McFarlin v. Board of Drainage Commissioners

113 S.E. 447, 153 Ga. 766, 1922 Ga. LEXIS 169
CourtSupreme Court of Georgia
DecidedJuly 12, 1922
DocketNos. 2884, 2903
StatusPublished
Cited by6 cases

This text of 113 S.E. 447 (McFarlin v. Board of Drainage Commissioners) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McFarlin v. Board of Drainage Commissioners, 113 S.E. 447, 153 Ga. 766, 1922 Ga. LEXIS 169 (Ga. 1922).

Opinion

Hill, J.

(After stating the foregoing facts.)

1. The act of 1911 — Acts 1911, pp. 108, 1,32; Park’s Code §§ 439 (a) -439 (oo), known as the drainage act, has been under review by this court twice. Almand v. Pate, 143 Ga. 711 (85 S. E. 909); Almand v. Board of Drainage Commrs., 147 Ga. 532 (2) (94 S. [769]*769E. 1028). In the first case the act was held to be constitutional as against the attacks then made upon it. The demurrer in the present case raises other questions as to the constitutionality of the act. The demurrers and amended demurrers in the present case raise questions as to the constitutionality of the act of 1911, supra, upon several 'grounds. First, the act is attacked as being contrary to and obnoxious to art. 3, sec. 7, par. 8, of the constitution of Georgia of 1877 (Civil Code of 1910, § 6437), which provides that “No law or ordinance shall be passed which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.” The caption of the act of 1911, supra, is as'follows: “An act to promote the public health, convenience, and welfare by leveeing, ditching, and draining the wet, swamp, and overflowed lands of the State, and providing for the establishment of levee or drainage districts for the purpose of enlarging of changing any natural watercourses, and for digging ditches or canals for securing better drainage or providing better outlets for drainage, for building levees or embankments and installing tide-gates or pumping plants for the reclamation of overflowed lands, and prescribing a method for so doing, and providing for the assessment and collection of the cost and expense of the same, and issuing and selling bonds therefor, and for the care and maintenance of such improvements, when constructed; and for other purposes.” Tt is insisted that in so far as the act of 1911 provides that “ The treasurer of the county in which the proceeding was instituted shall be ex-officio treasurer of such drainage commissioners,” and in so far as the same provides that “ The official bonds of the tax-collector and county treasurer shall be liable for the faithful performance of the duties herein assigned them,” it is void and unconstitutional for the reason that it is obnoxious to the above-quoted provision of the constitution. It is argued that nowhere in the title of the act above quoted is it expressed that the duties of the county treasurers of the State shall be enlarged or added to, nor that the additional office of treasurer of such drainage commissioners shall be devolved upon the county treasurer, and that it is nowhere expressed in the title of the act of the General Assembly that the official bonds of the county treasurer shall be liable for the faithful performance of the duties assigned them by the act. It is further insisted that the duties of [770]*770the county treasurer were, at the time of the passage of the act, fully set forth and declared in the Civil Code of 1910, § 574 et seq., and that the duties of the county treasurer are a distinct and separate subject-matter; and therefore that the act of 1911, supra, refers to more than one subject, in that it refers to the establishment of a drainage district; and also refers to the duties of county, treasurer, which is a separate and distinct subject-matter from the establishment of a drainage district. AYe have set forth at some length the contentions of the plaintiff in error in his attack upon the constitutionality of the act of 1911, in order that the issue raised by the petition and demurrer should be squarely met.

As early as the case of Mayor &c. of Savannah v. State, 4 Ga. 26, 38, Judge Lumpkin, delivering the opinion of the court, stated the history and the reason for this constitutional provision, in the following language; “As to the objection that the act of 1841 is violative of the 17th section, 1st article of the constitution of Georgia, because its title is at variance with the body of the act, I would observe that the traditionary history of this clause is, that it was inserted in the constitution of 1798 at the instance of General James Jackson, 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, raider the caption of an act ‘ for the pajunent 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.'’ The true interpretation of this clause has become too well settled by the usage and practice of every department of the State government to be now disturbed. It is, that so much only of a statute is void as contains matter different from what is expressed in the title. Such has been the uniform construction put upon this provision, by the State courts separately, and of the judges in convention.” But is the matter in the body of the act of 1911, which it is contended is at variance with the title of the act, such as to render it obnoxious to the inhibition of the constitution said to be offended? In Martin v. Broach, 6 Ga. 21 (50 Am. D. 306), this court, in construing this same provision, decided: “ 1. The 17th section of the 1st art. of the State constitution, inhibiting the passage of any law, by the legislature, containing any matter different from what is expressed in the [771]*771title, does not require that the title should set forth a synopsis of the entire act. 2. AVhere the title specifies some of the objects for which the statute was passed, and contains this general clause'—• c and for other purposes therein contained/ portions of the act not specially indicated in the title are, nevertheless, good, under this general clause.” The title of the act of 1911 contains this general clause. Furthermore, we are of the opinion that the matter indicated in the body of the act as not being included in the title of the act, is germane to the general purpose of the act and does not subject that portion of the act to the criticism urged against it. After stating in the first portion of the caption of the act some of its purposes, the caption also suggests a provision for the assessment and collection of the cost and expense of the same, and using .and selling bonds therefor,” etc. AAre are of the opinion that the provision in the body of the act to require the county treasurer to ■become ex-officio treasurer of the drainage commissioners, and that the official bonds of the tax-collector and county treasurer shall be liable for the faithful performance of, the duties assigned them, is germane to the main purpose of the act. It would certainly be remarkable and unusual for the act to provide for the collection of the expense of ditching and draining, etc., and yet not provide some official whose duty it should be to take charge of and preserve the money deposited with him for safekeeping, and for paying it out according to law. See Mayor &c. of Americus v. Perry, 114 Ga. 871 (40 S. E. 1004, 57 L. R. A. 230); City of Cartersville v. McGinnis, 142 Ga. 71 (2) (82 S. E. 487, Ann. Cas. 1915D, 1067); Davidson v. Kirkwood, 152 Ga. 357 (110 S. E. 154); Crowell v. Akin, 152 Ga. 126 (108 S. E. 781).

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Bluebook (online)
113 S.E. 447, 153 Ga. 766, 1922 Ga. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfarlin-v-board-of-drainage-commissioners-ga-1922.