Holtzclaw v. Russ, 49 Ga. 115

Holtzclaw v. Russ

49 Ga. 115 | Ga. | 1872

Lead Opinion

Trippe, Judge.

1. The leading question made in these cases, both in the response to the mandamus nisi and in the argument here is, that the District Judge and attorney were not appointed by the Governor with the advice and consent of the Senate, and, therefore, not being appointed according to law, are not entitled to the compensation they ask. The ground upon which the decision of that question is put in this ease, makes it unnecessary to enter into all the argument and learning involved in the discussion in Gormley vs. Taylor, 44 Georgia, 76. In that case, decided at the July term, 1871, it was held by a majority of this Court that the appointment of these officers was legal; and thus sanctioned, they continued in office for several months, with all the responsibilities devolved upon them by law resting on them. The Legislature, on the 7th of December, 1871, passed an Act repealing the Act organizing the District Court, and in the second section of said Act enacted: “ That it shall be the duty of the clerk of the District Court to transmit all cases now pending on the civil or criminal docket of said Court to the Superior Court, which said Coiort is hereby vested with jurisdiction over the same.” This Act was a legislative recognition of the legal existence of the District Court and its officers, and that civil and criminal cases were legally on their doclcets; else it could not have *118directed that such unfinished business should be transmitted to another tribunal, and vested that tribunal with jurisdiction over it, and with power to finish it. On the 13th of the same month, another Act was passed “to compensate the clerk and sheriff of the Superior Court, and other officers of Richmond county, for services rendered in the District Court,” etc., and thérein directed that they should be paid “out of the tax levied in said county for the expenses of said Court.” The District Judge and attorney having thus filled a large portion of their actual term of office after this decision of the highest judicial tribunal of the State, and the Legislature having thus recognized the validity of the organization of the District Court, and necessarily, the legal existence of its officers, forces the conclusion that they are entitled to the compensation provided by law, without inquiring into the mode of their appointment, or deciding the question whether or not it was strictly according to law.

2. The Constitution of the State, Article V., section 10, paragraph 2, provides that there shall be an “equitable apportionment of the compensation of the District Judges and attorneys between the counties composing their districts.” The Act of 1870, organizing the Court, says: “There shall be levied in the several counties composing each Senatorial District, such tax upon the taxable property returned therein, as together, will raise an amount sufficient to pay the salaries of the District Judges and attorneys,” etc. The proper construction of these provisions, in determining what is an “ equitable apportionment,” is, that the tax to be levied in each county shall be in the proportion its taxable property bears to the aggregate taxable property of the district. Any other rule would work a discrimination in the percentage of tax to be levied in the several counties. If levied in the ratio of population, then one county, having three-fourths of the population of another county, though more taxable property, would pay only three-fourths of the tax paid by that other. In many instances the disproportion in the percentage of tax levied would doubtless be greater than in the instance given.

*1193. We do not think the compensation provided in the statute bears interest, if not paid, from the different periods of payment prescribed in the statute. We know of no instance where a salary has been held to draw interest. The District Judge is a public officer, recognized by the Constitution. His salary is payable quarterly, as other officers of the State, and though the law directs that the money collected for his payment shall be paid into the county treasury, and by the county treasurer paid to him, we do not think it changes the question as to interest, so as to make it different from what it would be if it were required to be paid into the State treasury, and to be paid out by the State Treasurer.

It was not incumbent on these officers to show that they had taken the oaths prescribed by statute or that the bond required of one of them had been given. If they have the proper commissions, the compliance with these provisions is presumed. If it were a fact that the oaths had never been taken or that the bond had never been given, the question would be different. But an omission to recite these facts in the application, was not demurrable, nor could the issue be made without a denial on the part of the respondent, that all this or any one had been done. As to the necessity of these applicants showing that their claims have been ascertained by suit or judgment, or that they had demanded payment of their salaries, the statute prescribes what the salary shall be and how it shall be levied and paid.

Judgment affirmed with instructions.

MoCay, Judge, concurred, but furnished no opinion.

Dissenting Opinion

Warner, Chief Justice,

dissenting.

I dissent from the judgment of the Court in this case for the reasons expressed in my dissenting opinion in Gormley vs. Taylor, 44 Georgia Reports, 102.