52 S.E.2d 600 | Ga. | 1949
1. The General Assembly may make classification for the purposes of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in any county or city which by any future census might have the stipulated population.
2. An amendatory act may amplify or restrict the provisions of an existing law. The amendatory act will not be held to have repealed a provision of the original act by implication except in those cases where the conflict between the original act and the amendatory act is clear and the provisions of the two acts can not be harmonized.
The petition further alleged: The act of the General Assembly of 1947, p. 1635, is unconstitutional, null, and void, in that it violates the Constitution, art. 3, sec. 7, par. 15 (which is quoted), in that no notice of intention to apply for the act was published in the manner required, no certificate by the publisher is attached to the enrolled bill, and no affidavit by the author of the bill to the effect that notice had been published is attached and made a part of the bill as enrolled. The act of the legislature requiring retirement of employees at the age of seventy years is null and void, in that it is class legislation, whereby it includes all employees who have attained the age of seventy years and does not affect those employees who have not attained the age of seventy years, and is not uniform in its operation, in violation of the Constitution, art. 1, sec. 1, par. 2, which provides: "Protection to person and property is the paramount duty of *118 government, and shall be impartial and complete"; and is in further violation of art. 1, sec. 5, par. 2, which provides: "The enumeration of rights herein contained as a part of this Constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed." Section 6 of the 1947 act denies to him the right to work and earn a living, and it is not impartial, in that it allows persons who have not reached the age of seventy years the right to work for the city, and denies such right to those who have reached the age of seventy years. He contends: (1) that he is entitled to his salary for the months of January and February, 1948, because he has never been legally discharged, and the act forcing him to retire at the age of seventy years is unconstitutional for the reasons stated; (2) if such act of the legislature is valid, then under section 6 of the act he is entitled to a pension equaling 17/25 of the amount of the salary he was drawing as of January 1, 1948; and (3) if he is entitled to the pension, it should be paid by the city or from the pension fund. The City of Atlanta and the board of trustees of the pension fund have denied him the right to either of the reliefs claimed by him, and there is an actual controversy between him and the city. All of the defendants named are interested in the case and the subject-matter thereof.
The prayers were: (a) that the 1947 act be declared unconstitutional, null, and void, and the plaintiff declared entitled to his salary; (b) in the event the act is constitutional, then it be declared that, by reason of section 6 of the act, the plaintiff is entitled to his pension in the amount of 17/25 of his salary as of January 1, 1948; (c) if he is entitled to a pension, then it be declared whether it shall be paid by the board of trustees of the pension fund from such fund, or be paid directly by the city; (d) upon the declaration of his rights, that he have judgment ordering the sums to be paid to him; and (e) for other and further relief.
The general demurrers of the defendants, as renewed after the amendment, were sustained, and the exception here is to the sustaining of the demurrers. *119 1. The plaintiff in error contends that the act approved March 28, 1947 (Ga. L. 1947, p. 1635), amending an act approved August 20, 1927 (Ga. L. 1927, p. 265), is unconstitutional; and that the requirement of the amendatory act, that he be retired at the age of seventy years, is therefore null and void, and he is entitled to compensation from the City of Atlanta. If it should be determined that the amendatory act is constitutional, then the plaintiff in error contends that he is entitled to a pension under section 6 of the amendatory act.
The plaintiff in error contends that the amendatory act of 1947 is a local or special law, and that it was enacted in violation of the Constitution, art. 3, sec. 7, par. 15 (Code, Ann., § 2-1915), providing for the advertisement of all local or special acts. Neither the original act of 1927, nor the amendatory act of 1947, is prima facie a local or special act. The original act of 1927 by its caption provides in part: "An Act to provide that cities having a population of more than 150,000 by the United States Census of 1920, or subsequent census, shall, etc." The caption of the amendatory act of 1947 follows the caption of the original act. As shown by the captions of the original and the amendatory acts, the legislature made a classification for the purpose of legislation, and enacted what purports to be a general law applicable to all cities falling within the classification made.
In Stewart v. Anderson,
It is contended by the plaintiff in error that the classification in this case on the basis of population is such as to make it apply to only one city, and that an examination of the last Federal census will reveal that this is true; and in addition it is contended that it will probably be many years before any other city in the State would come within the classification made. It has been approximately nine years since the last Federal census, and this court is not advised, officially or otherwise, as to the growth or increase in population in any of the cities of this State. Legislative acts, however, will not be upset upon speculation as to what may or may not exist. In order to justify declaring an act of the General Assembly unconstitutional and void, the conflict between the act and the Constitution must be clear and plain. Flint RiverSteamboat Co. v. Foster,
The contention of the plaintiff in error, that the requirement of the amendatory act, that employees shall retire upon reaching seventy years of age, violates art. 1, sec. 1, par. 2, and art. 1, sec. 5, par. 2, of the Constitution, is clearly without merit. In Cooper v. Rollins,
2. By section 6 of the amendatory act of 1947 it is provided that all officers and employees shall be compelled to retire at the end of the calendar year following their seventieth birthday, and it is further provided in section 6: "All such officers and employees shall be entitled to a pension when so retiring, whether they have served 25 years or not. For example, if such officer or employee has served 10 years, he shall be entitled to 10/25ths of the pension that he would be entitled to had heserved 25 years." (Italics ours.) It is contended that by this provision a pension is granted to all employees upon reaching the age of seventy years, although it is conceded that the plaintiff in error did not contribute to the pension fund.
The amendatory act does not purport to repeal the provisions of the original act, section 7, which provides: "In case any employee or officers objects to the deduction of said salary or wages of said two per cent, or otherwise objects to the payment of said two per centum, such officer or employee shall not be entitled to the pension provided by this act."
Had the plaintiff in error served 25 years under the terms of the original act, he would not be entitled to a pension, since he declined to make himself eligible by paying the required amount to the pension fund. Section 6 of the amendatory act supplements the original act so as to extend the provisions of the act to persons who have reached seventy years of age, but who have not served 25 years. The purpose of the amendment is to allow such persons who had qualified and made the payments required by the original act to draw a pension based on the period of their employment. Section 7 of the original act is not repealed by the amendatory act of 1947, either directly or by implication. The provisions of section 7 of the original act and section 6 of the amendatory act are entirely in harmony. In order for any employee to receive a pension, he must have contributed to the pension fund. The plaintiff in error elected not to contribute to *122 this fund. By his election he has barred himself from coming within the provisions of the act as a pensioner.
Since the petition does not set out a cause of action for any relief prayed, it was not error for the trial court to sustain the demurrers thereto.
Judgment affirmed. All the Justices concur.