| Ga. | Feb 15, 1881
We have given this case that deliberate consideration which its gravity as well as the services of the plaintiff in error with so much zeal and such industry and ability during .a long period as the comptroller general of the state, demanded at the hands of her judiciary.
Speaking for myself, I wish to express sympathy for this tried and trusted servant of Georgia, whose integrity not a breath of suspicion ever sullied, and whose fealty to the state in the most trying period of her history never for an instant faltered ; and I believe my brethren fully
But the general assembly has so narrowed the scope of our jurisdiction and guarded the limits within which the courts may act, that we cannot do more than consider the case as made within the prescribed limits, and not move beyond them. The citizen cannot sue the state unless she consents, and if she consents on terms, those terms must be considered as part of her grant of the right, and confine her courts to the consideration of the right with the conditions thereto attached and made part and parcel of the grant. The grant is as follows :
“Whereas, Peterson Thweatt, former comptroller general of the state of Georgia, claims that the state is due him the amount of $6,250.00 principal, besides interest, for his salary as comptroller general for the political years 1862, 1863, 1864 and 1865 ; and '
Whereas, said Peterson Thweatt desires to bring suit against the state for the purpose of establishing and collecting his said alleged claim, and offers to give bond and security to the state to pay all costs and expenses of the suit should he be cist theicin ; therefore, be it
Resolved, by the general assembly of Georgia, That said Peterson Thweatt be permitted to institute suit in the county of Fulton against the state that he may, if he can do so, establish his alleged claim, and that said suit may be instituted on the following conditions :
Before entering such suit' the said Peterson Thweatt shall enter into a bond with at least two good and solvent securities to be approved by the governor, which bond shall be payable to the governor or his successors in office, and shall be conditioned to pay, in the event that he is cast in said suit, all the costs of said case and also such amount of fees as the governor may pay, or contract to pay, in defending such suit, should the governor deem it necessary to employ counsel to assist the attorney general in defending such suit. That the declaration in the suit herein provided for be served on the governor under the same rules that apply to serving declarations in ordinary law suits; that said Peterson Thweatt shall not sue the state on any claim based on or under any law or laws that were passed during the late war between the states, either to obtain increased pay or the pay under said law for his salary as comptroller general; that the suit be tried in Fulton superior court in March or April next unless continued under*680 rales of law applicable to continuance of cases; that the statute of limitations shall not be pleaded by the state or by plaintiff's attorney; and that the state and plaintiff shall be bound by the issue of said case with right on part of the state to file a writ of error or to move for new trial as usual. Any verdict the said Peterson Thweatt may obtain in his favor (if any be obtained) is hereby referred to the act of any future legislature. That this resolution is not intended to have any greater effect in law than other joint resolutions that have already passed, or may hereafter be passed, by the general assembly, and that shall be signed by the governor when said resolutions were read only once or twice in each house, and when the same passed without being required to have more than a majority of the members present voting on their passage.”
It is-clear, from the preamble to this resolution, as well as from its entire scope, that the suit Mr. Thweatt was empowered to bring was for his salary; and the record shows that such is the suit which was brought. It is not a suit for payment of the treasury notes or bonds which the state issued during the war and in which Mr. Thweatt was paid, and which turned out to be of no value; but it is a suit for the salary — the original salary, of Mr. Thweatt. By the words italicized in the copy of the act above written (italicized by me), laws passed by the state during the war are expressly excluded from being considered by the courts. Whether or not the currency she then issued was legal is thus not before us, and we are confined to the question, did he get his salary in that currency which circulated as money, and which all other creditors of the state received as money?
It seems to have been the purpose of the general assembly to narrow the case to the single question, is the salary due to Mr. Thweatt as salary? On that point it is clear that he gave up his warrants for salary for these notes, and thereby extinguished the salary, holding the notes in its stead.
Moreover, it appears from this resolution that strict' rules of law are to be applied to the case made, and within these rules the courts are confined. If broader views of
The case made is a suit for the salary of the comptroller general for 1861 and the subsequent years of the war, and the question is, has that salary been paid ?
It 'appears that Mr. Thweatt surrendered to the treasurer his warrant on the treasury for his salary, and received in lieu thereof treasury notes which circulated as currency at the time. He was thus paid in that currency. The treasurer settled with the state, and was allowed credit for the comptroller’s salary as thus paid. The debt, therefore, for the salary was extinguished, and it is that debt on which suit is brought, and which alone is before us.
Any private understanding between the treasurer and the comptroller general as to the use to which the latter meant to apply the notes, even if it had been approved by the governor, could not affect the question, because such understanding could not bind the state.
Applying the rules of law to the case made, we cannot see how the court below could have ruled otherwise than to grant the non-suit. The suit is not on the notes as promises to pay at a certain time and on a contingency. Such a suit as that would present a different question, which we have no jurisdiction now to pass upon, and which we need not consider at all, as the result would be fruitless.
Judgment affirmed.