149 Ga. 632 | Ga. | 1919
Lead Opinion
We have next to consider whether the act of 1918, abolishing the fees pertaining to the office of the solicitor-general of the Cordele Circuit and prescribing a salary in lieu thereof, payable out of the treasuries of the counties of the circuit, violates the provision of the constitution as to the taxing powers of counties (Civil Code, § 6562), which is as follows: “The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational purposes in instructing children in the elementary branches of an English education only; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads, and expenses of courts; to support paupers and pay debts heretofore existing; to pay the county police, and to provide for necessary sanitation.” It must not be left out of view that counties are not wholly dependent upon taxation for revenue. See Civil Code, § 529. The very act under attack diverts to the county treasuries of the judicial circuits the fees and emoluments accruing to the office of the solicitor-general of the, circuit; and it is a fair presumption that these fees will be sufficient, or more than sufficient, to pay the salary of the solicitor-general prescribed in lieu of the fees abolished in his circuit. The presumption is not without a basis of fact. Tn 1912 the General Assembly passed an act- requiring all State-house officers, officers
The overplus of the fines and forfeitures, prior to the; constitution of 1877, was payable to the county treasuries for specified purposes, it is true. See sections 846; 1112, 1113, 1114, 1116, 1117, 1118, 1119, and 1121 of Penal Code of 1910. Prior to the constitution of 1877 the General Assembly had provided for the payment of certain insolvent, criminal costs in the Augusta judicial circuit out of the county treasuries. Acts 1873, p. 225. The act of 1918, under attack, makes it the duty of the ordinaries, county commissioners; or other county authorities having control of county matters in the judicial circuit in question, “to make provisions annually, when levying taxes for the expenses of courts, for the levying and collecting of sufficient taxes in their respective counties for the purpose of paying the portion of said salary chargeable against their respective counties.” In the case of Adair v. Ellis, 83 Ga. 464 (10 S. E. 117), Simmons, J., apparently overlooking the act of 1873, supra, said: As far as we know or can ascertain, the fees and costs of solicitors-general have never been regarded as expenses of court, to be paid from the county treasury." But it was not held that the fees and costs of solicitors-general might not, by legislative enactment, be declared to be expenses of court. To quote the language of Mr. Justice Simmons: “It may be argued,
The act- is not unconstitutional for any of the reasons urged against it; and the judgment of the court below sustaining it is
Affirmed.
Dissenting Opinion
(with whom concurs Atkinson, J.), dissenting.
In Clark v. Hammond) 134 Ga. 792 (68 S. E. 600), it was held that the salaries of judges of the superior courts could not be augmented by local taxation. The case of Clark v. Black, 136 Ga. 812 (72 S. E. 251), did not have reference to a solicitor-general, who was a State officer, but to the solicitor of a city court, á local officer who had jurisdiction only over the county of Richmond, the existence of which court and its organization, and the payment of salaries of the judge and solicitor by local taxation, antedated the constitution of 1877. Under these circumstances
Article 7, sec. 6, par 2, of the constitution of the State is as follows: “The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational purposes in instructing children in the elementary branches of an English education only; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads, and expenses of courts [italics ours]; to support paupers and pay debts heretofore existing,” etc. It will be seen from the foregoing that the purposes for which the counties can levy a tax are restricted to certain objects which are enumerated. The salaries of solicitors-general are Hot one of those objects, unless .they are included in the language “expenses of courts,” as used in the paragraph of the constitution just quoted. It has been held by this court that salaries of judges of the superior courts are not included in the language “expenses of courts.” Clark v. Hammond, supra. Mr. Justice Atkinson, in a very able opinion delivered in that case, said: “As it -did not [contemplate tire payment of the salary of the judges of the superior courts], and the other purposes to which the levy of the county tax had been restricted by the constitution did not authorize the levy of a county tax to pay salaries of judges of the superior courts, there was no constitutional provision for the payment of the salaries of the judges of the superior courts out of the county treasuries. Thus an additional light is afforded, tending to show, by the language of aft. 6, see. 13, par. 1, of the constitution of 1877, a design to limit the payment of salaries of judges of the superior courts to funds derived from the treasury of the State. The paragraph of the constitution of 1877 which succeeded and immediately followed art. 6, see. 13, par. 1, declared: The General Assembly may at any time, by a two-thirds vote of each branch, prescribe other and different salariéis
An examination of the history of the payment of salaries as such of the judges of the superior courts and of solicitors-general of the State will show , that they have always been paid out of the treasury of the State, and never from the county treasuries by local taxation. The members of the constitutional conventions of 1868 and 1877 left nothing to implication. They provided that these salaries should be paid out of the “treasury of the State.”
The salary of the solicitor-general stands on the exact footing as the salary of the judge of the superior court; and the same reasoning that would prevent the levy of a local tax to supplement the salary of the judge of the superior court, paid by the State, would prevent the levy of a local tax to supplement the salary of the solicitor-general. The ruling therefore, in Clark v. Hammond, supra, is controlling in this case upon the question of the constitutionality of the act of 1918, in so far as it attempts to supplement the salary of the solicitor-general of the Cordele Circuit by local taxation in the several counties of the circuit. This act undertook to deprive the solicitor-general of the fees which might be earned in the Cordele Circuit, and to require the sum
We conclude, therefore, that the act of 1918, supra, is repugnant to the clauses of the constitution quoted, which provide how the salaries of solicitors-general shall be paid; that is, from “the treasury of the State;” and consequently the court erred in granting the mandamus absolute.