Cooney v. Foote

83 S.E. 537, 142 Ga. 647, 1914 Ga. LEXIS 489

• Court: Supreme Court of Georgia
• Decided: November 11, 1914
• Status: Published

Opinions

Evans, P. J.

The General Assembly in 1912 (Acts 1912, p. 30) proposed a constitutional amendment to art. 6, see. 7, par. 1, of the constitution of this State by adding thereto a provision “that the General Assembly may, in its discretion, abolish Justice Courts and the office of Justice of the Peace and of Notary Public ex-officio Justices of the Peace in any City of this State having a population of over twenty thousand, except the City of Savannah, and establish in lieu thereof such Court or Courts or system of Courts as the General Assembly may in its discretion deem necessary, conferring upon such new Court or Courts or system of Courts, when so established, the jurisdiction as to subject-matter now exercised by Justice Courts and by Justices of the Peace and Notaries Public ex-officio Justices of the Peace; together with such additional jurisdiction, either as to amount or subject-matter, as may be provided by law, whereof some other Court has not exclusive jurisdiction under this Constitution; together also with such provisions as to rules and procedure in such Courts, and as to new trials and the correction of errors in and by said Courts, and with such further provisions for the correction of errors by the Superior Court, or the Court of Appeals, or the Supreme Court, as the General Assembly may from time to time, in its discretion, provide or authorize. Any Court so established shall not be subject to the rules of uniformity laid down in Paragraph 1 of Section 9 of Article 6 of the Constitution of Georgia.” This amendment was submitted to the people at a general election, and was proclaimed by the Governor as having been adopted as the result of the election. Subsequently a municipal court for the City of Atlanta was created; and it was provided that from the judgment of the appellate division of that court an appeal shall lie by writ of error to the Court of Appeals of Georgia. Acts 1913, p. 145. The question certified by the Court of Appeals relates to its jurisdiction to entertain writs of error from that court, as dependent upon the proposal of 1912 having been submitted and ratified agreeably to the provisions of the constitution. The basal proposition involved in the first question is the applicability of art. 3, sec. 7, par, 8, of the constitution of Georgia (Civil Code (1910), § 6437) to the proposal of amendments to that constitution by the General Assembly. That provision is as follows: “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from. what is expressed in the title thereof.”

1. The word “law” in this constitutional provision is clearly confined to statutes within the power of the General Assembly to enact. What is the meaning of the word “ordinance”? Does it refer to or embrace proposals to amend the constitution? We will first turn to the constitution as furnishing internal aid to its interpretation. The constitution of 1877 consists of a comprehensive arrangement of the organic law in one instrument and certain ordinances attached thereto. It is declared therein “That the Governor shall issue his proclamation, ordering an election for members of the General Assembly, and a vote upon the ratification or rejection of this Constitution, 'as therein provided, and a vote upon the capital and homestead questions, as provided by the ordinances of this Convention.” Civil Code (1910), § 6617. The constitution contains these provisions: Article 12, section 1, paragraph 3 (Civil Code (1910), § 6604): “All laws now of force in this State, not inconsistent with this Constitution, and the ordinances of this Convention, shall remain of force until the same are modified or repealed by the General Assembly. . .” Art. 12, sec. 1, par. 8 (Civil Code (1910), § 6609) : “The ordinances of this Convention shall have the force of laws until otherwise provided by the General Assembly, except the ordinances in reference to submitting the homestead and capital question to a vote of the people, which ordinances, after having been voted on, shall have the effect of constitutional provisions.” Art. 3, sec. 7, par. 22 (Civil Code (1910), § 6450) : “The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.” Art. 3, sec. 7, par. 13 (Civil Code (1910), § 6442) : “All acts shall be signed by the President of the Senate and the Speaker of the House of Bepresentatives; and no bill, ordinance, or resolution, intended to have the effect of a law, which shall have been rejected by either house, shall be again proposed during the same session, under the same or any other title, without the consent of two thirds of the house by which the same was rejected.” When the framers of the constitution came to deal with the subject of amendments, the whole matter was comprehended in its 13th article. There it was provided : “Any amendment or amendments to this Constitution may be proposed in the Senate or House of Bepresentatives; and if the same shall be agreed to by two thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon. And the General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each Congressional district, for two months previous to the time of holding the nest general election, and shall also provide for a submission of such proposed amendment or amendments to the people at said next general election; and if the people shall ratify such amendment or amendments by a majority of the electors- qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments shall become a part of this Constitution. When more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately.” The clause respecting plurality of subject-matters, and the inclusion in the body of an act of matter different from what is expressed in the title, was brought forward from the Constitution of 1798. '“The traditionary history of this clause is, that it was inserted in the Constitution of 1798, at the instance .of General J ames J ackson, and that its necessity was suggested by the Yazoo Act. That memorable measure of the 17th of January, 1795, as is well known, was smuggled through the Legislature, under the caption of an actJfor the payment of the late State troops/ and a declaration in its title, of the right of the State to the unappropriated territory thereof, ‘for the protection and support of its frontier settlements.’ ” Mayor &c. of Savannah v. Georgia, 4 Ga. 38. The provision for the publication of the entire proposal to amend the constitution in one or more newspapers in each congressional district for two months previous to the time of holding the election was manifestly deemed a sufficient notice to the public at large of the exact provisions of the amendment, so that the people might advisedly east their ballots of approval or disapproval of the proposed amendment. Again, it was ordered in that section that amendments should be separately submitted, supplying an additional safeguard against confusion of unrelated objects in one submission. Hence the reason of the rule as to title can have no application in the matter of amendments. There is no need of any caption, as the whole amendment is published in papers of general circulation, thus affording abundant opportunity for the voter to inform himself before he is called upon to vote. The words of par. 8, “No law or ordinance shall pass,” etc., show that they are confined to legislation which the General Assembly may finally enact into law. The General Assembly can not adopt an amendment to the constitution. The legislature may propose it, but the people must adopt the proposal. The provision for amendment of the constitution is dealt with in an independent article, complete within itself. That article proposes the machinery for the amendment of the organic law. The word “ordinance,” as used in the clause under consideration and as interpreted by other clauses of the constitution, has no reference to legislative proposals to amend the constitution.

The word “ordinance” was anciently used to distinguish between certain forms of statutes. “Where the proceeding consisted only of a petition from parliament and an answer from the king, these were entered on the parliament roll; and if the matter was of a public nature, the whole was then styled an ordinance: if, however, the petition and answer were not only of a public but a novel nature, they were then formed into an act by the king, with the aid of his council and judges, and entered on the statute roll'.” Bacon’s Abridgment (A), Bouvier’s Dictionary. ' In Webster’s New International Dictionary, it is said to be “An authoritative decree or direction; specif., any public enactment, rule, or law promulgated by governmental authority; esp.: (1) Eng. Hist. A law or regulation promulgated without the assent of one of the three powers (Crown, House of Lords, and House of Commons) necessary to an act of parliament. . . (3) A local law or regulation enacted by a municipal government, as 'a common council, board of aldermen, or the like. . . Historically the lines of distinction between what is an ordinance and what is a statute were not definitely drawn. The term was specifically applied to various enactments including: (a) Any of the decrees of the Ordainers. (b) The Ordinance of the Eorest (33 & 34 Edw. I). (c) The Ordinance of the Staple or statute staple, (d) Any of the acts of the Long Parliament between 1641 and 1649, as the Self-denying Ordinance.” The act of Congress, passed in 1787, establishing the government of the Northwest Territory is known as the ordinance of 1787.

A proposal by the legislature of amendments to the constitution is not the exercise of ordinary legislative functions, and is not subject to constitutional provisions regulating the introduction and passage of ordinary legislative enactments. It has been held that no title is necessary to a proposed amendment, and if one is inserted it may be disregarded. 6 Am. & Eng. Enc. Law (2d ed.), 906; In Re Senate File No. 31, 25 Neb. 864 (41 N. W. 981); Nesbit v. People, 19 Colo. 441 (36 Pac. 221); Julius v. Callahan, 63 Minn. 154 (65 N. W. 267); Hays v. Hays, 5 Idaho, 154 (47 Pac. 732); People ex rel. Elder v. Sours, 31 Colo. 369 (74 Pac. 167, 102 Am. St. R. 34). We conclude, therefore, that the word “ordinance” in the constitutional provision first above referred to, comprehends any statute or resolution which the General Assembly may constitutionally enact, and does not apply to proposals for amendments to the constitution as initiated by the legislature, pursuant to article 13 of the constitution.

2. Eor the reasons stated in the foregoing division, the proposal of 1912 is not repugnant to art. 3, sec. 7, par. 17, of the constitution, that “the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.” The proposal was to amend a particular article, section, and paragraph of the constitution, by authorizing the establishment of a court. This included all of the machinery necessary to the establishment of that court, including appellate procedure. When the voters adopted this proposal it became a part of the constitution by executive proclamation. Where an 'amendment to 'the constitution has been proposed by the legislature, duly submitted to the voters of the State for ratification or rejection by them, and has been ratified, so that the amendment has become- an integral part of the constitution, it can not be declared void on the ground that in some particular it does not concur with some other portion of the same instrument. The' different provisions of the constitution should be harmonized if practicable; but if there should be conflict between the amendment and the constitution, the amendment,'.being the last expression of the sovereign will of the people, will prevail as an implied modification, pro tanto, of the former provision. Hammond v. Clark, 136 Ga. 313 (10), 314 (71 S. E. 479, 38 L. R. A. (N. S.) 77).

3. The proposal of 1912 provides that “All persons voting at said election in favor of adopting the said proposed amendment to the constitution shall have written or printed on their ballots the words ‘for ratification of amendment to Article 6, Section 7, of the Constitution, authorizing the establishment of other Courts in certain cities in lieu of Justice Courts.’ ” The question is, have the people, voting in this form, voted for ratification of all the provisions of the amendment, or onty for ratification of those provisions which authorize the establishment of other courts in certain cities in lieu of justice courts ? Article 13 of the constitution did not prescribe the details relating to the manner of submission, but left them to the wisdom of the legislature. It did provide for the publication of the proposed amendment, as a means of giving .wide and extensive information of the exact nature of the proposed change or addition. It was never contemplated that the entire proposed amendment should be printed on the ballot. It was within legislative discretion to adopt some formula by which the voter would express his assent or dissent to the proposed amendment. The formula prescribed by the legislature was not intended for the purpose of informing the voter as to the full contents of the amendment. On the contrary, the formula was intended as the declaration by the voter of his approval or disapproval of the amendment which had been published in each congressional district. The amendment was submitted to the elector, and the formula prescribed was simply to elicit his expression as to whether or not the proposed amendment should become a part of the organic law. The formula written or printed on Ms ballot was but tbe legislative means of obtaining bis expression upon tbe published proposal; and when he adopted the formula he indicated his vote upon the whole amendment which was submitted, and not a mere part.

All the Justices concur.