74 Ga. 41 | Ga. | 1885
In Smith et al. vs. Bohler et al., 72 Ga., 546, we determined every question raised and argued in the present case, except the question now made and insisted upon of the repeal of the power of the Board of Education of Richmond county to raise funds to carry on public schools by an assessment of .taxes upon the property of the inhabitants' of that county, and other property within its limit subject to state and county tax, by the act
The act establishing that court was approved September 22d, 1881, and by the 41st section thereof, the judge of said court was made ex officio commissioner of roads and revenues of the county, aqd was charged with all the duties formerly devolved on the justices of the inferior court as to county business. In the case of Whittendale vs. Dixon & Brother, 70 Ga., 721, this court expressed a doubt as to the constitutionality of this portion of the act. because of its variance from the title of the act, and because the act itself referred to more than one subject-matter.. This suggestion seems to have occasioned the sole necessity for the passage of the act of September 17th, 1883. The preamble recites (acts, 1882-3, p. 528),-1st, these doubts ; 2d, that the grand jury, at the April term, 1883, of the superior court, recommended a separate act creating and continuing the judge as commissioner of roads and revenues; and 3d, that his powers and duties as such commissioner should be the same as were “imposedon
The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction as -almost to establish the doctrine of “ no repeal by implication.” (When the imperative provision of our constitution is added to this strong inclination, majr it not quite establish that doctrine ?) “ But,” continues our author, “this goes beyond the limits of Foster’s case, that such repeal is not to be favored;” and in a recent case, Lord Den-man said, “ While we hold that a positive enactment is not to be restrained by inference, w'e must also act on the maxim, leges posteriores, etc., whenever it comes in operation,” citing Reg. vs. Inhabitants St. Edmund’s Salisbury, 2 Q.B.R., 84; Potter’sDwarris,andthelarge numberof American cases cited in note 4 there. Again, the same commentator says, Id., pp. 156, 157, 158, “Nor hath a later act of parliament ever been construed to repeal a prior act, unless there be a repugnancy or contrariety iii them, or at least some notice taken of the forrper act, so as to indicate an intention in the law-giver, to repeal it. Neither is a bar-e recital in a statute, without a clause of repeal, sufficient to repeal the positive provisions of a former statute. The law does not favor a repeal by implication, unless the repugnance be quite plain, and such repeal carrying with it a reflection on the wisdom of former parliaments, it has ever been confined to repealing as little as possible pf the preceding statute. Although, then, two acts of parliament are seemingly repugnant, yet if there be no clause of non
At last, the question of whether a former affirmative statute is to be considered as repealed by a subsequent act, depends upon the intention of the legislature to accomplish that result, which intention is to be gathered by an appeal to well settled rules of construction. Those above recited are as old as the time of Lord Coke, and will be found in Foster’s case.
The tax in question, in its most comprehensive sense, may be classed as a county tax, but while this is true, it is not necessarily ranked with the tax raised to carry on the ordinary and indispensable business of the county; it is a particular tax, levied for a special purpose, as distinguished from such as is assessed for usual and necessary purposes. The board of education had exercised this power for nine years previous to the creation of the city court in Richmond county, and its authority over the subject does not seem during all that time to have been questioned. Even after that act it was acquiesced in. There being doubts, however, as to the constitutionality of the act, so far as respects the power thereby conferred upon the judge of that court to manage the county business, it became necessary to remove that doubt’, and the act of 1883 was passed for that purpose only. This latter act contains no allusion whatever to the former school board act; there is a manifest difference in the whole purview of both the statutes; they do not apparently relate to the same, but to different subjects; one deals with a special system of education, the other with the management of the ordinary business of the county; they are not necessarily repugnant to each
Each one of these canons of construction has been recognized and applied by this court in decisions rendered prior, to the adoption of the constitution of 1877. In Erwin vs. Moore et al., 15 Ga., 361, 364, 365, 366, the subject is discussed with learning and ability by Starnes, J., and the conclusions we have reached in this instance are there maintained with an irresistible force of logic and authority. The same may be affirmed of the clear and able judgment pronounced for the court by the late Chief Justice Warner, in Patillo vs. The State, 49 Ga., 173, 175. When to these cases we add the clause of the constitution prescribing what the legislation shall contain, to amend or repeal a former law, wo are forced to the conclusion that there is nothing in the act of the 17th of September, 1S83, tending to show that it was the purpose of the legislature thereby to repeal or modify in any respect the act of the 23d of August, 1872. There was, therefore, no error in refusing an injunction to restrain the collection of the tax imposed by the Board of Education of Richmond.county under the provisions of the latter act.
Judgment affirmed.