this did not prevent the legislature, in connection with the general subject-matter of creating a criminal court, from fixing its jurisdiction and powers, and prescribing the authority of its judge as a judicial officer, and in connection therewith amending previous acts establishing a city court, by withdrawing criminal jurisdiction therefrom. Welborne v. State, 114 Ga. 793 (6), 820 (40 S. E. 857).
None of the grounds advanced as reasons why the constitutional amendment under consideration was not lawfully submitted and ratified, so as to become a part of the constitution, can be sustained.
In Commissioners of Laramie County v. Commissioners of Albany County, 92 U. S. 307 (23 L. ed. 552), a territorial legislature organized two new counties, and included within their limits a part of the territory of an existing county, but made no provision for apportioning debts or liabilities. It was declared, that “Unless the constitution of a State or the organic law of a territory otherwise prescribed, the legislature has the power to diminish or enlarge the area of a county, whenever the public convenience or necessity requires;” and it was accordingly held that the old county, on discharging the debts and liabilities previously incurred, had no claim on the new counties for contribution. Mr. Justice Clifford said (p. 311) : “Public duties are required of counties as well as of towns, as a part of the machinery of the State, and, in order that they may be able to perform those duties, they are vested with certain corporate powers; hut tlieir functions are wholly of a public nature, and they are at all times as much subject to the will of the legislature as incorporated towns, as appears by the best text-writers upon the subject, and the great weight of judicial authority. Institutions of the kind, whether called counties or
But it was urged that the requirement that the county of Richmond should pay a certain amount of the salary of the judge, of the circuit which included that county, over and above the salaries paid to certain other judges of the -superior court, was a deprivation of the equal protection of the law, and an unconstitutional placing of a public burden upon that county, and thus indirectly upon its taxpayers. In Davidson v. New Orleans, 96 U. S. 97 (24 L. ed. 616), an assessment of certain real estate in New Orleans for draining swamp lands of that city was resisted. The Supreme Court held that “Neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the valúe of the lands assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the State authorities are controlled by the Federal constitution.” In County of Mobile v. Kimball, 102 U. S. 691 (26 L. ed. 238), an act of the General Assembly of Alabama which provided for the improvement of the Mobile harbor at the expense of "the county of Mobile was attacked. In the opinion (p. 703) Mr. Justice Field said: “Here the objection urged is that it fastens upon one.county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. "When hny public work is authorized, it rests with the legislature, unless restrained by constitutional provisions, to .determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among the counties," or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and immediately benefited by the expenditure.” In Giozza v. Tiernan, 148 U. S. 657 (13 Sup. Ct.
The amendment under consideration did not declare that certain persons should pay a tax, and that others in the same class should be exempted. It did not arbitrarily place the burden of supporting the State government upon certain taxpayers 'or even certain counties. It classified certain judicial circuits having in them a county containing a city of not less than a certain population, by the census of 1900. At the time of the adoption of the constitution there were sixteen judicial circuits in the State. It was recognized that there were certain inequalities in the business in those circuits and in the labor of the judges. An ordinance was passed which contemplated an equalization as far as practicable. Civil Code (1910), § 6616. Since then by various acts the number of circuits has been increased, and certain changes have been made in the counties included in them. But apparently no complete method of equalization has been found practicable. The Augusta circuit is composed of four counties. Of these Bichmond county far excee.ds in wealth and population any of the other three. Becognizing the increased business and the consequent increased need for the sitting of the superior court in that county, the legislature provided for four terms to be held there each year, while in the other counties of the circuit two terms were held. It is to be presumed that the legislature, in proposing the amendment to the constitution, and the people in ratifying it, found legitimate reason, grow
It was argued, that, if such a precedent were set, a two-thirds majority in the legislature and a mere majority of the voters could impose on any county, city, or set cf taxpayers the burden of sustaining the entire State government or any part of it, at their will, and thus some could make tyrannous exactions of others, to benefit themselves. We can not accede to the proposition. The difference between such a procedure and a Iona fide classification of judicial circuits on account of population, wealth, business and requirements of sessions of the court and services of the .judge, is apparent. In Grim v. Weissenberg School District, 57 Penn. 433 (98 Am. D. 237), Sharswood, J., said that “Perfectly equal taxation will remain an unattainable good as long- as laws and government and men are imperfect.” In Head Money Cases, 112 U. S. 580 (5 Sup. Ct. 247, 28 L. ed. 798), Mr. Justice Miller said: “Perfect uniformity and perfect equality of taxation,, in all the aspeots in which the human mind can view it, is a baseless dream.” With the wisdom or expediency of -the amendment this court does not deal. The legislature and the people have passed upon that.
It was argued that this amendment was retroactive and sought to confirm payments of salaries made before its passage under an unconstitutional act. The constitution of the United States prohibits the passage of an ex post facto law, or law impairing the obligation of contracts. Constitution of U. S., article 1, section 10, paragraph 1. It does not in terms prohibit retroactive legislation, though such laws may often be invalid as impairing the obligation of contracts, depriving persons of their property without due process of law, or depriving them of the equal protection of the laws. Prohibition of retroactive laws eo nomine is a safeguard of the State constitution against dangerous legislation. In the absence of constitutional restriction, it was held in United States v. Realty Co., 163 U. S. 427 (16 Sup. Ct. 1120, 41 L. ed. 215), that Congress has the power to determine whether claims on the public treasury are founded upon moral and honorable obligations, and upon principles of right and justice; and that, having decided such questions
This case was not one turning upon contested issues of fact, but was controlled by questions of law. In theii solution we have not been able to concur with the trial judge. The mandamus absolute should have been granted.
Judgment reversed.