Wall v. Morris

101 S.E. 683, 149 Ga. 632, 1919 Ga. LEXIS 353

• Court: Supreme Court of Georgia
• Decided: December 12, 1919
• Docket: No. 1514
• Status: Published

Opinions

Beck, P. J.

1. The constitution of 1877, article 6, section 13, paragraph 1 (Civil Code, § 6533), provides as follows: “The judges of the Supreme Court shall have, out of the treasury of the State, salaries not to exceed three thousand dollars per annum; the judges of the superior courts shall have salaries not to exceed two thousand dollars per annum; the attorney-general shall have a salary not to exceed two thousand dollars per annum; and the solicitors-general each shall have salaries not to exceed two hundred and fifty dollars per annum; but the attorney-general shall not have any fee or perquisite in any cases arising after the adoption of this constitution; but the provisions of this section shall not affect the salaries of those now in office.” Paragraph 3 (Civil Code, § 6534) provides as follows: “The General Assembly may at any time, by a two-thirds vote of each branch, prescribe other and different salaries for any, or all, of the above officérs; but no such change shall affect the officers then in commission.” The legislature of 1916 (Acts 1916, pp. 34, 36) passed' an act to amend the constitution by adding at the end of paragraph 3, last above quoted, the following: “Provided, however, that the General Assembly shall have power, at'any time, by a majority vote of each branch, to abolish the fees accruing to the office of - solicitor-general, in any particular judicial circuit, and in lieu thereof to prescribe a salary for such office in addition to the salary prescribed in paragraph 1 of this section of this article, and without regard to the uniformity of such salaries in the various circuits, and shall have the further power to determine what disposition shall be made of the fines, forfeitures, and fees accruing to the office of solicitor-general- in any such judicial circuit where the fees are abolished.” This amendment was subsequently ratified by a vote of the people on'November 7, 1916, and the Governor issued his proclamation accordingly on December 15; 1916. . One of the questions in this ease is whether the act-of 1918 (Acts 1918, p. 369), abolishing the fees pertaining to the office of the solicitor-general of the Cordele Circuit and' providing a salary in lieu thereof, payable out of-the county treasuries of- that circuit, is violative of the foregbing -provisions of the constitution. It is insisted that the salaries of the judges of the superior court and of the solicitors-general must come from the same source, to wit, the State treasury. In Clark v. Hammond, 134 Ga. 792, 795, 799 (68 S. E. 600), it was held; “Under a proper construction of aft. 6, sec. 13,: par. 1 and &,- of the constitution of 1877, salaries of the judges of the superior courts-are payable exclusively from the State-treasury. ¡In so far as the act of 1904 (p. 73), as .amended by the act of 1905 (p. 100) and'the act of 1906 (p. 56), purports to supplement salaries - of the judges of the superior courts from the-county treasuries, it is void.” In the course of the opinion, by, Atkinson, J’., it was said; “It thus appears from the history of the subject, as derived from the provisions of all the constitutions and acts of the legislature with reference-thereto, that there was an uninterrupted practice upon the part-of the lawmaking powers, up to the time-of the adoption of the constitution of -1877, of making provision'for' payment of the-salaries of the judges of-the superior courts out of the' treasury of the State. There- was never any suggestion that the salaries might be paid from different sources, but the uniform practice was to provide-for payment of each salary as a whole from one source — the treasury of the State.” Again, it was said; “The reasoning which favors the constitutionality 'of' local taxation for 'the payment' of the- salaries of judges of other courts'might have had some bearing upon the question relative to the payment of the salaries- of the judges of the superior courts, if the construction of art. 6, sec. 13, par. 1, were doubtful, and if at the time of 'the adoption' of' the constitution of-1877 such Salaries were payable under any existing statute in part or wholly from the county treasuries; but the statutes relative to the payment of «the judges of the superior courts were-not of that character.’ On the contrary, under them such salaries were payable-exclusively from the State treasury.” 1 The decision in Clark v. Hammond, Supra, merely holds that under a proper construction of the - constitution, the salaries of the judges of the superior courts are payable exehisively from the treasury of the State; that neither the provision of article 7, section 6, paragraph 2, of the constitution (Civil Code, § 6562), enumerating* and' restricting the purposes for which a tax may be levied and collected' by the'various counties of the State; nor the provision of article 6, section- 13; paragraph 2, of the- constitution of 1877, which authorizes the. General "Assembly to “prescribe other and different salaries for any of all”"of- the officers designated in paragraph'!' of-¡article 6,-section T3‘of ‘the-’ constitution;'-purport to' deal with the sources -from' which the salaries‘of'judges’ of 'the' superior' court -might - be paid. With respect to the salaries of the judges of the superior Courts, the‘ provisions of-all constitutions, and of the-"acts of the General Assembly with reference thereto, establish" beyond doubt*-that these salaries weTe'payable'wholly'from the1' treasury of‘.the’State, and1 ffoni'no other* source'whatever: It is' true'that! under the'constitution' of '1877, prior'" tb the'‘amendment’ of 1916;'And unde!‘all prior constitutions;'‘tire salaried of tlie judges of -the superior courts and solicitors-general were to"be drawn from the same source; that is, the State'treasury; brit it is not true' that the salaries of ‘ solicitors-general, -Under thé Constitution of 1877,' constituted the exclusive compensation of these officers. ' On the’ other-'hand, the- constitution of ’1877 Itself impliedly - recognized and continued thé long-established practice'in This State of allowing the-solicitors-general-to-derive their chief compensation from fines, forfeiture's and fee's.’-‘With respect to the attorney-general the constitution provided- that he should have a salary ñot to exceed “two thousand dollars -per annum,- V . -but the attbrn'éy-géneral shall’not’have’any fee' or perquisite in any case arising aftér the adoption" of this'Constitution:” " At the time of ’tlie’ ‘adoption ‘ of thé'constitution'of 1877; and at all times prior thereto, the salaries paid the solicitors-general ’out of tlie treasury of the State were’ merely nominal. The chief 'source of compensation' provided for these ’officers -wás "thé fines, forfeitures, áhd’fees allowed’by law. Thb essential fact upon which the decision in Clark v. Hammond was predicated was, that, with respect to the salaries of the judges of the superior courts, they were confined and limited to the amount paid to them from the treasury of the State. With respect to solicitors-general,' the salary paid by the State constitutes a part, and a small part only, of their compensation, as already noted. Compensation of these officers was in 1877 and since drawn from two separate and distinct sources. In the light of these facts, let us examine the amendment of 1916. Prior to that amendment, as we have seen, the General Assembly was given the power, at any time, by a two-thirds vote of each house, to prescribe “other and different salaries” for any of the officers designated in paragraph 1 of article 6, section 13 of the constitution. The amendment of 1916 permitted the General Assembly, by a majority vote of each house, (1) to abolish the fees accruing to the office of solicitor-general in any particular judicial circuit; (2) to prescribe a salary in lieu thereof; (3) to fix the amount of the salary; (4) to fix the salary without regard to uniformity; and (5) to make disposition of the fines, forfeitures, and fees accruing to the office of solicitor-general in any circuit where the fees were abolished. The amendment does not in express terms designate the source from which the salary must be paid. The salary, which the amendment authorizes the General Assembly to prescribe in lieu of fees, is not a mere “increase” of the salary already provided from the treasury of the State; it is, in express words, “in addition thereto;” it is a new and different salary. A two-thirds vote of each branch of the General Assembly is required, under the constitution of 1877, to provide “another or different” salary for solicitors-general; and the salary thus provided must be uniform. A majority of each house of the General Assembly may abolish the fees pertaining to the office of the solicitor-general in any judicial circuit, and may prescribe in lieu thereof a salary in addition to the salary of $250, which is payable out of the treasury of the State. If the salary which the General Assembly is thus authorized to prescribe in lieu of the fees taken away from the solicitor-general in any particular judicial circuit is therefore a different and separate salary from the one fixed in the constitution of 1877, and payable out of the treasury of the State, why is it not competent for the legislature to provide for the payment of this separate and different salary from any source from which it may be legally paid? Even more, if the constitution does not clearly imply that a different source is to be found by the General Assembly from which to pay this new and additional salary in lieu of fees theretofore allowed the solicitor-general, why is not the principle of uniformity carried forward in the constitutional scheme? Is it to be assumed that the constitution authorizes the payment of two salaries, wholly separate and distinct, to the same officer, for the same service, and out of the same treasury? When it is recalled that the amendment gives the General Assembly the power to make disposition of the fines, forfeitures, and fees accruing to the office of solicitor-general in any particular judicial circuit where a salary has been provided in lieu of such fees, it,would seem to follow as a necessary implication that the true intent and purpose of the amendment was to empower the legislature to fix the source from which the salary should be paid.

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 'áiid 'appointees of'any-department'of State; and 'eounty officers Wllo received’fees and compensation‘other than salaries,to keep'1 a'daily áccouüt'of 'such* fees axidcoxfipexisation’axidto xnake sw.oixi-itexxxized statements- qxiarterly to1 the1 eoxxXptrbller-g'eñeráb 'of; the-State; <and fux4tlier reqUirixxg the'coxnptroller-gexieralto--preserve and tabulate said "quarterly - stktexnents for- the 1 information11of'thei General Assexxxbly at the'-next‘session-thereof." ¡This'-act was-‘approved August 17, 1912. " 'Acts 1912, p. 109. This act expresslyeixuxnerated sblicitdrs-general,- > solicitors- of city - and' county dourts, - and judges'of city1 axid -county courts. '-¡It is -fail" to, assume that-this act was'in answer to' the demand of the people. -If was generally believed that certain officers of- the- State-and counties ¡were1 rbceiying fees in excess- of reasonable compensation for services ¡-rendered, and' the fee system itself was .under- disfavor. - Aside’ -from! these considerations,1 the salary "of the solicitor-geiieral; prescribed;-in liexx of the fees abolished in axxy particular judicial' circhitj-'-is'-a part of tlxe “expenses of courts,” within the meaning-of--axticie 7, section 6, paragraph-"2; oNthe constitution.

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, however, that the legislature has the power to determine and define, under this paragraph, what are expenses of courts,1 and that the courts would be bound by its definition. . ' It is ‘unnecessary for us to determine in this case whether the legislature can enlarge the common and usual meaning of these words or not.” An examination of the case will show that on August ‘3, 1889, the legislature passed an act entitled “An act to authorize the compromise and .adjustment of claims due to I-Iowell C. Glenn-and W„ D. Ellis for insolvent costs due them as solicitors of the-city court of Atlanta, and to provide for the payment thereof.” Acts 1889, p. 1153. The case really turned upon another and different question; and this' is expressly indicated- in the opinion in Adam v. Wright, 84 Ga. 720, 724 (11 S. E. 893), where it was said: “The case of Adair et al. v. Ellis et al., . . is entirely different from the ease under consideration. There the legislature soxrght by a special act, after the expiration of the offices of Ellis and Glenn as solicitors of the city court of Atlanta, to authorize -and require the commissioners of Fulton county to levy and collect .a tax to pay them for services which had long before been rendered by them as.such solicitors, and when rendered, there was a general law applicable to solicitors of the city court of Atlanta, which pointed out the mode and manner in which- they should be paid for their services.” It is true that Justice Simmons, who wrote the opinion of the court in the case of Adair v. Ellis, supra, was of the opinion that fees of solicitors-general were not within the terms “expenses of court” as used in the constitution, but his intimation that such fees might properly be included within- these terms,, when the General Assembly should so declare, is emphasized in his dissenting opinion in Chatham County v. Gaudry, 120 Ga. 121, 131 (47 S. E. 634): “Court expenses include only such items or charges as are necessary for conducting the court, and such other items as the legislature may determine are proper to be paid under the words ‘court expenses’ as used in the constitution.” The-decision in Clark v. Hammond, already noticed, is not a direct ruling upon the question here presented, for the reasons already pointed out.- However, we quote again from the- Opinion in that case: “It is not necessary to decide all that the teTm ‘expenses of court’ might embrace; but in view of the other provisions of the constitution mentioned in this opinion, it does not include the salaries of the judges of superior courts.” That the insolvent costs of solicitors-general may be treated as expenses of court, when so declared by legislative enactment, is .recognized in the case of Adam v. Wright, supra. This case was decided subsequently to the decision in Adair v. Ellis, supra, and ruled expressly that there was nothing in the constitutional provision of article 7, section 6, paragraph 2, which forbade the .payment of insolvent costs of the solicitor-general of the Augusta circuit out of any funds in the county treasury, such costs being a part of the expenses of court in the Augusta circuit. To quote from the opinion in that case: “This special or local law applicable to the Augusta circuit . . did, in our judgment, make insolvent criminal costs in that circuit a part of the expenses of court, when the payment thereof was recommended in the manner prescribed in the act.” Further: “We think the act in question is not inconsistent with the constitution of 1877.” In Adam v. Cohen, 84 Ga. 725, 726 (11 S. E. 895), it was^aid: “We think, as we have stated in the case of Adam, treasurer, v. Wright, solicitor-general, . . that the legislature had a right to provide that the services of the solicitor should be paid in the manner specified in the act, and that his fees therefor are expenses of that court. There is no general law that this act seeks to vary in its uniform operation as applicable to this court. So we do not think that the act is obnoxious to the constitution; and the solicitor has the right to be paid the sum allowed him by the judge out of the county treasury.” In the case of Clark v. Eve, 134 Ga. 788 (68 S. E. 598), it was hold that the payment o£ the salary of the judge of the city court of Richmond county, under the act approved August 15, 1905 (Acts 1905, p. 100), was not violative of article 7, section 6, paragraph 2, of the constitution. In the case of Clark v. Black, 136 Ga. 812 (3), 815 (72 S. E. 251), it was held that the “fees of the solicitor of the city court of Richmond county are an expense of that court and lawfully payable from the funds raised to defray the expenses of that court.” The third division of the opinion in that case is as follows: “It was within the power of the legislature to provide that the salary of the solicitor, in whole or in part, should be paid from the county treasury. His salary was an expense of court, to pay which a tax could be constitutionally levied” (citing Clark v. Eve, supra). See also Clark v. Reynolds, 136 Ga. 817 (7), 825 (72 ). In McWilliams v. Smith, 142 Ga. 209 (5), 220 (82 S. E. 569), it was held that the act creating the municipal court of Atlanta (Acts 1913, p. 145), which provided for the payment of the salaries of the judges thereof out of the county treasury, did not contravene article 7, section 6, paragraph 2, of the constitution, which declares that the General Assembly shall not have power to delegate to any county the right to levy a tax, except for certain specified purposes, one of which is “expenses of courts.” It will be seen, therefore, that the authorities are numerous to the effect that the salaries of judges of city and county courts, and the fees, insolvent costs, and salaries of solicitors of city and county courts, and the fees and insolvent costs of solicitors-general can be legally paid from county treasuries; and that the legislature may, and has, both prior to and subsequently to the adoption of the constitution of 1877, exercised the power to declare fees and salaries expenses of courts. When, therefore, the constitutional amendment of 1916 authorized the General Assembly, at any time, by a majority vote of each house, to abolish the fees pertaining to the office of solicitor-general in any particular judicial circuit, and to prescribe in lieu of the fees abolished a -salary in addition to the salary of $250 fixed in another paragraph of the constitution, the constitution by clear implication and necessary construction authorized the General Assembly to provide the source of payment of this additional salary. The act of 1918, abolishing the fees in the Cordele Circuit and prescribing a salary in lieu thereof, in addition to the salary of $250 payable to the solicitor-general under article 6, section 13, paragraph 1, of the constitution, requires the county authorities, as we have seen, to make provision annually for the payment of this additional salary “when levying taxes for the expenses of courts.”

2. What we.have said above disposes of what we regard as the main questions in this controversy. We cannot agree with counsel for plaintiff in error that if the act of August 8, 1918, fixing the salary, is prospective in-its operation, it violates any provision of the Federal or the State constitution, which constitutes the other grounds of attack upon the constitutionality of the act. We do not think that it has the effect of impairing the obligation of a contract, or that it deprives the complainant of his property without due process of law. While it is true that for his insolvent costs the solicitor-general had the judgment provided in the law and in a certain sense a lien upon fines and forfeitures which were to be paid subsequently into court, this lien was imperfect and incohate in its character, and could not become an actual, perfect lien until the fines should.be paid into the fine and forfeiture fund; and it was not of such nature as to give the holder a property right in the fines and forfeitures that should subsequently arise in cases not tried or disposed of. For relative to future costs it would have been competent for the legislature to change or to abolish such fines and such source of revenue to the solicitor-general under the constitution as it existed before the amendment in pursuance of which the act here attacked as unconstitutional was based. Therefore, treating the act as prospective ixx its effect, we are of the opinion that it does not violate the provisions of the State and Federal constitutions prohibiting the passage of retroactive laws, laws impairing the obligations of contracts, and the due-process clause of the Federal constitution.

3. The act does not violate the inhibition in the constitution of the State of Georgia against the passage of a special law in a case for which provision is made by an existing general law.

4. If the word “heretofore,” occurring in the caption of the act of August 8, 1918, and in the first section of the act, if given effect, should result in rendering the act in part retroactive in its effect, that part of the act may be segregated and stricken therefrom without destroying or impairing the legislative scheme, which was clearly to fix a salary for the solicitor-general and abolish the fee system after the first of January, 1919; and the presence of that word in the places stated does not render the act unconstitutional.

The act- is not unconstitutional for any of the reasons urged against it; and the judgment of the court below sustaining it is

Affirmed.

All the Justices concur, except Fish, C. J., absent, and