Butner v. Boifeuillet

28 S.E. 464, 100 Ga. 743, 1897 Ga. LEXIS 136

• Court: Supreme Court of Georgia
• Decided: March 29, 1897
• Status: Published

Opinion

Atkinson, Justice.

The plaintiff in error filed a petition praying permission to file an information against the defendant, and that the writ quo warranto do issue to inquire upon what authority he was exercising the duties of the office of chief of police of the city of Macon. The petitioner alleged, that on December 16;th, 1895, he was duly elected to the office of chief of police of said city, and qualified as such; that the term for which he was elected was two years next ensuing the date of his election; that upon qualifying, he entered upon the discharge of his duties, and continued to perform them until December 31st, 1896, and that notwithstanding his rights in the premises, the defendant, on 'the date last named, usurped, and th’encefofith held, and conlMnued to exercise ■the duties of the office of chief of police of the city of Macon, denying to the petitioner 'the right to enjoy the office in question. The defendant answered, denying -tíhiaifc the plaintiff had a legal title to this office. The election of the plaintiff in error, and hiis qualification, 'as stated in the petition, were admitted; but it was insisted, that subsequent to his election, the General Assembly, by an act approved December 11th, 1896, had repealed the provisions of the charter of the city of Macon, under and by virtue of which the plaintiff was elected chief of police, and thereby abolished the office -of 'chief of police, .thus extinguishing whatever title plaintiff may -have had to that office, and that by virtue of an election held subsequent to the act above mentioned, the defendant held the office of chief of police, as ■recognized and created by the terms of that act.

Upon the hearing, the trial judge had before him.the provisions of -the various acts incorporating the city of Maeon, -which will be hereafter referred to; certain other documentary evidence showing the adoption hy popular ■vote of the provisions of the act of 1896, in so far as they .applied to 'the .office of chief of police and the police commission of the city, and likewise showing -the action of the mayor and council in electing the defendant to the office, the duties of which he was then and is now exercising. 'The trial judge reached the conclusion that the plaintiff .had not prima facie established a title to the office by the terms of the petition, and therefore denied to him the right to file the information as prayed. To this judgment of the presiding judge the plaintiff excepted; and we are now to consider whether error was committed.

1, 2. To a correct understanding of the questions made in this case, it will be necessary to state in some detail the .history of the legislation -by which charter powers have been ■conferred upon the city of Macon. Prior to the year 1871, the original charter .of the city of Macon had undergone .many changes, in consequence of the passage, from time to time, of acts by the General Assembly modifying and enlarging the powers conferred upon -that municipal corporation. By an act approved December 11th, 1871, however, the General Assembly enacted a statute which was entitled, ‘“An act to amend an act entitled an act to alter and amend the several acts incorporating the city of Macon, approved December 27th, 1847, and the several acts amendatory thereto; to grant additional powers to the Mayor and Council of the City of Macon, and for other purposes.” By that act the office of chief of police was established as a distinctive municipal .office, ’his title resting upon direct and express legislative action, which prescribed the duties of his office, provided for the manner of his election, .and fixed his term. That act prescribed ita terms, “That a chief of police, who* shall be ex officio marshal of said city, shall be elected by said mayor and aldermen at their first meeting after said election, or within (two weeks (thereafter. The term of said chief of police shall be the same as that for which said mayor and aldermen are elected; and he shall give a bond with two or more good securities in the sum of ($15,000.00) fifteen thousand dollars, for the faithful performance of his duties, as chief of police and marshal of the city of Macon. He’ may be dismissed .at any time by -the vote of a majority of the members of the council, for malpractice in office, neglect of duty, drunkenness or other improper conduct, to be* judged of by the council; and in this event a successor shall, be elected to fill his unexpired term. In ease of the resignation, removal, dearth, or disability of 'the chief of police, the* police officers of said city next in rank shall perform the duties of said officer until the removal of said disability, or until a successor shall have been elected to fill the unexpired term.” (Acts 1871-1872, p. 11.9.)

By an act approved November 21st, 1898, the General Assembly, in more comprehensive terms than had .been theretofore employed in any of the previous acts respecting the city of Macon, granted a new charter to it. The act then passed was entitled, “An act to create a new charter for the city of Macon, to consolidate the acts relating to the rights and powers of said corporation, and for other purposes” ; and at its conclusion provided, “That all laws and parts of laws in conflict with this act be, and the same arc, hereby repealed.” By the 32d section of that act it was-provided, “That the police force of the city shall consist of a chief of police, two lieutenants, and such other officers- and men as the mayor and council may by ordinance prescribe. . The term of office of the chief of police and the* two lieutenants shall he for two years, but such officers shall be subject to removal, as hereinbefore provided.” It created a board of police commissioners, who were authorized to elect the police officers, including the chief of police whose -office was created by tbe terms of that act. (Acts of' 1893, p. 240.)

On the 11th day of December, 1896, the General Assembly passed still 'another act, which was entitled, “An act to-amend the charter of Macon, relating to the law now governing board of public Works, 'the po-liee commission, the fire commission; lito provide for deficiencies in the revenue of the city; to provide for compensation of the board of health; and giving authority to /the mayor and council providing-for the paving of streets, alleys and sidewalks of said city,, and for other purposes.” By terms of that adt the General. Assembly repealed section 32 of 'the act of 1893, providing, however, tihlait before /the repealing statute Should become operative, -the question should be srrbmittod -to a popular vote. This was done; and 'the mayor -and council, conceiving that the -office of chief of police had been abolished-by -the repeal -of the provisions of the charter under which it-was created, proceeded -to -elect a new chief -of police, which last action they were authorized to take under the provisions-of the adt of 1896.

The plaintiff in error -contended first, that the act of 1896-was not intended to, and did not repeal the provisions of' the act -o-f 1893, creating the office -of chief of police; second, and that even if Whe act of 1896 was -constitutional, and the provision of the act of 1893 relating to that office was' in f-act repealed, the legal effect of that repeal was to restore as operative law the provision of the act of 1871, which created the -office of chief of police for the -city of Macon as-a distinctive municipal office; that the act of 1896, in so far as it undertook to repeal the act of 1893, was inoperative, for the reason that, in so far as the act affected the office of chief of police, it contained matter different from that expressed in the title, and was therefore unconstitutional; and consequently that if the act of 1896 -did not repeal the act of 1893, or was itself unconstitutional, the -office of chief off police, to which he lad. been elected, was still existing, and tie mayor and council lad no power to 'elect a new officer to that office during the term for wlicl he was elected, or if the act of 1896 were effective as a repeal of the act of 1893, ho would Still he entitled to (the office, under the provisions of the act of 1871.

We will first enquire whether the act of 1896 repealed •the act of 1893, and if so, whether the repeal of that act had the effect to revive the provisions of the act of 1871. It cannot be doubted that the act of 1896, if constitutional, .and concerning that question we will hereinafter inquire, .repealed the provisions of section 32 -of tbe act of 1893. We aró not left to implication to determine that question, for section 32 of the act of 1893 is stated in the body of the act of 1896 in totidem verbis, and -the' General Assembly -declared that said provision of the charter shall be “and the ¡same is hereby repealed,” following that with the proviso, that, -touching that provision, -the mayor and council should by popular vote ascertain the wishes of the people of Macon with respect thereto, and if by popular vote it should be so ■ decreed, that that section of the act should thenceforth be of no force -and effect. It will be borne in mind that the section of the charter of Macon above referred to was one which, under the new order of 'things established by the grant of a new charter to the city of Macon under the act •iof 1893, etfelalted itlhe ¡office of ohiief of police. The ratification of this legislative provision by popular vote abolished the law under which the office of chief of police, as a distinctive municipal office, was created, and as effectually extinguished it as though no such office had ever existed. 'Concerning this latter proposition there can be n-o serious ■question, unless -the repeal of the provisions of the act of 1893 operated to restore as law the pre-existing provisions hearing upon the same subject, which were contained in the act of 1871. While the general rule seems to be that where ¡¡the provisions of .an act, repealing a prior statute upon the same general subject, are in turn themselves repealed, such x-epeal operates to restore ito their 'efficacy as law the provisions-of the jxrior repealed statute, such general rule is not without clearly defined and well recognized exceptions. The’ rule itself rests upon the theory, that each expression of the-legislative mind represents the legislative intent at the time; of that expression, and that the repealing statute indicates-a change of the legislative pui’pose as expressed in the prior-law, iand, 'therefore, when ithe repealing statute is in turn, repealed, without any reference to the pre-existing law, the' presumption is that the legislature intended by -the repeal to-restore the order of things existing under the -repealed statxxte; hut this rule can have no application in a case where' the statute repeals absolutely a prior existing la.w, axxd substitutes for it another and more comprehensive scheme of legislation, which underbakes to deal with the whole subject to which the prior statute relates. Accordingly it has be'en held, that “the repeal of a statute which was a revision of and a substitute for a former act to the same effect which was, bhex'efore, -repealed, cannot he deemed to revive the previous act; for -this would be plainly contrary to the intention of the legislature.” So /also, “where ia statutory provision has been repealed without change in the amendatory act and the latter is afterwards repealed, the original provision is repealed also.” Sutherland on Statutory Construction, p. 229. One of the best practical illustrations of this; rule is to be found in our code, which is intended to, and does contain a -complete revision iand restatement of 'the law bearing upon the various subjects upon which the General Assembly has seen proper to legislate. It could not be-supposed that in a given case where the legislature passed an act repealing a section of the code, its purpose was to' revive the provisions of previous acts of the General Assembly which dolad been incorporated in that section of the code.. In such a case, the contrary presumption would arise, 'that; the General Assembly intended a repeal of -all of the statutory provisions upon that subject.

The -act -of 1893, according to its title, was -intended to recreate the city -of Macon as a corporate entity, to endow it with a new life -as distinguished from 'the old. It expressly repealed its previous charters, and .thereby extinguished it .as -a corporate being, and ©ven 'without an express repeal of the previous charter, th© grant of a new one re-created the ■city of Macon, and would have had 'the effect to repeal the prior charter provisions bearing upon the same subject. 'This was held in the case of Bultler v. Russel, 3 Clifford, 251, .in which case Justice Clifford, of the Supreme Court of the United States, presiding on the circuit bench for the first ■circuit, laid down the rule to be as follows: “Where the prowlsions of the old statute are revised in the later enactment, and where the later statute was intended to prescribe the only rules upon the subject, the subsequent is held to- repeal •the former statute. When a revising statute covers the whole subject-matter of antecedent statutes, it virtually repeals the former enactments, without any express provision to that effect. Where some parts of the revised statute are ■omitted in the new law, they are not, in general, to be regarded as left in operation if it cleaady appear to have been .the intention of 'the legislature to cover the whole subject •by the revision.” So that, even without an express provision repealing the act of 1871; when the act of 1893 was passed by the General Assembly, the old city of Macon died, and the new city of Macon was horn. Under its new charter, it entered upon its new life, and during the continuance of that life the relator was elected to the office of chief of police. The passage of 'the act of 1896, repealing ■the provision of the act -of 1893, which created the office of chief of police, does not, however, present the case- of a repeal which is silent upon the subject to which the repealed ■statute related. Upon the eontaury, it re-enacts some of the provisions of 'the repealed statute, ¡and substitutes another •and totally inconsistent provision touching the office of the ■chief of police. Under 'the act of 1893, the term of office and duties of the chief of police were clearly defined. The •duty of electing the officer was committed to the hoard of police commissioners. By the act of 1896, the office of •chief of police is no longer recognized as a legislative office. The mayor and council may elect a chief of police. The term of his office is not fixed, nor are -his duties clearly preambled by statute. Tihe 'presumption is, that the General Assembly intended to commit thialt subject 'to the discretion ■of the mayor and council. So that in the present case we are confronted with a repealing statute which undertakes to substitute provisions of its own in lieu of those contained, not only in the statute which lilt in terms repealed, hut also in lieu of the provisions of the statute which was repealed by the act which it in turn repealed. It would seem to us absurd to impute to the General Assembly a purpose to revive ■the act of 1871, when by adt of 1893 it had xxnidenbaken ■to make provision xxpon 'the sarnie general subject, but in a •different manner, for -the election of an officer apparently corresponding to that of chief of police as 'recognized by the acts of 1893 and 1896. We therefore reach the conclusion, that the repeal of those provisions 'establishing the office of chief of police, incorporated in the charter of the city of Macon by Itbe adt of 1896, Which were enacted in the course of a legislative revision and restatement of the • charter provisions 'of 1871 bearing upon the sam'e general subject, does not of itself operate as a revival of tbe same or similar provisions of tbe ladt of 1871; and further, that upon the repeal of .tihe provisions of -the act of 1893, the reenactment of such provisions in the act of 1871 was -necessary to restore their force ias law. Especially is this -true where, as in the present ease, the act of 1896 in terms sub- * statutes other and inconsistent provisions upon the same subject; and it follows as a consequence, tbat the office of chief of police 'being dependent upon the continuance of the charter provision under which it was created, when that charter provision is repealed the office is extinguished. If this be true, then the -office to which this relator was elected was; abolished by 'the -act of 1896. His -title rested upon the. charter provision under which he was elected. That charter provision being repealed, 'and there being nothing in the-repealing act saving him frlom the operation of its provisions, his team of -office was extinguished.

3, 4. We have proceeded itihus far np-on the- supposition that the act of 1896 -did not contravene that provision of the-constitution -of this State, -which prohibits the passage of an. act by the General Assembly -containing matter variant, from that -expressed in -the title; -and we will n-o-w proceed, to inquire as to whether -the objection that the -act -was unconstitutional is -well founded. It will be seen by reference to -the title of the -act, which i-s hereinbefore set forth, -that, it was designed to be an act to amend the charter of Macon, in certain parts therein stated, and generally “for other-purposes.” T-h-e office -of chief of police, as we have seen before, was a distinctive municipal office existing under the charter of the city of Macon. It could not fall pr-operly within -either of the particular subjects specified in the title-of the 'act, and the objection that the act is unconstitutional, in so far as it undertakes to ¡abolish the office of chief of police, is well founded, unless it is met by the use of the-words, “for other purposes,” expressed in the title. Different opinions may prevail elsewhere -as to the value of these-words as descriptive terms -in the title of an act of the General Assembly; ¡they have in ¡this State a fixed legal significance, and the courts in passing up-ou the constitutionality of the acts of the General Assembly are not authorized to disregard it. As early -as the year 1849, in the case of Martin v. Broach, 6 Ga. 21, this court, in considering the-constitutionality of an act, held, in dealing with an -o-bjec-' tion that -the b-ody of an act contained matter -different from that expressed in the caption: “Where the title specifies-some of the objects for which the statute was passed, and contains this general clause, fend for other purposes therein. contained,’ portions of the act not specially indicated in the title -are, nevertheless, good under this general clause.” There has been no substantial departure from this construction of the constitutional provision in question, and it was distinctly recognized 'and reaffirmed in the case of Black v. Cohen, 52 Ga. 621, as well as in numerous other eases which it is not necessary here to cite; and this notwithstanding the apparently conflicting view presented by Judge Trippe in delivering the opinion of the court in the ease of Board of Education v. Barlow, 49 Ga. 232. Such words may well include and render constitutional incidental provisions which are germane to, and bear a generic relation to, the general subject expressed in the title. In .'the present ease the general subject with which the General Assembly was undertaking: to deal was 'that of amerudmemlts to 'the charter of Macon. Certain specified proposed amendments were indicated in the title, and the words “for other purposes” should legitimately have directed the attention of the General Assembly and the public to those matters comprehended within the general scope of .the act Which (operated to amend the charter of the city of Macon. The abolition of the office of chief of police, and the substitution of another office of like kind were both gemíame to 'the general purposes of charter amendments expressed in the title. They were kindred subjects, closely related to the particular objects expressed in the title; and we do not feel constrained to hold, that the mere enumeration of certain particular objects concerning which the charter should be amended could have the effect so to restrict, as entirely to destroy the force of the general words expressed at the commencement and at the conclusion of the title.

We hold, therefore, that the act of 1896, in so far as it undertook to abolish the office of chief of police of the city of-Macon, and to substitute in lieu thereof the provision that the mayor and council could elect a chief of police for the city of Macon, was not unconstitutional; and since the •office to which the relator was elected was abolished, and his term, in consequence, extinguished, ¡foe exhibited no title to •the office in question, and the court did not err in refusing his application for leave to file the information quo warranto.

Judgment affirmed.

All the Justices concurring.