68 S.E. 600 (Ga. 1910), Clark v. Hammond
| Citation | 134 Ga. 792,68 S.E. 600 |
| Docket Number | . |
| Date | 14 July 1910 |
| Parties | CLARK, County Treasurer, v. HAMMOND. |
| Court | Georgia Supreme Court |
Page 600
Syllabus by the Court.
Under a proper construction of article 6, § 13, pars. 1, 2, 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 Acts of 1905, p. 100, and the Act of 1906, p. 56, purports to supplement salaries of the judges of the superior courts from county treasuries it is void.
Error from Superior Court, Richmond County; B. T. Rawlings, Judge.
Mandamus by H. C. Hammond against W. A. Clark, Treasurer of Richmond County. Judgment for plaintiff, and defendant brings error. Reversed.
1. The law relied on as a basis for the writ of mandamus was the act approved August 6, 1904 (Acts 1904, p. 73), as amended by the act approved August 15, 1905 (Acts 1905, p. 100), and later by the act approved July 31, 1906 (Acts 1906, p. 56). As thus amended the act declared, among other things, the following: "That the judges of the superior courts of all the judicial circuits, which are now or may hereafter be established in this state, having therein a city with a population of not less than 34,000 inhabitants, according to the United States census of 1900, shall receive a salary of five thousand dollars per annum, the difference in amount between the sum paid said judges out of the treasury of the state, and said five thousand dollars to be paid out of the treasury of the counties in which said cities are located, as other court expenses of said counties are paid; provided, that the provisions of this act shall not affect the salaries of such judges as are now in commission." One ground of attack upon the validity of this statute was that it was violative of article 6, § 13, par. 1, of the Constitution of the state of Georgia (Civ. Code 1895, § 5864), because under that provision of the Constitution salaries of the judges of the superior courts were required to be paid out of the treasury of the state exclusively, and that the Legislature was prohibited from making any part of the salary chargeable upon the county treasury. The provision of the Constitution referred to is 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
Page 601
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." Under the view we take of the case, the decision is controlled by the construction to be placed upon this clause of the Constitution. Article 3, § 2, of the Constitution of 1798, declared: "The judges shall have salaries, adequate to their services, established by law, which shall not be increased or diminished during their continuance in office; but shall not receive any other perquisites or emoluments whatever, from parties or others, on account of any duty required of them." Watkins' Dig. p. 39. Thus it was declared at that early date that judges of the superior courts should have salaries, but nothing was said as to the source from which they should be paid. Subsequent enactments by the Legislature provided the amount of the salaries, and designated that they were "payable quarterly out of any money in the treasury." Act 1804 (Clayton's Dig. p. 178); Act 1819 (Cobb's Dig. p. 1023). Later, the act of 1857 (page 129) increased the salaries of the judges of the superior courts, but did not specify expressly the source from which they should be paid. In 1865 the Constitution again dealt with the matter, making provision with reference thereto substantially the same as those contained in the Constitution of 1798, as appears in the foregoing excerpt. See Const. 1865, art. 4, § 3, par. 1 (Irwin's Code 1867, § 4975). The Constitution being silent as to the source from which the salary should be paid, provision was made, in section 8 of the act approved March 13, 1866 (Acts 1865-66, p. 11), for a standing appropriation to pay the salaries of all the officers of this state, whose salaries are fixed by law, out of the general taxes. This included, among others, the salaries of the judges of the superior courts. It thus appears that up to 1866 the salaries of the judges of the superior courts had never been paid elsewhere than out of the state treasury, though the Constitution had not declared in express terms the source from which they should be paid. It was not until 1868 that the Constitution declared, in so many words, that they were payable from the state treasury. By article 5,§ 10, par. 1, of the Constitution of 1868 (Code 1873, § 5113), it was declared: "The judges of the Supreme and superior courts, and the Attorney and Solicitors General shall have, out of the state treasury, adequate and honorable salaries on the specie basis, which shall not be increased or diminished during their continuance in office. The district judges and district attorneys shall receive, out of the treasuries of the several counties of their districts, adequate compensation, on the specie basis, which shall not be increased or diminished during their term of office; but said judges shall not receive any other perquisites, or emoluments whatever, from parties, or others, on account of any duty required of them." The introduction of district courts into the state's judicial system, with the salaries of the judges intended to be payable out of the county treasuries, furnished a sufficient reason for the makers of the Constitution to exercise greater particularity in specifying the source from which judicial salaries should be paid. As the different courts were intended to be paid from separate sources, the source from which each was intended to be paid was expressly and explicitly stated. After the district courts were abolished (Acts 1871-72, p. 68), the fact of their introduction in the manner above indicated no longer afforded a reason for the same particularity in...
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